text:
The Grapeshot (76 U.S. 129)/Opinion of the Court

The first question to be examined in this case is one of jurisdiction.

The suit, shown by the record, was originally instituted in the District Court of the United States for the District of Louisiana, where a decree was rendered for the libellant. From this decree an appeal was taken to the Circuit Court, where the case was pending, when, in 1861, the proceedings of the court were interrupted by the civil war. Louisiana had become involved in the rebellion, and the courts and officers of the United States were excluded from its limits. In 1862, however, the National authority had been partially re-established in the State, though still liable to be overthrown by the vicissitudes of war. The troops of the Union occupied New Orleans, and held military possession of the city and such other portions of the State as had submitted to the General government. The nature of this occupation and possession was fully explained in the case of The Venice.

Whilst it continued, on the 20th of October, 1862, President Lincoln, by proclamation, instituted a Provisional Court for the State of Louisiana, with authority, among other powers, to hear, try, and determine all causes in admiralty. Subsequently, by consent of parties, this cause was transferred into the Provisional Court thus constituted, and was heard, and a decree was again rendered in favor of the libellants. Upon the restoration of civil authority in the State, the Provisional Court, limited in duration, according to the terms of the proclamation, by that event, ceased to exist.

On the 28th of July, 1866, Congress enacted that all suits, causes, and proceedings in the Provisional Court, proper for the jurisdiction of the Circuit Court of the United States for the Eastern District of Louisiana, should be transferred to that court, and heard and determined therein; and that all judgments, orders, and decrees of the Provisional Court in causes transferred to the Circuit Court should at once become the orders, judgments, and decrees of that court, and might be enforced, pleaded, and proved accordingly.

It is questioned upon these facts whether the establishment by the President of a Provisional Court was warranted by the Constitution.

That the late rebellion, when it assumed the character of civil war, was attended by the general incidents of a regular war, has been so frequently declared here that nothing further need be said on that point.

The object of the National government, indeed, was neither conquest nor subjugation, but the overthrow of the insurgent organization, the suppression of insurrection, and the re-establishment of legitimate authority. But in the attainment of these ends, through military force, it became the duty of the National government, wherever the insurgent power was overthrown, and the territory which had been dominated by it was occupied by the National forces, to provide as far as possible, so long as the war continued, for the security of persons and property, and for the administration of justice.

The duty of the National government, in this respect, was no other than that which devolves upon the government of a regular belligerent occupying, during war, the territory of another belligerent. It was a military duty, to be performed by the President as commander-in-chief, and intrusted as such with the direction of the military force by which the occupation was held.

What that duty is, when the territory occupied by the National forces is foreign territory, has been declared by this court in several cases arising from such occupation during the late war with Mexico. In the case of Leitensdorfer v. Webb, the authority of the officer holding possession for the United States to establish a provisional government was sustained; and the reasons by which that judgment was supported, apply directly to the establishment of the Provisional Court in Louisiana. The cases of Jecker v. Montgomery, and Cross v. Harrison, may also be cited in illustration of the principles applicable to military occupation.

We have no doubt that the Provisional Court of Louisiana was properly established by the President in the exercise of his constitutional authority during war; or that Congress had power, upon the close of the war, and the dissolution of the Provisional Court, to provide for the transfer of cases pending in that court, and of its judgments and decrees, to the proper courts of the United States.

The case then being regularly here, we will proceed to dispose of it.

The object of the original suit was the enforcement of a lien upon the bark Grapeshot, created by a bottomry bond, executed by her master, one Joseph S.C.lark, in favor of Wallerstein, Massett & Co., at Rio Janeiro, upon the 15th of April, 1858.

The libel, filed by Wallerstein, Massett & Co., on the 3d of July, 1858, alleged that the bark Grapeshot, lying in the port of Rio, during the month of April, 1858, was in great need of reparation, provisions, and other necessaries to render her fit and capable of proceeding thence on her intended voyage to the port of New Orleans; and Joseph S.C.lark, the master of the bark, not having any funds or credit there, and the owner of the said bark not residing in Rio, and having no funds or credit there, that the libellants, at the request of Clark, advanced and lent to him $9767.40, on the bottomry and hypothecation of the bark, at the rate of 19 1/2 per cent. maritime interest; that Clark, as master, did really expend the sum borrowed for the repairing, victualling, and manning of the bark in order to enable her to proceed to New Orleans; that the bark could not possibly have proceeded with safety upon her voyage without such repairs, and other necessary expenses attending the refitting of her; that she sailed and arrived safe at New Orleans on or about the 7th of June, 1858; and, that the bond was, at the proper time, presented for payment to Clark, who refused to discharge it.

Upon this libel, process was issued, and the vessel and her freight were seized. Subsequently the vessel was sold under an order of the court, and the proceeds, together with the freight-money, amounting, in the whole, to $13,805.85, were deposited in the registry on the 2d of September, 1858.

On the 1st of November, 1858, George Law, the claimant of the vessel and freight, filed his answer, denying the necessity of the repairs and supplies, alleged to have been paid for by the money raised upon the bottomry bond, and alleging fraudulent collusion between the master and the lenders, to the prejudice of the claimant. The answer set out at large the history of the Grapeshot, from the time she left New York, on or about the 9th of February, 1857, to the date of her arrival in New Orleans, on or about the 7th of June, 1858. It represented that the bark, when she left New York, was stout and staunch, well fitted, and supplied for her then intended voyage to Constantinople, and for the return voyage to New York; that, instead of returning from Constantinople to New York, the master, Clark, embezzled the freight earned in the voyage out, and engaged the vessel in voyages for his own benefit, until he caused her to be stripped at Rio of her copper, which was replaced by secondhand and indifferent metal, owned by Clark, and put on her in fraud of the claimant; that the dishonest practices of Clark were well known at Rio, and that the libellants were fully cognizant of them. The answer further denied the charge of the libel that the claimant had no funds or credit at Rio, and averred that he had credit to procure and obtain the necessary funds, and that the master was under no necessity to resort to the bottomry upon the vessel. The answer further alleged that there was no inspection or survey of the vessel with reference to the necessity for repairs; and that the alleged expenses for repairs and provisions far exceeded the sums actually expended, of all which the libellants had notice.

Before proceeding to examine the evidence, taken under these pleadings, it will be proper to consider the principles of maritime law applicable to the case.

A bottomry bond is an obligation, executed, generally, in a foreign port, by the master of a vessel for repayment of advances to supply the necessities of the ship, together with such interest as may be agreed on; which bond creates a lien on the ship, which may be enforced in admiralty in case of her safe arrival at the port of destination; but becomes absolutely void and of no effect in case of her loss before arrival.

Such a bond carries usually a very high rate of interest, to cover the risk of loss of the ship as well as a liberal indemnity for other risks and for the use of the money, and will bind the ship only where the necessity for supplies and repairs, in order to the performance of a contemplated voyage, is a real necessity, and neither the master nor owners have funds or credit available to meet the wants of the vessel.

Sometimes bonds, bearing only the ordinary rate of interest, or executed under circumstances more or less different from those just stated, are called bottomry bonds, and are enforced as such; but the general description just given embraces most instruments known under that name, and is sufficiently accurate for the case presented by the record.

There is no question in this case as to the character of the bond; nor as to the safe arrival of the ship; nor as to the validity of the bond if the lien can be held valid. The controversy turns on the question of necessity for repairs and supplies, and for credit.

We are to consider, therefore, what degree of necessity for supplies or repairs, and what degree of necessity for credit in that form, will warrant a master in borrowing upon bottomry.

Where the claim of the material-man is against the owner only, and no privilege is given upon the vessel, no necessity need be shown affirmatively. The master, in the absence of known fraud, is fully authorized to represent the owners in all matters relating to the ship; and it will always be presumed that supplies and repairs, ordered by the master, were reasonably fit and proper, unless there is clear proof to the contrary, and also proof of collusion by the material-man.

But something more is required when the claim is against the ship itself. Such a claim can be asserted only as a lien or privilege upon the vessel. And the rule is that such a lien for supplies and materials, or for money advanced for the ship, since it is created and exists without record, or other public notice, can only be established upon circumstances of actual necessity.

Proof of absolute and indispensable necessity, however, is not required in order to the establishment of such a lien, where supplies and materials are furnished on the credit of the ship, or of the ship and owners, in a foreign port. In such cases, courts of admiralty do not scrutinize narrowly the account against the ship. They will reject, undoubtedly, all unwarranted charges; but upon proof that the furnishing was in good faith, on the order of the master, and really necessary, or honestly and reasonably believed by the furnisher to be necessary for the ship while lying in port, or to fit her for an intended voyage, the lien will be supported; unless it is made to appear affirmative that the credit to the ship was unnecessary, either by reason of the master having funds in his possession applicable to the expenses incurred, or credit of his own or of his owners, upon which funds could be raised by the use of reasonable diligence; and that the material-man knew, or could, by proper inquiry, have readily informed himself of the facts.

It has been supposed that a more stringent rule than that just stated was sanctioned by this court, at the December Term, 1856, in the case of The Sultana, reported under the title of Pratt v. Reed.

In that case, coal for generating steam was supplied to the Sultana, of Buffalo, in New York, at Erie, in Pennsylvania. The master was sole owner, and known as such by the furnisher of the coal. The supplies were furnished from time to time during a period of nearly two years, and formed the subject of a running account of debit and credit extending through that time. The evidence warranted the impression, confirmed by the fact of sole ownership in the master, that the credit was given to the master and not to the ship. It was held that no lien attached to the steamer for the supplies thus furnished.

We have no doubt that the case was rightly decided. There are, however, expressions in the opinion which, separated from the case, appear to sanction the doctrine that, in order to the creation of a lien on the vessel, express proof is necessary of an unforeseen emergency creating a necessity for supplies, and also of the existence of a necessity for credit on the ship.

But that it was not intended by the court to establish any other rule than that previously recognized, sufficiently appears from an opinion pronounced in the case of The Neversink, by the learned judge who delivered its judgment in the case of The Sultana. What was said in the former case sufficiently shows that the latter judgment was intended only to affirm that there must be an apparent necessity for the credit as well as an actual necessity for the supplies, and that in the case before the court there was, in fact, no such necessity as was essential to the creation of a lien upon the steamer. It was not intended to deny that this apparent necessity might be presumed from the necessity for supplies, from the general authority of the master, and from general good faith in the particular transaction.

It has been supposed also that the judgment of this court in the case of The Bark Laura, reported as Thomas v. Osborn, required affirmative proof of the necessity of credit to the ship, in order to the creation of a lien on the vessel. The court said, that 'the limitation of the authority of the master to cases of necessity, not only of repairs and supplies, but of credit to obtain them, and the requirement that the lender or furnisher should see to it that apparently such a case of necessity exists, are as ancient and well established as the authority itself.' There is nothing in the language which necessarily denies that proved necessity for repairs may be received as presumptive evidence, sufficient, in the absence of other information, to establish a case of apparent necessity upon which the lender or furnisher may safely act. And the citations from the Digest and the Consolato del Mare, made to show the antiquity of the doctrine, seem to have reference only to the condition of the ship, and not to the condition of the credit of the owners or master.

We are satisfied that neither of the two cases just referred to, when properly considered in connection with the proofs before the court, can be regarded as in conflict with the rule we have stated, which, prior to these decisions, had been undoubtedly received upon the general consent of authorities as the true rule on the subject of implied hypothecation for repairs and supplies, or for advances having the same relation to the ship.

We have been induced to state this doctrine of implied hypothecation somewhat fully, not only because it seemed desirable to correct a common misunderstanding of these cases; but because of the close analogy in origin, effect, and incidents between implied hypothecation and express hypothecation by bottomry.

It is, indeed, difficult to trace, either in reason or in the authorities, any marked line of discrimination between them. In the case of The Aurora, decided in 1816, this court said: 'To make a bottomry bond, executed by the master, a valid hypothecation, it must be shown by the creditor that the master acted within the scope of his authority, or, in other words, that the advances were made for repairs or supplies necessary for effecting the objects of the voyage, or the safety and security of the ship. And no presumption should arise in the case that such repairs or supplies could be procured on reasonable terms with the credit of the owner, independent of such hypothecation.'

And it was further said, in the same case, that 'it is incumbent on the creditor who claims an hypothecation to prove the actual existence of those things which gave rise to his demand; and if it appear on his own showing, or otherwise, that he has funds of the owners in his possession which might have been applied to the demand, and he has neglected or refused to do so, he must fail in his claim.'

And this, undoubtedly, is the general rule also in respect to implied hypothecation. The principles on which it rests were fully explained and illustrated by Mr. Justice Story, in 1838, in the case of The Fortitude.

It has been thought that a distinction between the lien for repairs and supplies, or ordinary advances to pay for them, and the lien of bottomry, may be found in that 'superadded necessity' of which the learned judge speaks, in the case last cited, as distinguishing the former from the latter. There must, he said in substance, not only be a necessity for the repairs, but a necessity for resorting to a bottomry loan. But this ruling must be taken with the qualification previously established by this court in the case of The Virgin, where it was held that 'the necessity of the supplies and repairs being once made out, it is incumbent on the owners, who assert that they could have been obtained upon their personal credit without bottomry, to establish that fact by competent proofs, unless it is apparent from the circumstances of the case.' It is only when such competent proofs have been adduced, or the practicability of raising funds on credit has been made to appear from circumstances, that the lender is held responsible for failing to make due inquiry.

In the absence of such proofs or circumstances, an apparent necessity for credit by bottomry must be regarded as established when the necessity for repairs is proved.

A more substantial distinction between the implied and the express hypothecation may, perhaps, be found in the greater diligence required of the lender on bottomry than of the material-man in inquiry concerning the necessity for repairs. The authorities on this subject are not easily reconciled; but they may be best harmonized, perhaps, in the proposition that if no necessity for repairs is established a bottomry bond will not be supported in the absence of proof that the lender, after using reasonable diligence to ascertain the facts, had good reason to believe, and did believe, that the necessity really existed. And this is warranted by good reason. The maritime law seeks equally the general promotion of commercial intercourse and the most complete security in private transactions; and neither can well be reconciled with the support of hypothecations which partake largely of the nature of hazard, made where the owner cannot be consulted, at extraordinary rates of interest, agreed upon by the master and the lender, and under circumstances favorable to collusion and fraud, unless the lender be held to reasonable diligence in inquiring as to the existence of the facts of distress and necessity for repairs, which alone warrant such transactions.

The doctrine on the subject of maritime hypothecation, so far as it seems useful to consider it in this case, may be summed up, we think, in these propositions: 1. Liens for repairs and supplies, whether implied or express, can be enforced in admiralty only upon proof made by the creditor that the repairs or supplies were necessary, or believed, upon due inquiry and credible representation, to be necessary.

2. Where proof is made of necessity for the repairs or supplies, or for funds raised to pay for them by the master, and of credit given to the ship, a presumption will arise, conclusive, in the absence of evidence to the contrary, of necessity for credit.

3. Necessity for repairs and supplies is proved where such circumstances of exigency are shown as would induce a prudent owner, if present, to order them, or to provide funds for the cost of them on the security of the ship.

4. The ordering, by the master, of supplies or repairs upon the credit of the ship, is sufficient proof of such necessity to support an implied hypothecation in favor of the materialman, or of the ordinary lender of money, to meet the wants of the ship, who acts in good faith.

5. To support hypothecation by bottomry, evidence of actual necessity for repairs and supplies is required, and, if the fact of necessity be left unproved, evidence is also required of due inquiry and of reasonable grounds of belief that the necessity was real and exigent.

These principles are now to be applied to the case before us. The pleadings make distinct issues upon the necessity for repairs, the necessity for credit, and exercise of due diligence in inquiry by the lender.

On examining the proofs we find great contrariety in evidence, but we think it sufficiently established that Clark, the master of the Grapeshot, if not guilty of actual fraud, was very negligent of his duties as master.

It is alleged in the answer, and the allegation is supported by credible testimony, that the voyage for which she was originally destined was from New York to Constantinople, and back. The bark sailed from New York in February, 1857, and the voyage to Constantinople was accomplished in due time; but, instead of obtaining a return freight for New York, the master engaged the bark in a new voyage. He purchased a cargo of salt, partly at Ivica and partly at the Isle de Sal, one of the Cape de Verde Islands, and carried it to Rio, where he lay for some time, then returned to the islands for another cargo of salt, with which he arrived at Rio early in January, 1858, and remained there until April, when he finally took a cargo for the United States; not then, however, for New York, but for New Orleans.

There is some evidence that the new voyages were for purposes of private speculation by the master, and this theory receives partial confirmation from a letter written by him to the owner from Constantinople, in which he admits that he could obtain a paying freight for New York, but states that he had determined to seek more profitable employment for the vessel, in a voyage to Rio with salt. On the other hand, it appears that nothing was kept secret from the owner, unless it be the fact of private speculation, for the letters of the master show that he was advised from time to time of all the movements of the vessel.

These transactions are adverted to only because, though having no direct bearing upon the case, they cast some light upon the subsequent conduct of the master.

The liabilities, except those charged under date of October 31st, 1857, which form the basis of the bottomry bond, were incurred, if incurred at all, while the ship remained at Rio, from January 2d to April 19th, 1858. They consist of charges for supplies and repairs.

As to the necessity for repairs, the libellants have put in the depositions of Clark, the master, and of the furnishers at Rio. The respondent, on his side, has put in the depositions of several seamen who made part of the crew of the Grapeshot.

The evidence of these witnesses cannot be reconciled. The witnesses for the libellants are positively contradicted by the witnesses for the respondent. Clark, for example, says that on the last voyage to the Cape de Verde Islands and back to Rio, the Grapeshot leaked badly, and that she lost nine hundred bushels of salt by the water from the leaking. And, as to the leaking, his testimony is, to some extent, corroborated by that of the repairer. But three of the crew, examined on this point, testify positively that there was no damage from leaking. As to injuries to the bottom of the vessel, and the necessity for recoppering, Clark says nothing in his deposition; he merely states that the accounts of the material-men are just and correct, and they testify that the repairs and supplies were necessary. On the other hand, some of the crew testify that the repairs were quite unnecessary, that the copper put upon her was inferior to the copper taken off, and that the vessel when nominally repaired was less staunch than before. There is more to the same effect.

It is said that the evidence of the seamen is unworthy of credit. It was certainly taken in a very loose and unsatisfactory way. But this was the fault of the commissioner, and not of the witnesses. On the main points at issue their testimony is clear and distinct enough, and we perceive no reason for discrediting it.

We have examined it with care, and, taken in connection with the whole evidence on both sides, it has satisfied us that we cannot hold the necessity for repairs as established.

And this view is confirmed by the absence of any survey or examination by public authority, or by competent and disinterested persons for the purpose of ascertaining the necessity for repairs. In the case of The Cognac the bottomry bond was authorized by the French Tribunal of Commerce at the port of repair, and also by the British vice-consul there, and yet the British Court of Admiralty disallowed some of the items covered by the bond. And in the case of The Fortitude the bottomry bond was supported by evidence of a survey, called by the master and conducted by persons skilled in nautical affairs. This was, as the learned judge observed, 'what every prudent master ought to do under the like circumstances.' We do not say that such a survey is indispensable. No doubt proof of the necessity and of the extent of the necessity may be otherwise made. But where the repairs alleged to be made are extensive, and the necessity otherwise left in doubt, the absence of such an examination will go far to warrant the conclusion that no real necessity existed.

The evidence in respect to the bills for supplies covered by the bottomry bond is not so strong as to the absence of necessity for them. But there are some items included in these bills, and particularly a very considerable item stated as a general balance found due on a former account of the consignee of the ship, which can hardly be regarded as subjects of bottomry.

Under these circumstances, if there were any proof affecting the lenders with actual knowledge of the facts, it would be our duty to pronounce the bottomry wholly invalid. For there is no evidence that they made any inquiry whatever, and the maritime law holds them to reasonable diligence in this respect.

But mere omission to make inquiry will not invalidate the bond altogether. It may be good in part and void in part. And where, as in this case, part of the repairs and supplies have been shown to be necessary, and there is no reason to impute fraud or collusion to the lenders, the bond, though void as to the items of which the necessity is disproved or not shown, may properly be held valid as to those items the necessity of which is shown.

Under the view which we have taken of this case it is not necessary to consider the evidence as to the necessity for credit. It may be of use, however, to observe that while there is evidence to show that the respondent, Law, was a man of large means, and known as such by some persons in Rio, the proof does not satisfy us that the sum named in the bond could have been raised on his credit at rates more advantageous than were actually obtained, much less that the lenders in this case could by any diligence of inquiry have learned that this might be done. It is matter of history, of which the court will take notice, that the year 1857 was a year of financial revulsion and distress throughout the greater part, if not the whole, of the commercial world, the effects of which were still felt in the spring of 1858. In such a time proof of the practicability of obtaining funds, in a port so remote, upon the credit of the owner, should be clear indeed in order to affect a lender upon bottomry with the duty of inquiry.

On the whole the decree of the Circuit Court must be REVERSED, and the cause must be remanded to that court with directions to refer the accounts for repairs and supplies to one or more commissioners experienced in commerce and of known intelligence and probity, to ascertain, under the instructions of the court, what portion of the repairs and supplies, actually furnished to the ship, were really necessary, and for the amount thus ascertained and approved by the court to enter.

DECREE FOR THE LIBELLANTS.


text: Talk:The Grapeshot (76 U.S. 129)/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Latham's and Deming's Appeals

THESE were two appeals from the Court of Claims, in suits against the United States. They had been passed at former terms, and early at this one. It being alleged by Mr. Hoar, Attorney-General, that they involved a question of public interest to wit, the legal tender question-which he desired, for some reasons which he stated, to have passed on anew, he asked the court to fix a day at this term for argument upon them, it being stated by him that it was, in his opinion, most desirable that the matter should not be postponed to the next term. After opposition and some delays by Messrs. Carlisle and Merryman, for the appellants respectively, who denied that any question of legal tender was presented in the records, and asserted that the cases, whenever called, had been passed, on an understanding by themselves, the counsel of the government, and the court, that if any such question were properly in them it should abide the decision to be made in Hepburn v. Griswold, then under consideration by the court-a day was fixed for the hearing of the cases. When the day arrived the cases were postponed, owing to another case being before the court. Being finally called, Mr. L. S.C.hatfield, with whom was Mr. Merryman, for the appellants respectively, offered a stipulation signed by them in behalf of their clients, and moved to dismiss the appeals. The Attorney-General opposed the motion; stating that it was a surprise to him; that he was now prepared to argue the cases, and desired to do so.

After some conference on the bench, where the judges did not seem to be entirely unanimous, the court withdrew for consultation. On their return, the CHIEF JUSTICE announced it as the unanimous judgment of the court that the appellants had a right to have their appeals dismissed, and they were both DISMISSED ACCORDINGLY.

title: Latham's and Deming's Appeals


text: Talk:Latham's and Deming's Appeals

title: Talk:Latham's and Deming's Appeals


text: Latham's and Deming's Appeals/Opinion of the Court


text: Talk:Latham's and Deming's Appeals/Opinion of the Court


text:
The Johnson

APPEAL from the Circuit Court for the Southern District of New York, in a case of collision, the case being this:

All steamers navigating the crowded waters of the New York harbor, were bound in 1863 to obey the following RULES OF NAVIGATION, prescribed originally for the conduct of passenger steamers, but adopted by other vessels.

'RULE 1. When steamers meet 'head and head,' it shall be the duty of each to pass to the right, or on the larboard side of the other, and either pilot, upon determining to pursue this course, shall give as a signal of his intention one short and distinct blast of his steam-whistle, which the other shall answer promptly by a similar blast of the whistle. But if the course of each steamer is so far on the starboard of the other as not to be considered by the rules as meeting 'head and head,' or if the vessels are approaching in such a manner, that passing to the right (as above directed), is unsafe, or contrary to rule, by the pilot of either vessel, the pilot so deciding shall immediately give two short and distinct blasts of his steam-whistel, which the other pilot shall answer by two similar blasts of his whistle, and they shall pass to the left, or on the starboard side of each other.

'RULE 2. When steamers are approaching each other in an oblique direction, they will pass to the right, as if meeting 'head and head,' and the signal by whistle shall be given and answered promptly, as in that case specified.

'RULE 3. If, when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of the other, whether from the signals being given or answered erroneously, or from other cause, the pilot so in doubt shall immediately signify the same by giving several short and rapid blasts of the steam-whistle, and if the vessels shall have approached within half a mile of each other, both shall be immediately slowed to a speed barely sufficient for steerage-way, until the proper signals are given, answered, and understood, or until the vessels shall have passed each other.

'RULE 4. The signals, by blowing of the steam-whistle, shall be given and answered by pilots, in compliance with these rules, not only when meeting 'head and head,' or nearly so, but at all times when passing or meeting, at a distance within half a mile of each other, and whether passing to the starboard or larboard.

'N. B. The foregoing rules are to be complied with in all cases, except when steamers are navigating in a crowded channel or in the vicinity of wharves; under these circumstances steamers must be run and managed with great caution, sounding the whistle as may be necessary, to guard against collisions or other accidents.'

With these rules in force, the Burden, a small propeller tug, was towing up the East River from Atlantic Dock, Brooklyn, the canal boat Kate McCord, heavily loaded with wheat, she being fastened to the larboard side of the propeller. The propeller with her tow was on her way from the Atlantic Dock, on the Brooklyn side of the East River, to Piet 44, on the New York side of it, and in a direct line from the dock to the pier. The tide was the middle of the ebb, running strongly down. In consequence of the shape of the land from Catharine Ferry to Atlantic Dock, there is a strong eddy tide which runs up along the Brooklyn shore to the upper side of the Fulton Ferry slip, when the tide is running ebb, and tugs bound up seek that eddy tide for the double reason that they get the aid of the eddy tide instead of the opposition of the ebb tide, and they avoid vessels bound down, leaving to them the advantage of the ebb tide and the breadth of the river. The propeller was, accordingly, going slowly up in that eddy tide 100 to 150 feet from the Brooklyn piers, and when she had nearly reached the ferry slip she saw the Scranton, a large side-wheel steamer, with an empty barge on each side, coming rapidly down the river, out towards the middle of the river just above the Fulton Ferry.

The Scranton, when about opposite the upper part of the Fulton Ferry slip, starboarded her helm, and at a rapid rate swept in, in a curve toward the Brooklyn shore, with the purpose of running in under the bow of the propeller, and picking up a boat lying on the lower side of the lower pier of the Fulton Ferry slip.

The propeller, seeing the steamer thus coming dangerously towards her, blew one whistle, which is the regulation signal to indicate that she intended to keep to the right, and those on the steamer testified that she blew two whistles, which is the regulation signal that would have indicated that she was going to the left; but the men on the propeller did not hear the two whistles, and of course gave no answering signal. Indeed, had they heard them, the men on the propeller, as it rather seemed, could not at that time have done anything to prevent the collision, situated as the propeller Diagram of the East River.

was. The result was that the steamer ran directly into the canal boat, which was lashed to the propeller, and did her and her cargo serious injury; also injuring herself.

The owners of the canal boat libelled both the steamer and the propeller to recover her damage by the collision, alleging a joint or several negligence; and the owners of the steamer libelled the propeller to recover her damage by the collision, alleging negligence of the propeller alone.

The District Court held that both steamers were in fault, and decreed against them jointly for the whole loss. The claimants of both vessels appealed to the Circuit Court. That court reversed the decree of the District Court so far as it affected the propeller, and charged the whole loss upon the steamer, on the ground she was wholly in fault.

From this decree the claimant of the steamer appealed to this court, and the libellants did likewise. The evidence was somewhat voluminous, but not very conflicting on the material points.

Mr. Fithian, for the steamer; Mr. Benedict, for the propeller; Mr. Van Santvoord, for the canal boat.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: The Johnson


text: Talk:The Johnson

title: Talk:The Johnson


text:
The Johnson/Opinion of the Court

Damages were claimed in this case on account of a collision which occurred in East River, on the ninth of December, 1863, between the canal boat Kate McCord, and the steamboat Joseph Johnson, whereby the canal boat and her cargo, consisting of seven thousand bushels of wheat, were greatly injured.

Prior to the commencement of her trip, the canal boat was lying in the Atlantic basin at Brooklyn, and the proofs show that she was heavily laden, and that she was taken in tow there by the steam propeller William F. Burden, to be towed up the river to pier forty-four, on the New York side of the river, for the purpose of discharging her cargo and delivering the same on board of the ship Whampoa, then lying at that pier. She was lashed to the port side of the propeller, and when the collision occurred, the propeller with the canal boat in tow was proceeding up the river to the place where her cargo was to be transshipped.

Loss was sustained by the owner of the canal boat and by the owners of her cargo, and they joined in the same libel, claiming damages, as well of the propeller to which the canal boat was lashed as of the steamboat Joseph Johnson, which collided with the canal boat, and which was the immediate cause of the injury both to the canal boat and her cargo.

Lashed to the propeller as the canal boat was, she was as entirely under the control of the propeller as if she had been a part of that vessel. When they were proceeding on their course up the river, the Johnson, with two unladen canal barges in tow, one on each side, started from Corlear's Hook, on the New York side, on a trip down the river, inclining, however, towards the Fulton Ferry dock, on the Brooklyn side, to a point just below the lower slip of that dock, where she intended to take another boat in tow. When the boats started on their respective trips it was about eleven o'clock in the forenoon, and the tide at that time was half ebb, with a strong current in the channel of three miles an hour.

Vessels of that description proceeding up the river on that side, in that state of the tide, usually keep close to the shore, as they by that means avoid the downward current in the stream, and get the aid of the eddy or reflex tide near the shore, which facilitates their progress, and the evidence shows that the propeller, with the canal boat in tow, was proceeding up the river along that shore in the track usually pursued by steamtugs in performing towage service under those circumstances.

Boats descending the river at ebb tide usually select the middle of the channel, as their speed is much aided by the current, and the witnesses generally concur that the Johnson, until just prior to the collision, was proceeding down the river in a course much nearer the centre of the stream than the ascending boat with her tow lashed to her port side.

Aided by the current the speed of the descending boat was seven miles an hour; but the propeller with the canal boat in tow was not able, in ascending the river, to make more than three or four miles an hour.

Whatever may have been the cause, it is admitted by the master of the Johnson that he did not see the propeller until she was opposite the slip next above the ferry slip, and he also states that the propeller, at that time, was about the same distance below the ferry that the Johnson was above that point, and of course they were not far distant from each other.

They were approaching at a combined speed of ten or eleven miles an hour, but not exactly from opposite directions nor on lines precisely parallel, as the Johnson was nearer to the centre of the stream than the propeller, and her course was inclining towards the Brooklyn shore. Strong doubts, however, are entertained whether the vessels would have collided if both had kept their course, but it is not necessary to decide that point, as it is conceded that the helms of both were changed before the collision occurred.

Appearance was regularly entered by the owners of the steamers, and the claimants of each steamer filed separate answers, denying that their vessel was liable for the injury, but the District Court held that both vessels were in fault, and entered a joint decree for the libellants in conformity with the allegations of the libel. Dissatisfied with the decree the claimants of the respective steamers appealed to the Circuit Court, where all the parties were again heard, and the Circuit Court affirmed the decree of the District Court as against the Johnson, but reversed it as against the propeller, holding that the Johnson was wholly in fault for the collision. Whereupon the claimants of the Johnson appealed to this court, and the libellants also appealed from so much of the decree as held that the propeller was not in fault.

All persons engaged in navigating vessels upon navigable waters, whether upon the seas or in rivers or harbors, are bound to observe the rules of navigation recognized and approved by the courts in the management of their vessels on approaching a point where there is danger of collision. Such rules are ordained and administered to prevent collision and to afford security to life and property exposed to such dangers, and experience shows that if they are seasonably observed and strictly followed such disasters would seldom occur.

Rules of navigation are obligatory upon vessels approaching each other from the time the necessity for precaution begins, and they continue to be obligatory as the vessels advance, so long as the means and opportunity to avoid the danger remain. They are not strictly applied to a vessel which is otherwise without fault in cases where the proximity of the vessels is so close that the collision is inevitable, and they are wholly inapplicable when the vessels are so distant from each other that measures of precaution have not become necessary to prevent a collision. But precautions, in order to be effectual, must be seasonable; and if they are not so, and a collision ensues because they were not adopted earlier, it is no defence to show that they were adopted as soon as the necessity for the precaution was perceived, nor to prove that at the monent of the collision it was too late to render such a precaution of any service. Unless precautions are seasonable they are of little or no use, as it will seldom or never happen that a collision could be avoided at the time when it occurred.

Steam vessels, independently of the sailing rules enacted by Congress, are regarded in the light of vessels navigating with a fair wind, and are always under obligations to do whatever a sailing vessel going free or with a fair wind would be required to do under similar circumstances.

Prior to the passage of the act of Congress prescribing sailing rules, as well as since that time, steam vessels approaching each other from opposite directions, so as to involve risk of collision, were required to put their helms to port so that each may pass on the port side of the other, and the court is of the opinion that that rule is applicable in this case, although the collision occurred before that act of Congress went into operation.

Suppose it to be true that these vessels were approaching each other on intersecting lines, so that they would have collided if they had not changed their course, then it is clear in view of the circumstances that each was bound to port their helm and pass to the right, as there was nothing to prevent them from complying with that well-known rule of navigation. They were navigating in the daytime and in good weather, and they had an unobstructed view of what was before them; but the Johnson, instead of complying with that rule of navigation, put her helm to starboard for the purpose of crossing to the Brooklyn side and taking another boat in tow, which was lying in the dock, just below the lower slip of the Fulton Ferry. Descending the river, as the Johnson was, at the rate of seven miles an hour, she obeyed her helm readily, and aided by the reflex tide as she left the stream she came round quickly so as to head towards the shore, and as she advanced on her new course she struck the canal boat on her port side and caused the injury described in the libel.

Complaint is made by the appellant that the propeller was in fault, but the court is of the opinion that what the propeller did was correct, and that she left nothing undone which, under the circumstances, was required of her by the rules of navigation. When the master of the propeller saw that the Johnson was heading directly towards the canal boat, he ported her helm, which was all he could do at that time, as the collision was inevitable. Some benefit, no doubt, resulted from the movement, as it doubtless diminished the force of the blow and lessened somewhat the injury to the canal boat and her cargo.

Unexplained, the appellant concedes that the attempt of the steamboat to cross the track of the propeller before she passed up, would not be warranted by the rules of navigation, but he alleges in argument that the Johnson, before she starboarded her helm, gave notice to the propeller, by blowing her steam-whistle twice, that she intended to make that change in her course and go to the left, but the weight of the evidence is the other way, and the theory of the defence is expressly contradicted by the answer, which must be regarded as alleging the true state of the case.

Whether tested by the pleadings or the evidence, the case shows that the helm of the steamboat was put to starboard when, if changed at all, it should have been put to port, and that the steamboat was put upon a course heading towards the Brooklyn shore, across the track of the propeller, before the steamboat blew her whistle, as alleged by the appellant.

Even supposing it were otherwise, and that the theory of fact assumed by the appellant could be sustained, still the court is of the opinion that it would constitute no valid defence in this case, for several reasons, which will be briefly explained: (1.) Because the respective vessels, as they approached each other, were in such close proximity that the steamboat had no right to insist upon any departure from the ordinary rules of navigation. (2.) Because any such departure from the rules of navigation as that contemplated by the steamboat, necessarily involved danger of collision, as the propeller was nearer to the shore than the steamboat. (3.) Because the steamboat, even if she did blow her whistle before she starboarded her helm, still she had no right to change her course until it was certain that the signal was heard and understood by the approaching vessel. (4.) Because the signal, even if given before the order to starboard, was nevertheless too late to justify the steamboat in attempting to cross the bows of the propeller; but the court is satisfied that the signal, if given as alleged by the appellant, was not understood by those in charge of the propeller, and that it was culpable rashness, in view of the circumstances, for the steamboat to attempt to cross the bows of the propeller before receiving any signal that the propeller was willing to co-operate in the proposed change of course.

Those on board the steamboat received no answer to their signal, and it is reasonable to suppose that if they were attentive to their duties they must have known that those in charge of the propeller did not understand their signal, and consequently if they made the proposed change in the course of their steamer, a collision would follow, and if they did not so understand the matter, it was their own fault.

Viewed in any light, the propeller was not at fault, and the responsibility must rest on the steamboat. Our conclusion is, that the Johnson is liable for the whole damage, and that the decree of the Circuit Court should be in all things affirmed.

Appeal was taken by the libellants from so much of the decree as exonerated the propeller, but their claim, in the view of this court, is against the colliding steamboat, and not against the propeller.

DECREE IN EACH CASE AFFIRMED.

title: The Johnson/Opinion of the Court


text: Talk:The Johnson/Opinion of the Court

title: Talk:The Johnson/Opinion of the Court


text:
Bonner v. United States

The State of Virginia, during the Revolutionary war, promised bounty lands to her troops, on Continental establishment, and at an early day set apart for their benefit a tract of country within the limits of the present State of Kentucky, which it was supposed at the time would be sufficient for the purpose. Recognizing, however, that this reservation might prove insufficient to satisfy the claims of these troops, Virginia, in ceding, March 1st, 1784, to the United States the territory beyond the Ohio River, reserved all the lands lying between the Scioto and Little Miami Rivers, to supply any deficiency of lands in the Kentucky district. It was very soon manifest that the apprehended deficiency existed, and the second reservation, therefore, became operative. In order to ascertain the limits of this reservation, it was necessary to find the sources of these two rivers and to run the line between them. The execution of this object was the occasion of much difficulty and the cause of frequent legislation by Congress. Two lines were run by different surveyors, one by Ludlow and the other by Roberts. It is unnecessary here to trace the history of these lines, or to show which is scientifically correct. It is enough to say the Congress, in 1818, established Ludlow's line as the true boundary, and excluded entries upon the west side of it.

In this state of things, Wallace, being the owner and holder of unsatisfied military bounty-land warrants, issued by the State of Virginia for the services of her troops on the Continental establishment in the war of the Revolution, located them, in 1838 and 1839, on lands which he asserted to be within the district reserved by Virginia to satisfy warrants of this class, in her deed of cession to the United States of March 1st, 1784. The entries were, however, made on the west side of Ludlow's line. That lime, therefore, excluded the land on which Wallace located his entries, though Roberts's line included them.

The lands on which the attempt was thus made to locate these warrants had long before that time been disposed of to other parties, and the government declined to recognize the validity of Wallace's proceedings, and refused to issue patents to him. Wallace accordingly filed a petition in the Court of Claims; a court which, by the act constituting it, has power to hear and determine claims against the United States, founded upon any law of Congress, or regulation of an executive department, or upon any contract with it, express or implied. His claim was that as the government had wrongfully appropriated the lands on which the warrants were laid, and as he could not get the lands themselves, he should be paid the amount of money received into the treasury from their sale, with interest, or, in lieu thereof, have land scrip issued to him; the petitioner stating that he would be satisfied with this, 'or with such other mode, if any there be, as will be equitable and just.'

Wallace dying soon after, his executor and devisee, one Bonner, took his place upon the record. He insisted in the Court of Claims that there was no power in Congress to establish Ludlow's line as the true boundary, since Virginia had not assented to this action on its part, and since it was demonstrable that this line did not include all the lands between the two rivers.

The Court of Claims, however, took a different view of the obligations of the government, and decided adversely to the claim on its merits.

The case being now here for review.

Mr. Hoar, Attorney-General, and Mr. Talbot, special counsel, for the United States, having argued the question of merits, in reply to Mr. J. J. Coombs, for the appellant, contended that there was a defect in the appellant's case on its face; that the allegation of the petition was of property held in trust by the United States for the satisfaction of these bounty warrants, and of a violation of this trust by the trustee; with a prayer not for judgment for a sum of money, but in fact for any equitable relief; that the Court of Claims being created by statute, its equitable jurisdiction was to be sought for in the acts of Congress defining its powers; and that there no such jurisdiction could be found. It was not authorized to give judgment except upon the basis of an act of Congress, a regulation of an executive department, or a contract, which terms did not include a case of trust arising out of a Virginia bounty-land warrant.

Mr. Justice DAVIS delivered the opinion of the court.

title: Bonner v. United States


text:
Green v. United States

 * Green v. United States (76 U.S. 655)
 * Green v. United States (355 U.S. 184)
 * Green v. United States (356 U.S. 165)
 * Green v. United States (365 U.S. 301)

See also United States v. Green.

title: Green v. United States


text:
Bonner v. United States/Opinion of the Court

If the position of the counsel of the United States, that the Court of Claims has no authority to hear a case of this character, be well taken, we are relieved of the necessity of deciding the merits of the controversy.

The claimant insists that there was no power to establish Ludlow's line as the true boundary, and exclude entries on the west side of it, as Virginia did no assent to this action on the part of Congress, and as it is demonstrable that this line does not include all the lands between the two rivers.

If this position be correct, this claim is based on the theory that the United States has violated the trust contained in the deed of cession of the Northwestern Territory, and is bound in good conscience to furnish compensation to the Virginia beneficiaries who suffer by this misconduct. This makes a case for the interposition of a court of equity, and if it were a controversy between two private suitors, it would have to be settled there, for a court of law could not afford the proper mode and measure of relief. But the Court of Claims has no equitable jurisdiction given it, and was not created to inquire into rights in equity set up by claimants against the United States. Congress did not think proper to part with the consideration of such questions, but wisely reserved to itself the power to dispose of them.

Immunity from suit is an incident of sovereignty, but the government of the United States, in a spirit of great liberality, waived that immunity in favor of those persons who had claims against it which were founded upon any law of Congress or regulation of an executive department, or upon any contract with it, express or implied, and gave the Court of Claims the power to hear and determine cases of this nature.

The inquiry then arises whether the present case, in view of this limited jurisdiction, is one that the Court of Claims had a right to consider. The answer to this question seems to us of easy solution. It is not pretended that there was any regulation of a department to justify the entries in dispute, and it is certain, instead of having a law of Congress to rest upon, they were made in violation of the whole course of legislation by Congress on the subject. Congress has not only, in fixing the boundary line of the reservation, excluded these entries, but has also limited the time in which the holders of warrants of the class in question should have the right to locate them, and, in addition to this, has forbidden their location on tracts of land for which patents had been previously issued, or which had been previously surveyed.

As the land in question had been previously patented to individuals, or granted for the use of schools, it follows that the attempt on the part of the claimant to locate his warrants on them was contrary to law, and that the claim which he now makes for compensation, because of the failure of this proceeding, cannot be said to be founded on a law of Congress. Nor can it be said to be based on a contract in the sense of the law conferring jurisdiction on the Court of Claims. That court was authorized to enforce legal rights and obligations, but it could not proceed further and judge of the equities between the citizen and his government. In the absence of legislation by Congress the holder of a Virginia military bounty-land warrant can have no legal right against the United States for compensation on the allegation that the government has wrongfully appropriated to other uses the lands ceded for his benefit.

It is only a contract authorized by law that the Court of Claims can consider, and as there is no law of Congress on this subject there is nothing on which that court could base a judgment against the United States, if, in the opinion of that tribunal, it had not fulfilled its duties towards the beneficiaries under the Virginia deed of cession. The liability of the government, if at all, arises out of the breach of an accepted trust, and that liability cannot be enforced at law. The claimant is in no better position because the government is the trustee than he would be if a private person occupied that relation, and it is very clear, if such were the case, that a court of equity would abone have the power to deal with him.

As the government has not thought fit to allow itself to be sued in the Court of Claims on equitable considerations, it follows that the remedy of the claimant, if any now exists, is with Congress.

The judgment of the court below is REVERSED, and the case is remanded to that court with directions to dismiss the petition for

WANT OF JURISDICTION.


text: Talk:Bonner v. United States/Opinion of the Court


text:
The Harriman

APPEAL from the Circuit Court for the District of California, the case being thus:

During the recent war between Spain and the Republics of Chili and Peru, the Spanish fleet being engaged in active hostilities in the South American waters against the ports of the enemy, required supplies of steam-coal, and vessels were taken up on charter, in San Francisco, to convey cargoes for delivery at sea to the vessels of the fleet in aid of the hostile operations of blockade and bombardment of the Chilian ports.

Among these vessels taken up by persons watching the operations of the Spanish fleet, was the ship B. L. Harriman, which was engaged in this service by a charter-party, under date of May 4th, 1866, entered into between one C. J. Jansen, her owner, a merchant of San Francisco, and a certain Emeric, as freighter, also a merchant of that city.

The ship engaged her whole capacity to the freighter, and to take no cargo except from him or his agent, he stipulating to furnish a cargo of 786 tons of steam-coal (already laden on board) and to pay 'for the use of said vessel during the voyage aforesaid, $15 per ton, one-half to be paid here to C. J. Jansen of San Francisco, two days after the sailing of the vessel, and the other half to C. J. Jansen, of San Francisco, on receipt of cancelled bill of lading that the coal has been delivered.'

The owner stipulated for the freighting and chartering of the vessel 'for a voyage from San Francisco to Cobija, Bolivia, or other ports in the Pacific; the port of discharge to be named before the vessel sails from San Francisco; such instructions to be given by letter in triplicate, which will contain the privilege which is hereby given, that if the vessel proceeds direct by the instructions given to Valparaiso, the commanding officer of the Spanish navy will have the right to receive only a part of the cargo, the whole, or none, and to send her, if he desires, to another port in Chili, Peru, or the Chincha Islands, and in that case, the vessel will immediately proceed to the port which will be named by said commanding officer, and there complete her discharge.'

The letter of instructions provided for in the charter-party was given by the freighter to the master of the ship, under date of May 14th, 1866, and says:

'I hereby name you the port of Valparaiso, Chili, as the first port you have to proceed to on leaving San Francisco, and when there, to report yourself to the commanding officer of the Spanish navy, who will have the right &c.' (pursuing the privilege contained in the charter-party).

The instructions proceed:

'I herewith hard you a letter for the commanding officer of the Spanish navy, at Valparaiso, which contains the bill of lading of your entire cargo of coal, indorsed to his order, a duplicate of this charter-party, and of this letter.'

On May 17th, 1866, before the ship sailed, the freighter addressed another letter of instructions to the master, containing a copy of some instructions which he had himself received from Panama, and requesting the master to follow them so far as he could. They were thus:

'On receipt of this letter, if you have not attended to all our outstanding orders, you are requested to suspend operations until further ordered, including even the last one thousand tons of coal, for it is more than possible that the naval forces down there will have changed their base of operations. In case, however, you should have taken up a vessel before the present reaches you, then you must instruct the ship to seek after the fleet between the port of Valparaiso and the Chinchas.'

On the 19th of May, the freighter gave to the master the liberty to call at the Chincha Islands, if wind and weather or other circumstances favored his making them ''without prejudicing the freighter's rights under the charter-party and instructions. These islands are about 1200 miles north of Valparaiso'', to which place, it will be remembered, that by the principal letter of instructions the freighter had directed the master to go.

After the ship sailed, the owner wrote a letter to the freighter, in which he says:

'In your charter of the ship B. L. Harriman there is no provision made for the possibility of there being nobody to receive her (the ship's cargo) on arrival, nor do I know that the captain of the Harriman had your private instructions on this point. At the time of making the charter we could hardly contemplate anything of the kind, hence the omission, and wish you will make some provision in the event such should be the case, and instruct me how to act, that I may communicate same to Captain Swenson.'

During the period of this transaction, war existed between Spain and Chili. The cargo was intended for the admiral of the Spanish fleet, then supposed to be operating against Valparaiso. The ship sailed from San Francisco, May 22d, and on May 24th the fleet left the coast of Chili, and went to parts unknown, and did not return there. The ship arrived at the Chinchas August 3d, 1866, and was there informed of the bombardment of Callao by the Spanish fleet, May 2d, that the fleet had been badly shattered and had sailed away; that a regular mail steamer from Valparaiso reported at the Chinchas that all was quiet at Valparaiso, and that nothing was known of the fleet. The master also proved that the coal would have been seized at the Chinchas if he had betrayed the objects of the voyage, as the feeling was very bitter, and that he believed the coal would have been instantly seized at Valparaiso.

The ship returned to San Francisco without having ever gone past the Chincha Islands. Being now in San Francisco, the owner offered to deliver the cargo there to the freighter, on payment of freight according to the charterparty. Payment of freight was refused by the freighter, and the cargo was demanded by him, which was refused except on payment of freight. The owner sold the cargo, and the freighter libelled the ship for the value of the cargo, and to recover back the amount paid under the charter-party, at the outset of the voyage, as so much freight paid in advance. The owner justified the sale under his lien for freight, claiming the unpaid charter-money, and a return freight at the same rate for the home voyage.

The District Court sustained the owner's right and lien for the unpaid charter-money, but rejected the claim for freight on the return voyage, and, as a result, gave a decree against the vessel for the balance of the proceeds in the owner's hands from the sale of the cargo, after satisfying the lien as allowed.

The Circuit Court rejected the right and lien of the owner to the charter-freight, and gave a decree for the proceeds of the cargo, sold, and the charter-money paid at the outset of the voyage.

The claimant appealed to this court.

Mr. Evarts, for the appellant:

The real freighter, acting through the agency of the libellant, a San Francisco merchant, was obviously the admiral of the Spanish fleet, and to him the cargo was consigned, the bill of lading indorsed, and to him the ship was required to report, and his instructions the master was required to obey. The whole object of the voyage and the whole motive of the affreightment, were the supply of coal to the Spanish fleet, for use therein, in aid and support of its hostile operations against the Chilian seaports. This service of the ship not only made the cargo, by its destination, contraband of war and lawful prize to the Spaniard's enemy, but exposed the ship itself, thus made a guilty tender of the Spanish maritime hostilities, to lawful capture and condemnation. These considerations determine the destination of the voyage as the Spanish fleet off the coast of Chili, and limit the purpose and the significance of any reference to Valparaiso, the Chinchas, or the other geographical or commercial points, to an ascertainment of the situs of the fleet, within the reciprocal engagements of the charter-party. The ports or commerce of the Spaniard's enemy were not only wholly foreign to the purpose and the terms of the projected voyage, but the nature of the enterprise and the interests of owner and freighter alike, excluded such ports and commerce as an alternative resort, or even a possible refuge, unless from otherwise inevitable shipwreck. By the very necessity of the reciprocal engagements, therefore, upon which the project of the voyage rested, the situs of the Spanish fleet, as the terminus of the voyage, and the presence of the consignee, the admiral, to receive the deposit of the cargo and liberate the ship from its transported burden, was within the obligations of the freighter, and clear of any responsibility or venture of the owner. The charter-party, the contemporaneous instructions, and the last advices from the Spanish fleet, communicated to the master by the freighter, admit of but one interpretation. The Spanish fleet was to receive the cargo at Valparaiso, and the admiral, within certain limits, was to direct its deposit or distribution. By the advices communicated by the letter of the freighter to the master, under date of May 17th, an indulgence rather than a right was suggested, that, contingently, the presence of the Spanish fleet between Valparaiso and the Chincha Islands should be a sufficient compliance with its obligations in respect of the geographical terminus of the voyage.

The ship sailed upon and completed the voyage, bringing itself within the waters contemplated as the situs of the Spanish fleet for the reception of the cargo. She held the cargo merely for delivery, and nothing but the absence of the stipulated depositary and consignee prevented the delivery. Within two days after the ship sailed from San Francisco (May 24th), the Spanish fleet voluntarily withdrew from the South American waters, and never returned. Thus, by this voluntary act of the freighter's principal and stipulated consignee, the delivery of the cargo was prevented, its deposit rendered impossible, and the ship's master made the freighter's agent, by necessity, for the preservation of the cargo. The master of the ship, observing all the obligations of his new and compulsory duty, by prudent counsels and prompt action, extricated the cargo from the destruction to which the consignee had abandoned it, and the ship itself from the peril to which the consignee's desertion of his obligations had exposed it.

The decree of the Circuit Court should be, therefore, reversed, and the decree of the District Court either affirmed or modified, according as the judgment of this court shall be on the question of the earning of freight on the return voyage.

Mr. B. R. Curtis, contra, contended that whatever expectations the parties might have had, the contract was an absolute contract to proceed to Valparaiso, unless otherwise directed by the Spanish admiral while on the voyage to that port; that the meaning of the contract was not to be influenced by the result of the war in Chili; that the parties not having had an ex post facto experience, the contract was not to be interpreted by ex post facto discoveries; that the contract had not been performed, inasmuch as the ship proceeded but to the Chinchas, twelve hundred miles short of the proper port, and then, not having found the Spanish fleet, immediately broke up the voyage and began her return voyage to San Francisco; that the charterer had in no manner waived performance, nor prevented it by any fault of omission or commission; that as a necessary deduction from the foregoing premises no freight had been earned, and that the owner, Jansen, must account for the full value of the cargo, and refund the half freight paid in advance.

The learned counsel further argued, that it was a proposition too clear for denial, and one which had been lately strongly applied in this court, that where a party undertakes positively to perform a certain act for a certain stipulated compensation, he cannot claim the compensation, however difficult or impossible performance may be, so long as the act remains unperformed, unless, indeed, the non-performance is owing to the fault or omission of the other contracting party; that when a ship was chartered for a port known to be blockaded, or for a port which was subsequently put under blockade, the risk or impossibility of entry could never be urged on behalf of the ship as entitling her to freight, as if the voyage had been performed, and that the same rule was applied against charterers.

Mr. Justice SWAYNE stated the case, and delivered the opinion of the court.

title: The Harriman


text: Talk:The Harriman

title: Talk:The Harriman


text:
The Harriman/Opinion of the Court

This is an appeal in admiralty from the decree of the Circuit Court of the United States for the District of California.

The charter-party, which lies at the foundation of the controversy, bears date on the 4th of May, 1866. The parties to it were Jansen, the claimant, and owner of the ship, and Emerick, the freighter. Both parties were merchants of San Francisco. The entire capacity of the ship was engaged to the freighter. He stipulated to furnish her a cargo of 786 tons of steam-coal, and to pay 'for the use of said vessel during the voyage aforesaid, $15 per ton in United States gold coin, one-half to be paid here to C. J. Jansen, of San Francisco, two days after the sailing of the vessel, less two and one-half per cent. discount for cash, and the other half to C. J. Jansen, of San Francisco, on receipt of cancelled bill of lading that the coal has been delivered.' The owner stipulated 'for a voyage from San Francisco to Cobija, Bolivia, or other ports in the Pacific; the port of discharge to be named before the vessel sails from San Francisco; such instructions to be given by letter in triplicate, which will contain the privilege which is hereby given, that if the vessel proceeds direct by the instructions given to Valparaiso, the commanding officer of the Spanish navy will have the right to receive only a part of the cargo, the whole, or none, and to send her, if he desires, to another port in Chili, Peru, or the Chincha Islands, and in that case, the vessel will immediately proceed to the port which will be named by said commanding officer, and there complete her discharge.' In pursuance of the condition of the charter-party Emerick, on the 14th of May, 1866, addressed a letter to Swenson, the master, in which he said: 'I hereby name you the port of Valparaiso, Chili, as the first port which you have to proceed to on leaving San Francisco, and when there to report yourself to the commanding officer of the Spanish navy, who will have the right to take only a part of your cargo of coal, the entire cargo, or none, and if he desires, to send you to another port in Chili, Peru, or the Chincha Islands, in which case you will have to proceed immediately to the port named by said commanding officer, and there complete your discharge, these conditions and privileges being part of the charter-party. I herewith hand you a letter for the commanding officer of the Spanish navy at Valparaiso, which contains the bill of lading of your entire cargo of coal, indorsed to his order.' On the 17th of May, Emerick addressed another letter to the master, in which he gave a copy of the instructions he had received from Panama, which were as follows: 'On receipt of this letter, if you have not attended to all our outstanding orders, you are requested to suspend operations until further ordered, including even the last one thousand tons of coal, for it is more than possible that the naval forces down there will have changed their base of operation. In case, however, you should have taken up a vessel before the present reaches you, then you must instruct the ship to seek after the fleet between the port of Valparaiso and the Chinchas.' He added: 'As far as it is in your power you are requested by me to follow the above instructions.' On the 19th day of May, Emerick gave the master permission to make the Chincha Islands, if circumstances should be favorable, without, however, prejudicing his 'rights under the charter-party, and instructions.'

On the 22d of May, the vessel left San Francisco for the port of Valparaiso. She was freighted according to the charter-party. On the 16th of June following, Jansen said to Emerick, by letter of that date, 'In your charter of the ship B. L. Harriman, there is no provision made for the possibility of there being nobody to receive her (the ship's cargo) on arrival, nor do I know that the captain of the Harriman had your private instructions on this point. At the time of making the charter we could hardly contemplate anything of the kind, hence the omission, and wish you will make some provision in the event such should be the case, and instruct me how to act, that I may communicate same to Captain Swenson.'

Emerick made no reply. The ship proceeded to the Chincha Islands, and returned thence to San Francisco. Captain Swenson, in his protest, says that on the 4th of August he took a pilot on board and ran in near to the southernmost of those islands, and 'lay in close to the land.' He went ashore, and learned that the Spanish fleet had hauled off from the Chilian coast, and gone upon an unknown destination. After diligent inquiry, he became satisfied that any attempt to find the fleet would be 'impracticable and fruitless.' He became satisfied also that it was necessary to return at once to San Francisco, and took his departure the same day on his return voyage. He considered his original voyage broken up by the withdrawal of the Spanish fleet, and the absence from Valparaiso of its commander, the consignee of his cargo. Upon the return of the vessel Emerick refused to pay the balance of the freight-money. Jansen thereupon landed and sold the cargo. Emerick filed this libel, seeking thereby to recover back the freight-money he had paid and the value of the cargo. The owner proved that at the time the charter-party was entered into war existed between Spain and Chili; that the cargo was intended for the admiral of the Spanish fleet, then supposed to be operating against Valparaiso; that on the 24th of May the Spanish fleet left the coast of Chili and went to parts unknown, and did not return there. He proved by the master the facts stated in his protest, and further, that he was informed at the Chincha Islands of the bombardment of Callao by the Spanish fleet; that the fleet had been badly shattered, and had sailed away. The master feared his coal would be seized at the Chincha Islands, if he betrayed the object of his voyage. The feeling there was very bitter. He believed the coal would have been instantly seized at Valparaiso.

Thus the case stood upon the proofs. The District Court decreed for the owner. The Circuit Court decreed against him, and he has brought the case to this court for review.

In settling the rights of the parties, the inquiries which demand our attention are: What was the contract between them? Was it fulfilled by the ship? and if not, was the nonfulfilment excused by fault or waiver on the part of the charterer, or by other facts, disclosed in the proofs, so as to entitle the owner to all, or any part of, the freight-money stipulated for in the charter-party?

According to that instrument, the destination of the vessel was to be fixed by letter before her departure upon her voyage. If it were Valparaiso, the commanding officer there of the Spanish fleet was to be the consignee, with the right to direct the ship to proceed further, and deliver all or a part of her cargo elsewhere. By the charterer's letter of the 14th of May, Valparaiso was designated as the port to which she was first to proceed.

This destination was not subsequently changed, either in fact or according to the understanding of the parties. Emerick's letter to the master, of the 17th of June, requested him to search for the Spanish fleet between Valparaiso and the Chincha Islands, but it gave no intimation of a purpose or willingness that he should abandon the voyage to Valparaiso, as originally prescribed, and certainly no authority to that effect.

The charterer's letter of the 19th of May, authorizing the master to make the Chincha Islands, expressly reserved his rights 'under the charter-party and instructions.'

Jansen's letter of the 16th of June admits that the vessel had sailed for Valparaiso, and asks instructions as to the disposition of the cargo if the Spanish commander should have left there before her arrival. The master states in his protest that his destination, upon leaving San Francisco, was Valparaiso. He went no further than the Chincha Islands, which were short of that point about twelve hundred miles. He made no search for the fleet between the two points, and gave no reason for breaking up the voyage and not proceeding to the port of delivery, but the probable absence of the consignee and the peril there to ship and cargo.

The existence of the war was known to both parties when the contract was entered into. The owner made no provision against any contingency. His engagement was simple, direct, and unconditional, that the vessel should proceed to Valparaiso. The presence or absence of the consignee was immaterial. If absent it was the right and duty of the master to place the cargo in store. The contract was not fulfilled. For this the shipper is in nowise responsible. Such are the relations of the parties.

The contract of affreightment is governed by the same principles as other special contracts. There are none to which these principles are more stringently applied. The contract is an entirety; and where there has been no complete fulfilment on one side, and no fault or waiver on the other, no freight-money can be recovered. Mr. Justice Story says this is the result of all the cases.

In Paradine v. Jane, the court said: 'When the party by his own contract creates a duty or charge upon himself he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have guarded against it by his contract.' Such has always been the rule of the common law. If a lessee covenant to repair, and the house is burned down, he is bound to rebuild. If a party covenant to build a bridge and keep it in repair for a specified time, and it be swept away by an extraordinary flood before the time expires, he must replace it. A party agreed to secure in England for another the exclusive right to make, use, and vend in the Canadas a machine covered by a patent from the United States. It was found that this could only be done by an act of the British Parliament. As such a grant, however improbable, was not impossible, it was held that the case was within the rule laid down in Paradine v. Jane, and that the covenantor was liable for the breach of his agreement. If a condition be to do a thing which is impossible, as to go from London to Rome in three hours, it is void; but if it be to do a thing which is only improbable or absurd, or that a thing shall happen which is beyond the reach of human power, as that it will rain to-morrow, the contract will be upheld and enforced.

The principle deducible from the authorities is, that if what is agreed to be done is possible and lawful, it must be done. Difficulty or improbability of accomplishing the undertaking will not avail the defendant. It must be shown that the thing cannot by any means be effected. Nothing short of this will excuse non-performance. The answer to the objection of hardship in all such cases is that it might have been guarded against by a proper stipulation. It is the province of courts to enforce contracts-not to make or modify them. When there is neither fraud, accident, nor mistake, the exercise of dispensing power is not a judicial function.

A charterer agreed to load a ship at Liebeau with barley. The ship went there to receive the cargo. The factors of the shippers informed the master that the Russian government had forbidden the exportation of barley, and that no loading could be furnished. The ship returned in ballast. The charterer was sued for the breach of the contract. Lord Kenyon said: 'I am decidedly against the defendant upon the point of law. It is said in Coke Littleton (1), that if a man be bound in an obligation to A., conditioned to enfeoff B., a stranger, and B. refuses, the obligation is forfeited, for the obligor has taken upon himself to make the feoffment. The reason of this is clear. If a man undertake what he cannot perform, he shall answer for it to the person with whom he undertakes. I am always desirous to apply the settled principles of the law to the regulation of commercial dealings.'

A charterer covenanted to freight a ship at Gibraltar with a homeward cargo. A pestilent disease broke out there, and all public intercourse was forbidden by law. The cargo could not have been put on board without danger to all concerned of contracting and communicating the disorder. Lord Ellenborough said: 'If in consequence of events which happen at a foreign port the freighter is prevented from furnishing a loading there, which he has contracted to furnish, the contract is neither dissolved, nor is he excused for not performing it, but must answer in damages.'

An owner, by a charter-party, agreed that his ship should proceed from Liverpool to Terceira, and deliver her cargo. Terceira was under blockade, and both parties knew it. There was no intention to break the blockade. The ship did not go. The owner was held liable. The rule laid down in Paradine v. Jane was cited and approved.

A ship was chartered to proceed from Charleston to Rotterdam. She went to London, and the master learned that if she proceeded to Rotterdam she would be liable to seizure there and on the way, and to confiscation, under a decree of the Emperor Napoleon, for having touched at a British port. The master refused to proceed, and landed the cargo. Lord Ellenborough said: 'Freight could only be earned by performing the terms of the charter-party.' The goods 'were brought here, instead of being conveyed to their port of destination.' This case, in its essential points, is strikingly like the one under consideration.

In Lorillard v. Palmer, the vessel sailed on a voyage from Richmond to New York. Finding the Chesapeake Bay blockaded so that it was impossible to proceed without capture, she returned to Richmond. It was held that the shipper was entitled to receive back his goods without paying any freight.

A ship was chartered for a voyage from the city of New York to the city of St. Domingo. The later was found to be blockaded. The ship was turned away by a blockading vessel, and returned to New York. It was held that the charter-party was dissolved, 'and all claim to freight under it gone.' The court said: 'Nor is this a case for pro rata freight. Here was no acceptance of the cargo at an intermediate port.' It was added that the owner of the ship may make himself liable for freight by accepting the goods short of the port of destination, upon the grounds of an implied contract, resulting from the partial transportation of the goods and the benefit received. 'But when the cargo, as in the present case, is brought back to the port of lading, no such presumption can arise. No benefit has accrued to the owner, nor has he done any act from which an implied contract to pay any freight can be raised.'

There is nothing in the record to excuse the conduct of the vessel, or to entitle the owner to any part of the stipulated compensation.

It is unnecessary to pursue the subject further. We think the decree of the Circuit Court was in all things correct, and it is

AFFIRMED.

title: The Harriman/Opinion of the Court


text: Talk:The Harriman/Opinion of the Court

title: Talk:The Harriman/Opinion of the Court


text:
In the Matters of Howard

THESE were two motions which were heard together, as they involved a consideration of similar questions, and grew out of the same facts. The first motion was for a peremptory mandamus to the judges of the Circuit Court of the United States for the District of Iowa (the alternative writ having been heretofore issued and returned), commanding them to execute a decree of that court rendered in the case of Howard and others v. The City of Davenport and others, by distributing certain funds in its custody. The second motion was to dismiss the appeal from the final decree, rendered in a subsequent suit, affecting the distribution of those funds.

The facts out of which these cases arose, were substantially as follows:

In 1854 the legislature of Iowa incorporated a company, styled the Mississippi and Missouri Railroad Company, to construct a railroad from Davenport to Council Bluffs, in that State, with a branch to Oskaloosa. To raise the necessary funds for the construction of the road the company executed, previous to 1861, several mortgages upon its property to secure its bonds, issued at different times, amounting to over six millions of dollars. The company also received, previous to 1861, in payment of subscriptions of stock, bonds to a large amount of certain cities and counties in the State, through which the road was located, the payment of which bonds was guaranteed by a special indorsement upon each. With the guaranty of this indorsement it disposed of the bonds to different parties.

In 1865 the company became embarrassed and insolvent, and in February, 1866, a suit was brought in the Circuit Court of the United States for the District of Iowa for the foreclosure of the mortgages upon its property. In May following the suit resulted in a decree for the sale of the property, and in July of the same year a sale was made under the decree, by a master in chancery, to the Chicago, Rock Island, and Pacific Railroad Company, a corporation created by the State of Iowa. The foreclosure and sale were made pursuant to an arrangement entered into between the stockholders and the greater number, but not all, of the bondholders, and other creditors of the company, by which it was agreed that the sum of $5,500,000 in bonds of the purchasing company should be given for the property, and applied to the payment of the bonds secured by the different mortgages of the insolvent company, in conformity with a specified scale, with the exception of an amount equal to sixteen per cent. on the capital stock of that company, namely, $552,400, which should go to its stockholders.

Previous to this time Mark Howard and John Weber had severally recovered judgments against the city of Davenport, and also against the Mississippi and Missouri Railroad Company, upon certain bonds issued by that city to aid in the construction of the railroad, and guaranteed by that company. In the distribution of the proceeds to be received upon the sale of the property of the insolvent company no provision was made for the payment of these judgments, and on the 9th of July, 1866, the day on which the sale mentioned under the decree of foreclosure was made, Howard and Weber brought a suit in equity in the same court against the parties to the foreclosure suit to obtain payment of their demands out of the proceeds, which, by the arrangement mentioned, were to go to the stockholders. In their bill they set forth the judgments recovered by them against the Mississippi and Missouri Railroad Company; that the company was insolvent; that all its property had been sold under the decree of foreclosure; and that there was no other property out of which these judgments could be made than the $552,400 which was to be received by the stockholders out of the proceeds of the sale.

During the progress of the suit fourteen other persons appeared and presented claims of a similar character, to an amount exceeding seven hundred thousand dollars, against the same fund. These parties are designated in the proceedings as 'intervening claimants joining in the bill.' On application of the complainants and these intervening claimants a receiver was appointed by the court to collect and hold the fund which they were seeking to subject to the payment of their claims. This officer subsequently received from the Chicago, Rock Island, and Pacific Railroad Company, the purchasing company, in its first mortgage bonds, with interest coupons attached, the amount which was to go to the stockholders of the insolvent company, and has ever since held that same in his custody, subject to the order of the court.

In May, 1868, a final decree was rendered in the suit, adjudging that the complainants and intervening claimants were entitled, as creditors of the Mississippi and Missouri Railroad Company, to so much of the purchase-money of its property as was agreed to be reserved for the stockholders; and directing the purchasing company to pay the same, less a small sum allowed for over-payment, in cash or its bonds, to the receiver; and directing the receiver, if paid in bonds, to convert the bonds into money, and, after satisfying certain costs, distribute the proceeds to the complainants and intervening claimants pro rata, in proportion to the amounts of their respective claims, which were stated. On appeal to this court this decree was affirmed, and the mandate to the Circuit Court, issued in pursuance of the judgment of affirmance, commanded 'that such execution and proceedings be had in said cause, as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding.'

Whilst the appeal was pending Frederick A. Foster presented a petition to the Circuit Court, setting forth that he was a holder of certain bonds of the Mississippi and Missouri Railroad Company, secured by a mortgage on its property, which had never been paid; that he was not a party to the arrangement by which, upon a sale of the property, as already mentioned, a certain portion of the proceeds received were to be paid to the stockholders, and insisting that the fund thus realized was applicable to the payment of these bonds, and praying for an order restraining the distribution of the fund in the hands of the receiver, and directing that upon proper pleadings an issue be joined between the petitioner and other holders of bonds who never assented to the arrangement mentioned, and the complainants and intervenors, to settle the priorities of the parties in an application of the fund.

Subsequently three other parties, McCollum, Bardwell, and McComb, presented similar petitions to the Circuit Court, setting forth that they were also holders of bonds of the insolvent railroad company, which had never been paid, and asking that the proceeds derived from a sale of its property, in the hands of the receiver, be applied to the payment of these bonds, in preference to the claims of any parties to the suit of Howard and others.

In May, 1869, the court denied the prayer of the petitioners, but allowed them to file their petitions, and required them to file a consolidated bill at the next term of the court against all the parties to the suit, setting up their respective claims with greater particularity than in the petitions.

In July following, the petitioners, Foster, McCollum, Bardwell, and McComb, filed their consolidated bill against Howard and all the other parties to the original suit, asserting their claims as mortgage bond holders to the fund in the hands of the receiver. The bonds amounted to about seventy-two thousand dollars, with large arrears of interest, for which they claimed a lien upon the fund in preference to the claims of Howard and others, and if that was not allowed, then they claimed the right, as general creditors, to share with them in the distribution of the fund.

All the defendants answered the bill, denying that the complainants had any lien on the fund as mortgages, or any right to the fund as general creditors, and contending that if they were such creditors, the defendants were entitled, as a reward of their superior diligence, to be first paid out of the fund. No objection was made by them that after a final decree, affirmed by this court, directing a distribution of the fund, it was too late for the complainants to file their bill to reach the fund, or to share in its distribution.

In November, 1869, the Circuit Court heard the case and rendered a final decree, rejecting the claim of McCollum, and allowing the claims of the other three complainants, Foster, Bardwell, and McComb, to a limited amount as general creditors.

From this decree the complainants appealed: McCollum, because his claim was entirely rejected; Foster, Bardwell, and McComb, because they were allowed to come in only as general creditors. The appeal was now pending in this court.

After this appeal was perfected, Howard and others, the complainants and intervening claimants in the original suit, applied to the Circuit Court for a rule on the receiver to proceed to execute the decree rendered therein by the distribution of the fund in his hands, as provided by the decree in that case, notwithstanding the appeal of Foster and his associates, or of any of them; or in case the court should be of opinion that the motion could not be granted in full, that then the receiver should be ordered to proceed to execute the decree, except as to such portion of the fund as to which execution was suspended by order of the court made at the May Term. This motion the Circuit Court denied.

The same parties then applied to this court for a writ of mandamus to the judges of that court, commanding them forthwith to execute the decree rendered at the May Term, 1868, and affirmed by this court, or to execute the decree by distributing all the fund, excepting sufficient to cover the claims of the appellants. This court, as is usual in applications for a mandamus, on a prim a facie showing, allowed the alternative writ, which being returned, the parties now asked for the peremptory writ. The parties at the same time moved to dismiss the appeal from the final decree in the above suit of Foster and his associates.

Messrs. Grant and Rogers, in support of the motions:

1. A judgment or decree affirmed by this court cannot be altered by new pleadings or evidence in the court below, but must be executed in the exact manner in which it is affirmed. Such is the rule in the State courts.

The question has been conclusively settled in this court by a series of decisions. In Sibbald's case this court said that 'no principle is better settled, or of more universal application, than that no court can reverse or annul its final decrees or judgments, for errors of fact or law, after the term at which they have been rendered, unless for clerical mistakes, or to reinstate a cause dismissed by mistake; from which it follows, that no change or modification can be made which may substantially vary or affect it in any material thing. Bills of review in cases of equity, and writs of error coram nobis, at law,' they say, 'are exceptions, which cannot affect the present motion.' They add:

'When the Supreme Court have executed their power in a cause before them, and it requires further action, it sends a mandate to the court below. Whatever is before this court, and is disposed of, is considered finally settled. The inferior court is bound by the law of the case, and must carry it into execution according to the mandate. They cannot vary or examine it for any other purpose than execution, or give any other or further relief, or review it upon any matter decided on appeal for error apparent, or intermeddle with it further than to settle so much as has been remanded. After a mandate, no rehearing will be granted. It is never done in the House of Lords. And on a subsequent appeal nothing is brought up but the proceedings subsequent to the mandate.'

2. If it be argued that Foster and others were not parties to the decree and not bound by it, we answer, that if all the necessary parties were not before the court when the case was originally heard, it was the duty of the court to require the plaintiffs to bring them in, and a failure to do so was ground of error in that cause.

But this court, in affirming the decree, decided that neither the bondholders nor stockholders were necessary parties, and they held, by implication at least, that no other parties were necessary, and the plaintiffs in Howard's suit had a right to file a bill as general creditors for themselves alone, and thus gain as at law a preference by the judgment in their favor over other creditors of the same degree who may not have used equal diligence. No right to intervene in this cause.

Messrs. F. Withrow and S. W. Fuller, contra, citing Gillespie v. Alexander, Williams v. Gibbs, and other English and American cases.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: In the Matters of Howard