the collision by the use of all the means which were reasonably within the control of those charged with her navigation, she must be acquitted; for the cause of the collision would be a cause not produced by her. But the burden is upon her to show, not only that her sheer was caused by the wrongful conduct of the Mather, but that her own management was such, both before and after the sheer, as not to have contributed to the final collision." We cannot assent to the argument that the Smith was misled and had no sufficient reason to suppose that the Masaba would persist in her effort to pass after reaching the dredged approach to the canal, a thing prohibited by the canal rules, or would persist in going abreast, a course likewise forbidden by the canal rules. But it is difficult to see how she could fail to misapprehend her purpose to persist in her effort to pass, or at least to continue abreast. The libel of the Smith, referring to this matter, says: "As the Masaba came up abreast of the Smith, she came in closer to the latter on a course somewhat converging with the Smith's course. When her bow was thus abreast of the Smith, it was apparent that, as the vessels were then going, the Smith must enter the canal abreast of the tow. Thereupon, it being apparent that the Smith could not get ahead of the Masaba, which continued going at apparently full speed, the Smith's engine was checked in an endeavor to drop behind the tow." This refers to a checking which occurred at the head of the lake, and just before entering the canal approach, and just before the exchange of passing signals with the Aurora. This first checking does not seem to have been made with any view of dropping back. Mr. Moore, her first officer, and in charge of her navigation then, says of this: "I saw the Aurora coming out, with her consort, the Aurania, and was getting up pretty close to them, and I looked around and saw the Masaba nearly abreast of us. We ran along a little while, and it wasn't a great while before he pulled up abreast of us. I was getting pretty well to the dredged cut then, and I checked down, which was a thing we always do there, generally check down and go slow speed, and ran along a little while, and I checked the second time. I didn't care to be too fast and get up when the Aurora was in the narrow channel. I thought probably his barge would be steering a little bad then, and I wouldn't care to meet him." The Smith's libel says of this second checking: "Thereafter the Masaba crowded over toward the Smith, and the latter was kept off to port and checked a second time to as slow an engine as she could take and maintain steerage way; but the Masaba seemed to draw her along and pass very slowly, and, as the Aurora and Smith were about to meet and pass, the suction of the Masaba caused the Smith to sheer to port and toward the Aurora, and she was rung up full speed under a hard aport wheel to break sheer and avoid a collision." She recovered from this sheer, and the Aurora passed safely. Not warned by the effect of this checking when so close to a larger and faster boat going in the same direction, the libel says, she "was again checked as soon as she was started," when she went off again on another sheer, which was not broken by the tactics before employed, with the result that she was carried across the Aurora's towline and into collision with the Aurania. The faults of the Smith are that she did not seasonably signify her unwillingness that the Masaba should pass her, or that she did not drop behind before entering the canal approach and before meeting the down tow, and in checking unseasonably and irrationally, under conditions. which were likely to subject her more strongly to the influence of suction at the stern of the Masaba. To check again after recovering from the first sheer, a sheer manifestly due to the more effective exertion of suction by reason of having dropped back under a reduced speed, was to invite a repetition of the same consequences before experienced. This checking under the conditions existing, aside from the failure to protest against the persistent effort of the Masaba to pass under the complications due to the passing of the down-bound tow, was a positive fault in navigation, after the force of suction had begun to manifest itself. Her deviation from her course under such circumstances was, therefore, not solely due to the fault of the Masaba. We may repeat and apply here what we said in the case of The Ohio, supra, in reference to the sheer of the Siberia: "But the Siberia does not exonerate herself from liability to the Ohio by simply showing that she thus came within the influence of the suction of a passing steamer. The Ohio has a right to call upon her to show that she was brought within this dangerous influence without fault, and that there was no fault in her management after this force began to exert itself upon her." The Ohio, 91 Fed. 547, 33 C. C. A. 667. The Smith has not met this burden in either particular. A somewhat less stringent rule of responsibility is applicable when we come to determine the liability of the Masaba to the Smith. Thus, if the Masaba by her own wrongful conduct placed the Smith in a position of immediate and extreme danger, she would not be held to blame if she did something wrong in her endeavor to extricate herself, and should not be held to have contributed to her own damage. The Ohio, 91 Fed. 547, 558, 33 C. C. A. 667; The Maggie J. Smith, 123 U. S. 349, 355, 8 Sup. Ct. 159, 31 L. Ed. 175. But that is not the case here. The faults of the Smith for which we have held her liable are not faults in extremis. True, she was wrongly crowded so close by a larger and faster steamer, going through shallow waters, that the influence of suction was to be apprehended. But she suffered herself to be placed. in this position without her consent, but also without protest. When she realized that the Masaba intended to persist in an effort to pass her in the waters of the canal, or to traverse them abreast, both being in violation of the rules regulating the navigation of the canal, she still did not protest. To avoid a continuance of a situation which involved a violation of the canal rules, she checked, not once, but twice-a course which plainly involved increased danger of sheering. But it is said that the burden upon a large steamer overtaking a smaller and slower one, in confined and shallow water, is so great, and the faults of the former so much greater, that the overtaken and smaller steamer should not be held to a division of damages. For this rule counsel cite the cases of The Great Republic, 23 Wall. 20, 35, 23 L. Ed. 55, and The Oregon, 158 U. S. 187, 15 Sup. Ct. 804, 39 L. Ed. 943. It may be conceded that the Masaba was the chief offender, but it cannot be averred that the faults of the Smith were trivial, or that the faults of the Smith did not effectively contribute, or that they have not been plainly established. Under such circumstances there is no other rule than a division of damages, although it would seem more equitable if the greater damages could be charged against the vessel primarily and chiefly responsible. Without an undue extension of this opinion, we cannot in detail consider a number of arguments which have been presented in behalf of the appellees. It is enough to say that the case has been examined in all its phases, and we have deemed it sufficient to present only the leading grounds upon which we rest a judgment of affirmance. LEHMAN v. GRAHAM. (Circuit Court of Appeals, Fifth Circuit. February 15, 1905.) No. 1,356. 1. FEDERAL COURTS JURISDICTION-INJUNCTION TO STAY ENFORCEMENT OF JUDGMENT OF STATE COURT. Rev. St. §720 [U. S. Comp. St. 1901, p. 581], providing that a writ of injunction shall not be granted by a court of the United States to stay proceedings in any state court, except under a bankruptcy law, does not prevent a federal court in a suit within its jurisdiction by reason of diversity of citizenship and the amount involved from granting relief against a judgment of a state court obtained by fraud or on other equitable grounds, where such relief could be granted if the judgment were that of a federal court; and in such case a preliminary injunction may be granted to prevent the collection of the judgment by execution or otherwise. [Ed. Note.-Federal courts enjoining proceedings of state courts, see notes to Gardner v. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.] 2. APPEAL-REVIEW-ORDER GRANTING PRELIMINARY INJUNCTION. The granting of a preliminary injunction rests in the sound judicial discretion of a Circuit Court, and, while its order granting such injunction is reviewable, it will not be disturbed on appeal unless it is violative of the rules of equity that have been established for the guidance of its discretion. 3. SAME. Where a preliminary injunction has been granted on a sworn bill, which presents grave questions of law, to prevent immediate and certain injury to the moving party, and it appears that no injury will result therefrom to the defendant which cannot be provided against by a bond, the appellate court on an appeal from the order will not consider questions going to the merits of the bill, which should be raised by proper pleadings and first presented to the trial court. Appeal from the Circuit Court of the United States for the Southern District of Florida. This is an appeal from an interlocutory decree granting a temporary inJunction. John A. Graham filed the bill against Francis Irsch and D. Lehman. The material averments of the bill are as follows: (1) On May 5, 1891, Graham was indebted to Irsch in the sum of $4,000. To secure this debt, he made his note and mortgage, payable to Irsch on demand. By the mortgage he conveyed to him an undivided interest in lands situated in the Southern District of Florida. (2) On the same day, as collateral and additional security for the payment of the debt, Graham assigned to Irsch his right and interest in a mortgage made by one James W. Lyman to Graham, which mortgage covered real estate therein described. This mortgage was made to secure a note for $5, 230.86, and Graham agreed with Irsch to transfer and deliver the note, also. as collateral security to further secure the $4,000 debt to Irsch. (3) On September 15, 1891, Irsch brought suit in the United States Circuit Court for the Northern District of Florida to foreclose the mortgage executed by Graham to Irsch. On May 18, 1893, a decree of foreclosure was entered. (4) On August 15, 1893, by agreement in open court made between the solicitors of Irsch and Graham, the decree of foreclosure was amended so as to make it embrace as a decree of foreclosure the right, title, and interest of Graham in the note and mortgage of James W. Lyman to Graham, which had been assigned as collateral security for the payment of the $4,000 note made by Graham and payable to Irsch. (5) The purpose of this agreement and amendment to the decree, and the only purpose, was to foreclose and sell the right and interest of Graham in the note and mortgage so pledged by him as collateral. (6) At the time of this agreement Graham still held possession of the note made by James W. Lyman, not having transferred the same to Irsch, but, pursuant to such agreement, he now transferred it, writing thereon: "Pay to Francis Irsch, subject to the terms of assignment heretofore made. John A. Graham." It was fully understood and agreed between the parties at this time that the transfer of Graham's interest in the note was only as collateral security for the payment of the debt of $4,000, which Graham owed to Irsch, and that the transfer was made in accordance with the consent decree entered August 15, 1893. (8) On April 3, 1894, a deficiency decree was entered in said cause in favor of Irsch and against Graham for $4,163.52. (9) By act of Congress the foreclosure suit and proceedings therein were transferred to the Circuit Court of the United States for the Southern District of Florida and became part of the records thereof. On March 5, 1902, Graham fully paid the deficiency decree. (10) That Irsch and Lehman conspired to defraud Graham, and fraudulently to charge him as an indorser and guarantor of the note of James W. Lyman, and to violate the stipulation and agreement of counsel and the decree of the court thereon. (11) That, pursuant to this conspiracy, Lehman took the note of James W. Lyman as security for a previously existing indebtedness of Irsch to him, and did not pay or give any consideration therefor, and that he took the note with actual knowledge that Graham was not liable as an indorser thereon, and with notice of the terms of indorsement thereon, and of the agreement between Graham and Irsch. (12) That Lehman never acquired ownership or title to the note, and that the transaction of Irsch and Lehman was a fraud and device to charge Graham as an indorser, and to violate the terms of the agreement and the decree made pursuant thereto. (13) That, for the purpose of defrauding Graham, D. Lehman, on August 12, 1896, brought suit in the circuit court of Duval county, Fla., against Graham, as an indorser on the note of James W. Lyman, and obtained judgment thereon on May 14, 1897, for the sum of $8,433.65. This judgment was against Graham on the allegation that he was an indorser and guarantor of the Lyman note. (16) That since the entry of the judgment in favor of D. Lehman and against Graham in the Circuit Court of Duval county, Fla., Graham has paid and satisfied in full the deficiency decree taken and entered against him by Irsch, and all costs and charges thereunder, and that thereby he has satisfied and paid in full the original note and mortgage given by him to Irsch, and that the judgment in the circuit court of Duval county, Fla., is a second and double charge, claim, or lien against him. (18) That Graham has requested Lehman to cancel the judgment, and that he refuses to do so, and has sued out writs of garnishment thereon. (19) It is also alleged that D. Lehman has caused a copy of the judgment which he recovered against Graham to be recorded in the public records of Manatee county, Fla., in which county Graham owns real estate, and that such judgment constitutes an apparent lien and cloud upon Graham's title to lands situated in that county, although he avers that the judgment is not valid or effective, and has, in fact, been paid. It is also alleged that the original judgment has been destroyed by fire, and that Lehman is prosecuting a suit to reestablish it. There is a prayer that D. Lehman, his agents and attorneys, be enjoined and restrained from enforcing, or attempting to enforce, or re-establish, the judgment recovered by said D. Lehman against Graham in the circuit court of Duval county, Fla., on May 14, 1897, and that they be enjoined and restrained from suing upon or taking any proceeding under the judgment, or attempting to re-establish the same. The court made the following order: "It is ordered that the said defendant, D. Lehman, his agents and attorneys, be enjoined and restrained from enforcing or attempting to enforce said judgment recovered by the said D. Lehman against complainant in the circuit court of Duval county, Florida, on May 14, 1897, described in the bill, and from suing upon or taking any proceedings under the said judgment, except the re-establishment of the same, until the further order of this court. It is further ordered that so much of the said motion for such restraining order as seeks to prevent the said defendant, D. Lehman, from re-establishing the record of said judgment in said circuit court of Duval county, Florida, be, and the same is hereby, denied." The defendant, Lehman, appealed to this court, and assigns the following errors: "(1) That said order is in violation of section 720 of the Revised Statutes of the United States, in that it enjoins proceedings now pending in the courts of the state of Florida. "(2) Because the allegations of the bill of complaint do not entitle the complainant to any relief whatever against this defendant. "(3) Because the allegations of the bill of complaint show that the complainant has been guilty of such laches as to bar him from the relief prayed for in his bill of complaint against this defendant. "(4) Because the facts set up in the bill of complaint do not constitute any cause of action cognizable in a court of equity and within the jurisdiction of the equity side of the United States Circuit Court, the facts stated in said bill constituting an attempt to review a decision of a common-law court of the state of Florida, contrary to the established practice of courts of equity. "(5) Because the allegations of the bill of complaint show that all the material facts therein alleged can be pleaded in defense to the suit brought by this defendant against the complainant, John A. Graham, in the state court of the state of Florida, upon the judgment sought to be enjoined, which suit the said complainant by his said bill seeks to enjoin." C. D. Rinehart and E. P. Axtell, for appellant. J. C. Cooper (C. M. Cooper and E. J. L'Engle, on the brief), for appellee. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. SHELBY, Circuit Judge, having made the foregoing statement of the case, delivered the opinion of the court. This suit is brought by John A. Graham, a citizen of the state of Florida and a resident of the Southern District of Florida, against Francis Irsch, a citizen and resident of the state of New York, and D. Lehman, an alien, a citizen and resident of the Empire of Germany. One of the purposes of the bill is to remove "an apparent lien and cloud" upon lands owned by the complainant, and situated in the district where the suit is brought. The complainant and one of the defendants being citizens of different states, and the other defendant being an alien, and the amount involved being sufficient, the case was within the jurisdiction of the court. Dick v. Foraker, 155 U. S. 404, 411, 15 Sup. Ct. 124, 39 L. Ed. 201, and statutes there cited. Section 720 of the Revised Statutes of the United States [U. S. |