33. A collision took place between two steamboats caused by the fault of
both, but the fault of one was greater than that of the other. Held,
that the court could not gauge the demerit of the boats in assessing
the damage to be borne by each. If both were in fault, though in
different degrees, the damage should be equally divided between
them. Cannon v. The Potomac,
158
34. Demurrage forms a fair subject for the allowance of damage in colli-
sion cases.
Ib.
35. Two steamboats had collided with each other by the fault of both,
and were adjudged to pay each one-half the damage. One of the
boats received insurance money to cover part of her damage. Held,
that it was not to be deducted from the share which the other steamer
was adjudged to pay, even though the underwriters had voluntarily
released her from all claim for her fault in causing the collision. Ib.
36. In such case the owners of the insured boat were allowed to apply
their insurance money to that portion of their loss for which they
had no redress against the other boat.
Ib.
37. It is according to the course and practice of courts of admiralty, where
a libelant has obtained a judgment in personam against the respon-
dent, to attach a debt due the latter from a third person to satisfy the
decree. Lee v. Thompson,
167
38. A court of admiralty has power to decide between conflicting claims
to property seized by attachment or on execution.
Ib.
39. Where a party claims property attached by a court of admiralty to
satisfy its judgment, and submits its claim to that court, he is bound
by its decision.
40. Until the passage of the act of congress, approved February 16, 1875,
"to facilitate the disposition of cases in the Supreme Court of the
United States, and for other purposes," a court of admiralty had
strictly no power to try issues of fact by a jury; but it might, either
on its own motion or at the instance of the parties, submit any ques-
tion of fact to commissioners or referees for their opinion and advice.
Their decision, however, would not, like the verdict of a jury, be con-
clusive of the facts, which would finally have to be submitted to the
decision of the court.
Ib.
41. But where, notwithstanding such error, all the evidence is before the
appellate court, that court will consider it and render such judgment
as the evidence warrants.
Ib.
42. In a case where the court of admiralty submitted issues of fact to a
jury, and the record showed that the court was controlled by the
findings of the jury, without consideration of the evidence: Held, that
the proceeding was irregular and illegal, and if the case were simply
one to be affirmed or reversed, it would be reversed.
Ib.
43. A lien given by the local law of Kentucky upon a steamboat for work
and materials furnished in that state for her construction will be post-
poned by a United States court sitting in Louisiana, to a subsequent
mortgage, duly recorded according to the act of congress, in New
Orleans, where she was registered and enrolled, and which was her
home port at the date of the mortgage and of its registration. The
Underwriters' Wrecking Co. v. The Katie,
44 Where a bark laden with cotton, and anchored outside the bar, took
fire, and as the only means of saving ship and cargo she was towed by
salvors into shallow water and filled and sunk, and her hull and cargo
were afterwards sold in that condition: Held, that the sum which
they brought at the sale was the measure of the salved property, and
that salvage should be allowed on that basis. Hayden v. The Coch
45. The amount allowed in the case to the salvors stated.
46. The part owners of a steamboat are liable for the torts of the master,
who is also a part owner, done in the execution of the business in
which the boat is engaged. Taylor v. Brigham & Kelly,
47. A ship was libeled for salvage, and a decree for salvage rendered.
The sureties for the claimants, the owners, were compelled to pay
the salvage decree. Held, that they were not entitled to priority, for
the sum so paid, over valid mortgages which antedated the salvage
services. Roberts v. The Huntsville,
386
48. When a ship is libeled and seized, and released on bond, the libelants
can not re-seize her. By her discharge she becomes free, and all
anterior liens stand good against her as before her seizure.
Ib.
49. The lien of a mortgage on a vessel, duly recorded according to section
4192, Revised Statutes, is inferior to all strictly maritime liens, but is
superior to any subsequent lien for supplies furnished in the home
port, given by state legislation. Baldwin v. The Bradish Johnson, 582
50. A state can not, by its legislation, create a len upon a vessel which
shall have priority over one already existing by virtue of an act of
congress.
Ib.
51. A tow which is itself without fault is not liable for damages resulting
from a collision caused by the fault of the tug. Westhoff v. The
Oluf,
667
52. It is no defense to a libel to recover damages resulting from a colli-
sion, to say that it was caused by the cis major, namely, a hurricane,
if the collision could have been avoided by foresight, precaution and
nautical skill. Bodin v. The Thule,
670
ADMINISTRATORS AND EXECUTORS.
See ESTATE OF DECEASED PERSONS. INTEREST.
ADVERTISEMENT.
See CONTRACTS, 1, 2, 3, 4, 7, 9.
See CONSTITUTIONAL LAW, 22, 23.
AFFIDAVIT OF ILLEGALITY.
See STATUTES CONSTRUED, 13.
1. An agent, unless expressly authorized, can not bind his principal by
receiving in satisfaction of a note held by him for collection a greatly
depreciated currency which is not a legal tender. Stoughton, & Reck
o. Hill,
2. A banking firm in New York was the financial agent of a railroad
company, was interested in its capital stock in various classes of its
securities and its floating debt. The head of the firm was president
of the railroad company, invested with full control of its financial
affairs. The company being in a failing condition, and unable to pay
the coupons about to fall due on its first mortgage bonds, said bank-
ing firm, with the concurrence of the railroad company, in the hope
of preserving the credit of the latter, and if its resources should con-
tinue to be inadequate to pay the interest on its bonds, with the pur-
pose of instituting proceedings to administer the mortgagee property
for the protection of the bondholders, agreed to purchase and hold
said coupons: Held, that there was nothing in the relations between
the banking firm and the railroad company which forbade this arrange-
ment. The banking firm was only bound to observe good faith. Dun-
can v. The Mobile & Ohio Railroad Co.,
567
8. Where said banking firm had made a temporary loan to the railroad
company, to enable it to pay interest on its maturing coupons, this
constituted a confidential debt which the banking company were
justified in repaying to itself out of the earnings of the company, the
company not objecting.
ANNEXATION OF TEXAS.
See CONTRACTS, 12, 13.
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,
Penalty of appeal bond in this case fixed at $100,000, and reasons given
therefor. Duncan & Elliot v. The Mobile & Ohio Railroad Co.,
APPOINTMENT OF CANTU AS GOVERNOR.
1. The document offered in evidence in this case as a link in plaintiff's
title, dated at Monclova, March 18, 1835, signed by Jose Benito Cam-
acho Y. Estrada, as deputy secretary, or second clerk, purporting to
be an appointment by José Maria Cantu, ad interim governor of Coa-
huila and Texas, of José Maria Balmaceda, as commissioner for the
distribution of lands to the colonists of the empressarios McMullen
and McGloin, is valid and genuine. Viesca v. Wyche,
336
8. The document purports to be an original or protocol, has all the
appearance of being such, is authenticated by the seal of the state,
and there is no suggestion that it is a forged instrument.
8. The fact that the document is signed by the deputy and not by the
principal secretary, is not fatal to its validity. The deputy secretary
was considered competent at that time to sign decrees of the govern-
ment.
Ib.
4. In this case the principal secretary, José Maria Falcon, was the attor-
ney of Viesca, the grantee of the title, and made the application to
the governor for the identical appointment in question; hence there
was a propriety in his not signing it.
ATTACHMENT.
See ADMIRALTY, 37, 38, 39.
See EXEMPTIONS, 1, 2, 3. JURISDICTION, 9, 10.
1. A bankrupt court should not make an order for the sale of real estate
returned by the bankrupt, on the ground that the title is in dispute,
when the liens upon the property exceed its value. In re Lud-
wigson,
2. Where the title to one undivided half only of certain real estate
returned by the bankrupt is in dispute, the bankrupt court is not
authorized by section 5063 of the Revised Statutes to order a sale of
the entire property.
8. It is doubtful whether the order, in a summary proceeding, of a bank-
rupt court directing the sale of real estate returned by the bankrupt,
on the sole ground that the title thereto is in dispute, can be consid-
ered that due process of law to which the party who disputes the
bankrupt's ownership is entitled.
Ib.
4. The individual members of a commercial partnership held, as joint
owners, a plantation, which, as such partners, they cultivated in
sugar-cane and other crops, and not being indebted individually,
they, for the purpose of defrauding the creditors of the firm, exe-
cuted a mortgage on the plantation to a third person without consid-
eration. Held, that this was an act for which the firm might be put
in bankruptcy. Lestrapes & Co. v. Blanc,
134
5. The bankrupt law does not require the court, in its adjudication of
bankruptcy, formally to pass upon the question whether the requisite
proportion of creditors, in number and amount of their claims, have
joined in the petition. If the defendants desire to contest this point,
they should do it in the manner prescribed by the act.
6. Where a married woman was authorized by her husband to carry on
business as a partner with other members of a firm, and was separate
in property from her husband: Held, that it was not necessary to
make her husband a party in a proceeding in involuntary bankruptcy
against the firm.
7. Suit brought and judgment recovered against a bankrupt on a fiduci-
ary debt which the bankrupt does not discharge, does not preclude
the creditor from proving the debt as a claim against the bankrupt
estate. Bourne v. Maybin,
See MUNICIPAL CORPORATIONS, 6, 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 Louisi
ana,
See PRACTICE IN EQUITY, 17, 18, 19, 20, 21, 22.
BONA FIDE PURCHASER.
See EQUITY, 24, 27, 28, 29, 30. TRUSTS, 1.
See APPEAL BOND. EQUITY, 8, 29, 30, 31. MUNICIPAL CORPORATIONS,
8, 9, 10, 11, 12, 13. PLEDGEE.
1. 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, and which 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, is a contract with the bondholders, and remains unaffected by
any subsequent legislation which seeks to impair or repeal its provi-
sions. Maenhaut v. The City of New Orleans,
1
2. Under the provisions of said act, the holders of consolidated bonds are
not entitled to priority of payment over other bondholders out of all
taxes raised on real estate.
Ib.
3. The bare fact that the consolidated bonds were older than bonds subse-
quently issued, gives their holders no advantage over the holders of
the bonds of later date.
Ib.
4. Persons who hold negotiable railroad bonds as collateral security for
the payment of debts due them by the railroad company, are bona
fide holders for value, and are entitled to enforce the payment of the
bonds as long as the debts for which they were hypothecated remain
unpaid. Allen v. The Dallas & Wichita Railroad Co.
5. Bonds, payable to bearer, issued by an incorporated company, con-
tained the following provision in relation to the payment of interest,
viz.: "With interest at the rate of ten per cent per annum, payable
semi-annually on the first days of January and July in each year, on
the presentation of the respective coupons hereto attached, both prin-
cipal and interest payable at the principal office of said company in
the city of New York." Held, that under this form of bond the cou-
pons might be sued without previous presentation for payment. War
ner v. The Rising Fawn Iron Co.,
514
6. Where the taxing power of the city was limited by the constitution, all
the holders of the bonds issued by the city were entitled to share pro
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