conversation denied on that date with McDonnell and Bronstein. He had previously testified that Bronstein was not present at the time. Objection was made. He was permitted to answer yes or no, and said "Yes." The defendants moved to strike out the testimony, and asked the court to instruct the jury to disregard it. The court said, "Objection sustained;" the witness left the stand; no exception was taken to the failure of the court to strike the testimony and instruct the jury to disregard it. The court was apparently under the impression that he had done what he was asked to do by the defendants. The record would indicate that the defendants were satisfied. They asked no questions of Sutton and did nothing further. While it is not necessary to save an exception to the admission of evidence where a timely objection has been interposed (Corliss v. United States [C. C. A.] 7 F.[2d] 455), we think that in a situation such as this, if the defendants were not satisfied with the court's ruling, the matter should have been called to his attention by an exception. However, the error was without substance. There was no claim by the government that Bronstein was present and had any such conversation, and the jury could not have been misled by it, even if they failed to understand that the court had intended to eliminate it by his ruling.

[5] The information referred to sale or possession of "intoxicating liquor, to wit, gin." The evidence indicated that the liquor was alcohol or moonshine whisky. It is claimed that this constituted a fatal variance. There

is no merit in the contention. If the words, "to-wit, gin," had been left out, the information was sufficient. Massey v. United States (C. C. A.) 281 F. 293. They were mere surplusage, an allegation without which the pleading would be adequate. There was no variance-no disagreement between the essential allegations and the proof. Mathews v. United States (C. C. A.) 15 F. (2d) 139; Meyers v. United States (C. C. A.) 3 F. (2d) 379; Bullard v. United States (C. C. A.) 245 F. 837. The defendant was not misled, and the conviction in this case will be a bar to any prosecution for selling or having in possession the same liquor. Bartell v. United States, 227 U. S. 427, 33 S. Ct. 383, 57 L. Ed. 583. The liquor, in all probability, resembled gin as closely as it did any recognized preprohibition liquor. Most modern hard liquors, aside from their flavor, come from the same still, and it is a matter of common knowledge that a few drops of the oil of juniper constitutes these days the difference between beverage alcohol and so-called gin.

[6] To refuse the requested instruction was not error. The jury was told to consider, in determining the credibility of the witnesses, the interest of any witness in the outcome of the case, or any bias or prejudice disclosed. The purpose of the defendants' request is apparent. It was to have the court single out the government's main witnesses, and to cast doubt upon the reliability of their testimony. Generally it is the duty of a jury to use the same care in determining the credibility and the weight of the testimony of each witness in the light of all the circumstances his apparent truthfulness, his interest in the case, and any motives he might have to testify falsely or to color his testimony. For a court to tell a jury that greater care was to be used with relation to certain witnesses than with relation to others would not ordinarily be required nor justified. In this case, we think the court was right in refusing to give this instruction.

[7, 8] The defendants' exceptions to the instructions given were contained in this statement:

"We wish to save an exception to the charge of the court upon the facts; that is, that the facts were not stated in accordance with the evidence given by the witnesses upon the stand; to the charge as given by the court upon the law, for the reason that the law is not correctly stated, and is upon the weight of the evidence, and in other respects the rules of law were not given as fully as they should have been."

No trial judge could tell from this what it was claimed was wrong with the charge. A general exception to a charge is equivalent to no exception, if the charge contains any correct propositions of law at all. Where proper exceptions are not taken, faults in the instructions are not required to be considered in this court. Hammert v. United States (C. C. A.) 14 F. (2d) 827; C., M. & St. P. Ry. Co. v. Harrelson (C. C. A.) 14 F. (2d) 893; Feigin v. United States (C. C. A.) 3 F.(2d) 866; Allen v. United States (C. C. A.) 4 F. (2d) 688; Corliss v. United States (C. C. A.) 7 F.(2d) 455, 458; Silkworth v. United States (C. C. A.) 10 F. (2d) 711, 720; Cohen v. United States (C. C. A.) 294 F. 488; Penn. Co. v. Whitney (C. C. A.) 169 F. 572.

We need not, therefore, consider alleged defects in the charge, except, perhaps, to notice whether there were any serious errors therein fatal to the defendant's rights. Lamento v. United States (C. C. A.) 4 F. (2d) 901. We have examined the charge. While there are some statements contained in it which, standing alone, would be objection

5. Limitation of actions 124-In seaman's action for injuries, application for leave to file amendment of complaint joining additional defendant held equivalent to actual amendment, and defense of limitations not meritorious (Merchant Marine Act, § 33 [Comp. St. § 8337a]; Employers' Liability Act, § 6 [Comp. St. § 8662]).

In seaman's action under Merchant Marine Act, § 33, 41 St. 1007 (Comp. St. § 8337a), to recover for personal injuries, plaintiff's application for leave to amend original complaint, so as to join another part owner of vessel on which he was injured as party defendant, which was filed within two years after date of in

CO., Inc.

(Circuit Court of Appeals, Fifth Circuit. January 21, 1927.)

No. 4921.

1. Parties 76(1)-Under Alabama statute, capacity in which one sues or is sued stands admitted, in absence of special plea (Code Ala. 1923, § 9470).

Under Code Ala. 1923, § 9470, providing that, in action for injuries to person, the general issue is not guilty, and puts in issue all the material allegations of the complaint, the capacity in which one sues or is sued stands admitted, in the absence of a special plea.

2. Torts 26(2)-Plea of general issue in tort action denies only wrong alleged (Code Ala. 1923, § 9470).

Under Code Ala. 1923, § 9470, plea of general issue in tort action denies only the wrong and the injury alleged in the complaint.

3. Appeal and error -717-Trial court's opinion cannot take place of bill of exceptions, but may be examined to ascertain grounds for rulings.

Opinion of trial court cannot take the place of a bill of exceptions, but may properly be examined by the appellate court for the purpose of ascertaining the grounds on which rulings in the course of a trial were made and judgment entered.

4. Appeal and error 717-In seaman's action for injuries, trial court's opinion held properly considered, to determine ground for ruling denying recovery against particular defendant and correctness of ruling properly before court.

In action at law to recover for personal injuries to seaman, where recovery against a part owner, who was asserting defense of limitations, was denied to plaintiff, held, on writ of error by plaintiff, where question of sufficiency of proof against such defendant was not reviewable, because evidence was not brought up by bill of exceptions, trial court's opinion, though not permitted to take the place of a bill of exception, could be examined to determine on what ground recovery was denied, and, on its appearing therefrom that defense of limitations had been sustained, such question was properly presented for review, as against contention that denial of recovery might have been based on question of sufficiency of proof, which was not reviewable in absence of evidence.

and defense of two-year statute of limitations under Employers' Liability Act, § 6 (Comp. St. § 8662), adopted by Merchant Marine Act, as amended, was not available to defendant so joined, though actual amendment of complaint was not made until after two years from date of injury.

6. Master and servant 2532-Employers' Liability Act is limitation on right of action, not on remedy only (Employers' Liability Act, 6 [Comp. St. § 8662]).

Employers' Liability Act, § 6 (Comp. St. 8 8662), is a limitation on the right of action, and not on the remedy only, as affects waiver by a defendant.

In Error to the District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge.

Action by John Rademaker against the Whitney & Bodden Shipping Company, in which plaintiff by amended complaint joined the E. D. Flynn Export Company, Inc., as a party defendant. Judgment for plaintiff against the first-named defendant only, and he brings error. Judgment reversed, and cause remanded.

Alex T. Howard and Gregory L. Smith, both of Mobile, Ala., for plaintiff in error.

Palmer Pillans and Alexis T. Gresham, both of Mobile, Ala. (Pillans, Cowley & Gresham, of Mobile, Ala., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge. John Rademaker, plaintiff, brought an action at law, under section 33 of the Merchant Marine Act of 1920, 41 Stat. 1007 (Comp. St. § 8337a), to recover damages for a personal injury sustained by him while he was employed as a seaman on the American schooner Resolute. The complaint alleges that the injury was caused by the negligence of the schooner's mate in the giving of an order which plaintiff was in duty bound to obey. It was originally brought only against the Whitney &

Bodden Shipping Company as owner of the schooner; but on May 27, 1925, within two years from the date of injury, plaintiff filed the following application:

"Comes the plaintiff and shows that, at the time he signed the articles of the schooner Resolute, the defendant was the owner, and so shown upon the articles of said schooner for the voyage; that he now learns that whilst said vessel was on the high seas, and before the injury complained of, a large share, to wit, twenty-eight and one-half sixty-fourths interest (282/64) of the ownership of said vessel was transferred to the E. D. Flynn Export Company, Inc., a corporation having its principal office and place of business at Mobile, within the division and district aforesaid. Wherefore plaintiff moves the court to be allowed to amend his complaint by adding thereto as a party defendant the said E. D. Flynn Export Company, Inc., a corporation as aforesaid, and that the clerk be directed to issue to said E. D. Flynn Export Company, and deliver to the marshal for service, proper process to duly make said corporation a defendant hereto."

On the same day the District Judge signed an order "that the plaintiff is allowed to amend his complaint, and make the said E. D. Flynn Export Company a party defendant," and process was issued and served on it. After the expiration of two years from the date of injury, plaintiff formally amended his complaint by incorporating in it the E. D. Flynn Export Company as a party defendant, and alleging its interest as a part owner of the schooner, in accordance with the averments of fact contained in his previous application for leave to amend, and that company, hereinafter called defendant, thereafter pleaded the general issue of not guilty, and also filed a number of special pleas to the merits, including a plea of the statute of limitations of two years prescribed by section 6 of the federal Employers' Liability Act (Comp. St. § 8662), and adopted by the Merchant Marine Act, as amended. Another special plea is to the effect that defendant, at the time of plaintiff's injury, was the owner of 57/128 interest in the Resolute, and was therefore entitled to the benefits of the limitation of liability allowed by section 4283 of the Revised Statutes (Comp. St. § 8021).

The jury returned a verdict against the Whitney & Bodden Shipping Company, and assessed damages at $1,100, but were instructed by the court, over the objection and exception of plaintiff, that they could not find a verdict against the E. D. Flynn Export

Company. Judgment was entered up against the shipping company for 57/28 of the verdict, but the suit was dismissed as against the defendant export company, for the reason, as appears from a written opinion of the District Judge, that, as suit was not brought against that defendant within two years from the time the cause of action accrued, it was barred by the statute of limitations. The evidence has not been brought up by a bill of exceptions, and is therefore not before us.

Whether the trial court erred in ruling that the cause of action against defendant was barred is the question which plaintiff seeks to present on this writ of error. Defendant insists that, as the evidence is not before us, it is impossible to determine that the direction of a verdict in its favor was not justified by reason of a lack of proof sufficient to sustain plaintiff's cause of action against it; that the District Judge's opinion cannot take the place of a bill of exceptions, and hence that it is not made to appear that the statute of limitations, which was specially pleaded, formed the basis of the instruction for a verdict and of the judgment for defendant. [1,2] The act of negligence complained of was that of the mate of the schooner. Liability was asserted against both defendants, upon the doctrine of respondeat superior, merely because, as owners of the schooner, they were chargeable with the negligence of the mate. If for any reason one defendant was not liable, it would seem that for the same reason the other was not. That defendant was a part owner is admitted by a special plea. Section 9470, Code of Alabama, provides that, in actions for injuries to the person, the general issue is not guilty, and puts in issue all the material allegations of the complaint. But the capacity in which one sues or is sued stands admitted in the absence of a special plea. Under that section the general issue in a tort action only denies the wrong and injury alleged in the complaint. Louisville & N. R. Co. v. Trammell, 93 Ala. 350, 9 So. 870; Espalla v. Richard, 94 Ala. 159, 10 So. 137; Fourth National Bank v. Portsmouth Cotton Oil Refining Corp. (C. C. A.) 284 F. 718. [3, 4] The opinion of the trial court cannot take the place of a bill of exceptions. Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478. But we think such opinion may properly be examined by an appellate court for the purpose of ascertaining the grounds on which rulings in the course of a trial were made, and judgment entered.

Gross v. U. S. Mortgage Co., 108 U. S. 477, 486, 2 S. Ct. 940, 27 L. Ed. 795; Adams County v. Burlington R. R. Co., 112 U. S. 123, 129, 5 S. Ct. 77, 28 L. Ed. 678; Virginian Ry. Co. v. United States (Dec. 13, 1926) 47 S. Ct. 222, 71 L. Ed. In this case, the opinion of the District Judge conclusively shows that a verdict was directed and judgment entered for defendant upon the sole ground that plaintiff's cause of action was barred by statute, because defendant was not proceeded against within two years from the date of plaintiff's injury. In our opinion, the error assigned is sufficiently presented for review.

[5] Section 6 of the federal Employers' Liability Act provides that no action shall be maintained under it, unless it is begun within two years from the date the cause of action accrued, and is applicable to suits under the Merchant Marine Act. Panama R. R. Co. v. Johnson, 264 U. S. 375, 44 S. Ct. 391, 68 L. Ed. 867. The limitation of that section is upon the right and not merely upon the remedy. Atlantic Coast Line R. R. Co. v. Burnette, 239 U. S. 199, 36 S. Ct. 75, 60 L. Ed. 226. It follows that, if plaintiff did not begin his action within two years from the time it accrued, the judgment of the court below was correct. But we are of opinion that the action was begun within the statutory period. Plaintiff's application was more than a mere motion for leave to amend. It was a complete amendment, when considered in the light of the original complaint.

Leave was not asked to change any averment of fact upon which liability was asserted, or the grounds upon which recovery was originally sought, but merely to make defendant a party because of its ownership of a stated interest in the schooner. In this state of the pleadings, process was issued and served upon defendant, before any right of action against it was barred. While there are cases to the contrary, we think the better rule, supported by the weight of authority, is that an application for leave to amend, as full and comprehensive as this one is in its averment of facts, stands in the place of an actual amendment. 31 Cyc. 387; Palmer v. Lesne, 3 Ala. 741; Carter v. Fischer, 127 Ala. 52, 28 So. 376; New York Central, etc., R. R. Co. v. Kinney, 260 U. S. 340, 43 S. Ct. 122, 67 L. Ed. 294. [6] As the applicable statute is a limitation upon the right of action, and does not affect the remedy only, our conclusion is not influenced by the theory that it can be waived by a defendant after it begins to run, either 17 F. (2d)-2

by treating a motion to amend as sufficient, or by failing to insist upon a formal amendment.

The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

WILLIAMS, Mayor, et al. v. ATLANTIC COAST LINE R. CO.

(Circuit Court of Appeals, Fourth Circuit. January 15, 1927.)

No. 2550.

1. Courts 359-Federal courts must apply state law in determining question affecting title to land.

Federal courts, in deciding question affect

ing title of land, must apply law of the state

in which land is situated.

654-Evidence

2. Municipal corporations held to show railroad had title to right of way claimed by municipality.

Evidence held to show that railroad had title to portions of right of way claimed by municipality, and that municipality had not acquired right to use such lands as streets by

prescription or otherwise.

3. Adverse possession 31-In South Caro

lina, title to portions of railroad right of way may be adversely acquired only by construction of permanent structure thereon.

Under South Carolina law, title of portions of railroad right of way may be acquired by adverse possession; but possession must have been open, notorious, uninterrupted, exclusive, hostile, and under a claim of right, and evidenced by erection of some permanent structure, the effect of which has been to exclude railroad from use of right of way, accompanied by notice to the railroad of an intention to claim adversely.

4. Estoppel 93(1)—“Estoppel," precluding railroad asserting title to right of way claimed by municipality, arises only when it permits expenditures or improvements thereon.

"Estoppel" sufficient to preclude railroad from asserting title to right of way claimed. by municipality arises only where railroad stands by and permits expenditures or improve. ments on right of way under circumstances calling for protest.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Estoppel].

does

not

6. Railroads 82 (2)-Railroad abandon portion of right of way by permitting public to travel over parts not used.

Railroad's permitting public to travel on parts of right of way not needed by it does not constitute abandonment thereof.

7. Injunction 35 (2)-Railroad in fact In possession, though permitting public to use right of way, may maintain bill to enjoin paving street thereon.

Where railroad is in fact in possession of right of way, though permitting public to use portions thereof in subordination to its rights, its possession is such as to authorize maintaining bill to enjoin town from laying hard surface paving on portions of street alleged to be within right of way.

8. Injunction 36(2)-Injunction is proper remedy to prevent cloud to railroad's title to right of way by paving certain portions of street therein.

Railroad is entitled to injunction to prevent cloud being cast on its title to right of way by paving certain portions of street alleged to be within right of way.

9. States 203-State is not necessary party to railroad's suit to enjoin town from paving

certain streets within right of way.

State of South Carolina is not necessary party to railroad's suit to enjoin town from paving certain portions of street alleged to be within right of way.

Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Ernest F. Cochran, Judge.

Suit by the Atlantic Coast Line Railroad Company against R. J. Williams, as Mayor, and A. H. Buchan and others, constituting the Town Council, of Mullins, S. C., and the Town of Mullins, S. C. Decree for complainant, and defendants appeal. Affirmed.

A. F. Woods, of Marion, S. C., for appellants.

M. C. Woods, of Marion, S. C., and Henry E. Davis, of Florence, S. C. (Thomas W. Davis, of Wilmington, N. C., on the brief), for appellee.

Before ROSE and PARKER, Circuit Judges, and MCCLINTIC, District Judge.

PARKER, Circuit Judge. This is an appeal from an order granting an injunction. The complainant in the court below was the Atlantic Coast Line Railroad Company, a corporation of the state of Virginia, and the defendant was the town of Mullins, S. C. The jurisdiction of the court was based on diversity of citizenship. The bill prayed that the town be enjoined from laying hardsurface paving upon certain portions of

streets alleged to be within the right of way of the railroad. The town filed answer, denying the title of the railroad to the land in controversy, setting up title in itself by prescription, adverse possession, abandonment, and estoppel, and asserting that the railroad had no such possession of the locus in quo as would enable it to maintain a bill in equity for injunctive relief.

The learned District Judge exhaustively reviewed and analyzed the evidence in an able opinion filed in the cause, and it is not necessary that we repeat here what was so well said by him. The facts necessary to an understanding of the points involved, briefly stated, are as follows:

The complainant railroad is the successor in interest and vested with all the rights acquired by the Manchester & Wilmington Railroad Company, which, in the year 1852, constructed a line of railway through the territory now embraced by the town of Mullins. Section 17 of the charter of that company provided that, in the absence of any contract signed by the owner, it should be presumed that the land upon which the railroad should be constructed, together with a space of 65 feet on each side of the center of the road, had been granted to the company. Section 18 provided that all lands within 65 feet of the center of the road, not theretofore granted to any person nor appropriated by law to the use of the state, should vest in the company as soon as the line of road should be definitely laid out, and that any grant thereafter covering such lands should be void.

In October, 1849, one William S. Mullins executed and delivered to the railroad comany tract of land belonging to him through pany a deed, authorizing it to enter upon which it might desire to construct its road, and to use, occupy, and possess land adjacent to its road, not exceeding 130 feet in width. This deed, however, did not describe any tract of land as owned by the grantor, and there is no competent evidence showing that he ever owned any part of the land in controversy. As stated above, the railroad was constructed in 1852, and since that time the complainant railroad and its predecessors in title have claimed, possessed, occupied, and exercised dominion over a right of way through the town 130 feet in width.

The portions of streets in dispute are South Front street, lying for two blocks on the southerly edge of the right of way between Smith and Park streets; two small triangular portions of North Front street,