Bourne v. Maybin.

was, and giving a palpably false and exaggerated statement of his expenditures in her behalf, thus making it appear that there was nothing due her, when in fact a large sum was due.

Clearly, this is not the case in which the Code intended to relieve the guardian from the liability for interest, and the commissioner was right in charging interest.

It remains to pass upon the correctness of the sum found due from Maybin to his ward by the commissioner.

"A trustee is bound to keep clear, distinct and accurate accounts. If he does not all presumptions are against him, and all obscurities and doubts are to be taken adversely to him: " Blauvelt v. Ackerman, 23 N. J. Eq., 495.

"Trustees cannot use trust moneys in their business, nor embark it in any trade or speculation. If a trustee makes such use of the money he will be responsible for all loss, and he may be compelled to pay the highest rate of interest:" Perry on Trusts, sec. 464.

Applying these rules to the case in hand, it is impossible to say that the commissioner has reported too large a sum against the guardian. The estimate made by the commissioner, of the amount which should have been received for the hire of slaves, seems to be supported by the testimony which would have justified a much higher valuation. His estimate of the value of the personal property, other than slaves, which come to the hands of the guardian, and was appropriated by him as his own, is also borne out by the evidence. Besides, the commissioner has allowed the guardian $1,641 more then he should for removing the mortgage incumbrance on the property subject to his life estate, and he has omitted to charge interest against the guardian for the four years of the war. As the guardian had appropriated the trust estate to his own use, and treated it from the beginning of his guardianship as his own, there is no ground for this omission. He is chargeable with interest from the time he appropriates his ward's property until he accounts and pays for it.

I do not go into a minute discussion of the evidence on which the commissioner based his conclusions, because his

Bourne v. Maybin.

report is presumed to be correct until error is made to appear. This has not been done. Even allowing the guardian a credit for the $500 which it is shown he paid towards the maintenance and education of his ward, and interest on this sum, the balance found by the commissioner is too small when his mistake in the amount allowed for satisfying the mortgage on the ward's lands, and his failure to charge interest during the war, are taken into consideration. The amount actually due the petitioner is considerably larger than the amount reported. As the sum reported will more than absorb all the assets of the bankrupt estate, the petitioner does not ask for any modification of the decree.

In my judgment, the claim of the petitioner against the bankrupt estate of Maybin, for the amount found due by the district court, is according to law, is sustained by the evidence, and the finding and allowance of the district should be affirmed.

Ordered accordingly.

INDEX.

ABATEMENT.

See JURIES AND JURORS, 1.

ACTION AT LAW.

Where the act of the legislature of Louisiana, approved February 23, 1852, by authority of which the consolidated bonds of the city of New Orleans were issued, declared that a special tax should be annually levied on real estate and slaves, to raise the sum of $650,000, to be applied to the payment of the principal and interest of said bonds, the remedy of the bondholders for the enforcement of the contract contained in said act is at law. Maenhaut o. The City of New Orleans, 1

ADMIRALTY.

See CHARTER-PARTY, 1, 2. NOVATION, 2.

1. Steamers and other water-craft navigating the Mississippi river have the right to follow the usual channels. Fawcett v. The Natchez, 16

2. It is incumbent on those who have rafts, barges or other craft moored to the banks, to foresee and provide against accidents liable to be caused by the swell of passing steamers. Ib.

8. Where a vessel is chartered for a voyage for a round sum, the charterer has the right to load the vessel himself, or allow others to do it under the contract with him. In the latter case, the goods placed on board by third persons, under such contract, are liable only for their own freight, and not for the gross sum named in the charter-party. Grand v. The Ibis,

28 4 This rule is not changed by the following clause inserted in the charter-party, viz.: "Bills of lading to be signed when presented, without prejudice to this charter-party." Ib.

5. A tug with two tows descending the Mississippi river caused one of her tows to collide with another tug anchored within 500 feet of the bank, at a place where the river was three-fourths of a mile wide. Held, that these facts, unexplained, throw the fault on the descending tug. Culberg v. The Continental, 32

When a boat is lying at anchor it is not necessary or proper for her to respond to the signals of passing steamers.

Ib.

7. Where soda, shipped on board an iron steamship at Liverpool for New
Orleans, late in the winter, was transported through the Gulf in the
warm weather of the early spring, and was damaged by the humidity
of the hold, and loss or damage by heat and sweating were among the
exceptions of the bill of lading: Held, that the case fell within the
exceptions, and the ship was not liable. Mendelsohn v. The Louis-
iana,
46

8. Under the local law of Louisiana, claims for materials and supplies
furnished a vessel in her home port are a lien on the vessel, if
recorded in the proper parish. Without such registry they have no
privilege or priority over subsequent mortgages recorded by authority
of the act of congress, or claims of later date recorded by authority of
the state law. The John T. Moore,
61
9. Claims for materials and supplies furnished in the home port, even if
duly recorded, are postponed to maritime liens.
Ib.

10. The registry of a mortgage on a vessel, to be effectual, must be made
in the custom-house of her home port.
Ib.
11. Where the mortgagee of a mortgage on a vessel, which was recorded
in the proper custom-house, had notice of a prior unrecorded mort-
gage, his mortgage was postponed to the unrecorded mortgage. Ib.

12. Where A had an unrecorded mortgage on a vessel, and B had a mort-
gage on the same vessel of later date, duly recorded under the act of
congress, but had actual notice of the mortgage of A, and C had a
lien by virtue of the registry of his claim under the state law, subse-
quent in date to the mortgages of both A and B, but C had no notice
of the mortgage of A, and the claim of either A or B was sufficient to
absorb all the proceeds of the sale of the vessel: Held, that said pro-
ceeds should be first applied to the mortgage of A.
Ib.

13. The fact that a mortgage on a vessel has not been acknowledged
before a notary public, or other officer authorized to take acknowl-
edgment of deeds, precludes its registry, but does not render it void
as against the mortgagor, nor postpone it to the recorded mortgage of
a subsequent mortgagee who had notice of such unrecorded mort-
gage.
Ib.
14. The wages of a watchman employed on a vessel while lying-up in
port are not a maritime lien.
Ib.

15. There is no maritime lien for the premium due on a policy of insur-
ance taken on a vessel by her owners.
Ib.
16. Pilotage and towage into port stand in the same rank of maritime
liens with necessary supplies and repairs. Porter v. The Sea Witch, 75
17. But a claim for towage furnished in one voyage has a lien superior to
a claim for supplies furnished on a previous voyage.
Ib.

18. A steamboat was, upon a dark and stormy night, drifting in a helpless
and perilous condition on the Mississippi river, blowing signals of dis-
tress, and the lives of all on board were in jeopardy, and the peril
was imminent. A steam-tug, on approaching her for the purpose of
affording succor to the passengers and crew, collided with and sunk
her. Held, that the steam-tug was not liable in damages if her
attempt at succor was made in good faith, and with reasonable judg
ment and skill. Gilman v. The Tyler,

111

19. In such case the degree of judgment and skill should not be weighed
with scrupulous nicety.
Ib.

20. One of two part owners of a steamboat which is employed in the car-
rying business for their common profit, can not contract with a ship-
per to apply the freight earned in carrying his goods to the payment
of an individual debt due such shipper from such part owner, without
the consent of the other. Donovan v. Diamond,
141

21. The part owners may jointly maintain a suit in admiralty to recover
the freight, notwithstanding such contract.
Ib.
22. The allowance or non-allowance of costs in an admiralty cause being
a matter within the discretion of the court, is not a subject of appeal.
Taylor v. Woods,
146
23. The rule adopted in this circuit for the apportionment of salvage is to
give one-half to the salving vessel and the other half to her officers
and crew, in proportion to their rates of wages. Sonderburg v. The
Tow Boat Company,
146
24. It is usual also to allow the salving vessel any extra expenses incident
to the salvage service which she may have incurred over and above
her ordinary outlays.
Ib.
25. The fact that salvors were engaged but a short time in the salvage
service, is entitled to but little weight in fixing the amount of their
salvage.

Ib.

26. Salvage is a reward for meritorious services in saving property in peril
on navigable waters, which might otherwise be destroyed, and is
allowed as an encouragement to persons engaged in business on such
waters, and others, to bestow their utmost endeavors to save vessels
and cargoes in peril.
Ib.

27. Salvage is awarded in such measure, proportioned to the value of the
property salved, as to secure the object intended, namely, that seamen
and others may have the strongest inducement to face danger and
incur personal risk to save that which is in peril of being lost, whether
vessel or lives or cargo.
Ib.

28. As a general rule, it is much better for all parties that the apportion-
ment of salvage among the salvors should be made by the court
rather than by the parties themselves.
Ib.

29. Owners of salving vessels, in making distribution of salvage between
themselves and the officers and crew of the vessels, should do so with
great caution, and after the fullest explanation of all the facts to the
parties interested.

80. If done otherwise, the court will set the distribution aside.

Ib.

Ib.

81. When the petty officers and crew of a salving vessel, who have sued
her owners for their share of the salvage, did not know the amount of
salvage that had been received by the owners until just before the
bringing of their suit, delay in bringing the suit could not be set up as
a defense.

Ib.

82. A libel in personam, brought by salvors to recover their share of sal-
vage against another saivor who, two years before, had received and
still held the money belonging to libelants, could not be defended
against on the ground that the claim was stale,

Ib.