jumped on deck and got on the cabin roof, where | libelant. Clements, the cook and steward, was also examined, and his testimony accords in all substantial respects with the other witnesses called by the libelant. But they differ widely in one respect from the respondent's witnesses, as the latter assume that the collision would have been avoided if that change of course had not been made, whereas the libelant's witnesses testify to the effect that it was not made until the collision was inevitable, and the court is of the opinion that the latter theory is satisfactorily proved. Inferences from circumstantial facts may frequently amount to full proof of a given theory, and may even be strong enough to overcome the force and effect of direct testimony to the contrary, but the circumstances invoked in argument by the respondents in this case are not sufficiently persuasive and convincing to justify the court in adopting a conclusion directly opposed to the positive testimony of all the witnesses who were on the deck of the schooner just before and at the time the disaster occurred. Beyond doubt they must know what the circumstances were, and the record furnishes no sufficient reason to warrant the court in imputing to them willful falsehood. Decree of the Circuit Court reversed, and the cause remanded with directions to affirm the decree of the District Court. *THE STEAMER RIO GRANDE, Her [*178 Tackle, etc., The Ocean Tow-Boat Company, Claimant, Appt., Witnesses, it is true, were examined by the respondents, whose accounts of the circumstances preceding the collision differ in may respects from the statements made by the witnesses of the libelant, but their testimony is not of a character to warrant the court to impute willful false swearing to the witnesses who were on the deck of the schooner, and the court is of the opinion that it is scarcely possible to adopt (See S. C., "The Rio Grande," 19 Wall., 178–189.) the theory of the respondents without coming to the conclusion that the libelant's witnesses have committed willful perjury. Several theories are suggested which it is argued show that it is highly improbable that the collision would have occurred if the schooner had kept her course, as the libelant insists she Idid but it is clear that the schooner was sunk by a blow from the propeller, and in the opinion of the court the evidence to show that the schooner did keep her course until the collision was inevitable, is too strong to be overcome by any or all of the theories suggested in argument by the respondents. Most of the theories suggested by the respondents as tending to show that the schooner did not keep her course as assumed by the libelant, are based upon the eses timates of time and distance made by the witnesses who were on board the propeller, which, in the judgment of the court, are far too liberal and quite unreliable; as, if admitted to their full extent, they would show that the collision could not have occurred. Doubtless the helm of the propeller was put to starboard when the first torch-light was displayed on the schooner, but it is highly probable that the two vessels were much nearer together than is supposed by the witnesses, as it is evident if they 58*] *were two miles apart at that time and much change was made in her wheel, that the collision would have been avoided unless a counterchange was made in the wheel before the distance between the two vessels was overcome. Carefully examined, it will be seen that the testimony of the respondents does not show that the schooner changed her course but once after her signal lights were first seen, and that change is admitted by the witnesses of the v. WILLIAM OTIS et al. Jurisdiction as to amount. Where interest to the date of the decree is specifically allowed by the decree, it must be included with the principal in order to determine what the sum or value in dispute was at the time the appeal was taken and allowed; and if with such interest the amount of the decree is over $2,000, this court has jurisdiction. [No. 524.] Submitted Jan. 9, 1874. Decided Jan. 12, 1874. ed States for the District of Louisiana. The case is stated by the court. See, also report of the decision of the case upon the merits, 23 Wall., 458, 23 L. ed., 158. Messrs. P. Phillips and T. J. Semmes, for appellees: Where joint libels in rem are filed for wages of seamen and for supplies, which operate as a lien on a vessel, the claims for wages and supplies do not become joint, but the decree rendered in favor of each libelant for the sum due him is a several decree, and cannot be appealed from by libelant or claimant, unless the amount in dispute on each claim exceeds the sum of $2,000, which amount in dispute, as regards the claimant, is shown by the decree rendered in favor of the libelant." Rich v. Lambert, 12 How., 347; Oliver v. Alexander, 6 Pet., 143; Forgay v. Conrad, 6 How., 101. NOTE. Jurisdiction of U. S. Supreme Court depending on amount; interest cannot be added to give jurisdiction; how value of thing demanded may be shown; what cases reviewable without regard to sum in controversy-see note to Gordon v. Ogden. 7 L. ed. U. S. 592. Certiorari in United States courts-see note to Clark v. Hackett, 17 L. ed. U. S. 69. The vessel having been libeled and seized | and decreed that the claims contained in the in Mobile, was always subject to the decree ren- libels in this cause do not constitute such a dered on that libel (The Little Charles, 1 Brock, maritime lien as to give the court jurisdiction, 347), and any claim made for the vessel must be and the court entered a decree that the libel in considered with reference to that seizure. Thus each case be dismissed with costs. Immediate it is apparent that the amount in dispute be- application was made to the court by the claimtween the libelants and the vessel libeled, was ants for an order that the possession of the the amount claimed in the original libels in Ala- steamboat should be delivered to them by the bama, in which the maritime liens were enforced. Marshal, and the record shows that on the 12th And to the several amounts of those liens refer- of May, 1868, the motion was granted. Notice ence must be made to ascertain the amount in of appeal was immediately given by the libeldispute. The fact of the removal of the vessel, ants, and two days after the order was passed no bond having been given to represent the delivering the steamboat to the trustees named vessel while the libels were pending, to another in the application for the order, the appeal jurisdiction, cannot affect the right to hold the bonds were filed. During the pendency of the vessel nor enlarge the amount in dispute, nor several libels in the district court and before give the jurisdiction not already conferred. If the final decree, to wit: on the 10th of December, the vessel or its claimants could not appeal from 1867, the causes were consolidated by the court the Circuit Court in Alabama, no appeal from upon a written agreement being filed that the proceedings to execute that decree will lie from consolidation should not prejudice the officers the decree of the Circuit Court in Louisiana, of the court in respect to costs. although the vessel may have been removed from one jurisdiction to another, or have changed owners. The removal or change of ownership cannot affect the jurisdiction of the court. But if the amount claimed in the libel in Louisiana is to govern the appellate jurisdiction, then the claim of Wm. Otis alone, under that ruling, will be subject to appeal, all the others being for sums below the jurisdiction of the Supreme Court. Mr. David C. Labatt, for appellant: The first objection to the motion to dismiss on the ground chat the court has no jurisdiction because the amount in dispute is insufficient, is, that the appeal is not from a decree rendered by the Circuit Court in Alabama, but from a decree rendered Mar. 1, 1873, by the Circuit Court in Louisiana. Hence, the question is, whether, on Mar. 1, 1873, the amount in question exceeded $2,000. As to Wm. Otis and Lyons and Keyland, it is a mere matter of computation to show that such was the case. Interest, when claimed in the libel and awarded by the decree, must be included to ascertain the amount in dispute. Udall v. The Ohio, 17 How. 17, 15 L. ed. 42; The Patapsco, 12 Wall., 451, 20 L. ed. 457. It is also submitted that the costs awarded by the decree in Louisiana specifically, and having been specifically claimed by the libelants, are not embraced within the exception of the law in computing the matter in dispute. This libel was filed for $1,767 costs, in addition to the other sums, and the fact that these costs were due was denied. See Lee v. Watson, 1 Wall., 337, 17 L. ed. 557; Wilson v. Daniel, 3 Dall., 401; Shields v. Thomas, 17 How., 3. Mr. Justice Clifford delivered the opinion of the court: Separate libels were filed by the appellees, in the District Court of the United States for the Southern District of Alabama, against the steamboat Rio Grande, to enforce the payment of certain claims made by those parties against the steamboat for materials furnished for repairs and for necessary supplies, which it is alleged constituted a maritime lien upon the steamboat. Process was issued and served and the parties appeared and were heard, and the decree states that the court ordered, adjudged On the 8th of June, 1871, the same material men filed a libel in the District Court of the United States for the District of Louisiana, against the same steamboat, to enforce the mari time lien for the same claims, in which they alleged that during the pendency of the said admiralty proceedings in the District [*188 Court for the Southern District of Alabama, the court there ordered the Marshal to deliver the possession of the same, as in the order previously described, and that the order was executed as made, notwithstanding the libelants appealed and gave appeal bonds operating as a supersedeas within the period allowed by law for perfecting such appeals. Process was issued and served and the appellants appeared as claimants and filed an answer. Testimony was taken, and the parties having been heard, the court entered a decree dismissing the libel, and the libelants appealed to the circuit court, where the parties were again heard, and the circuit court reversed the decree of the district court and entered a decree that the libelants do have and recover from the steamboat the following sums, to wit: William Otis, $1,508; Lyons & Keyland, $1,411.83; Joseph Hastings, $83.75; R. D. Port & Co., $121.25; G. B. & C. B. Gwin & Co., $713.14, with eight per cent. interest on said different amounts, from the 1st of August, 1867, until paid, and costs of suit, as therein specified. By the record it appears that the decree was entered on the first day of March, 1873, and of course five years and seven months' interest must be added to each of the several sums awarded in the decree. Whereupon the respondents appealed to this court. Two grounds for dismissing the appeal are set forth in the motion under consideration: (1) That the transcript does not contain a true copy of the record and of all the proceedings in the case, under the hand and seal of the circuit court. (2) That this court has no jurisdiction in the case, as the amount in dispute is less than $2,000. 1. Probably the stipulation filed in the case allowing the appellants to complete and perfect the transcript in the case, may be regarded as an answer to the first ground of the motion, but if not, it is quite clear that the certificate of the clerk of the court must be regarded as prima facie evidence that the matter of fact al leged in the motion is not well founded. De-, upon while in transitu, as herein provided for, ficiencies, if any, may be supplied by certiorari. that is to say," etc. 189*] *2. Nor can the motion be sustained The period of the notice before the time of for the other reason set forth, as it is certain performance in each case was then prescribed, that the decree against the appellants here in being twenty-five days for 300,000 pounds, and favor of two of the respective appellees exceeds increasing according to the increased quantity the sum of $2,000. True, the sums recovered by of the stores specified. On the 4th of June, 1865, the other three appellees respectively were not an officer of the Government advised Bulkley sufficient to give this court jurisdiction, but the that transportation from Fort Leavenworth to motion is to dismiss the appeal, which must be the extent of 1,700,000 pounds was needed, and denied, as the decree in favor of the two libel- inquired whether, as he had been notified alants first named in the decree is, as it respects ready to the extent of his contract, he was preeach of those, greater than $2,000, when the pared to transport that additional quantity of interest allowed by the circuit court to the date freight. He assented. This enlarged so far the of the decree is included with the principal. maximum quantity covered by the contract. The Patapsco, 12 Wall., 451, 20 L. ed. 457. Interest to that date being specifically allowed by the decree must be included with the principal in order to determine what "the sum or value in dispute was" at the time the appeal was taken and allowed. Motion to dismiss denied. HENRY S. BULKLEY, Appt., บ. UNITED STATES. *The Court of Claims found, that of the [*39 freights notified under the 4th article, the United States did not need transportation for 1,690,074 pounds and to that extent, therefore, did not offer any to him. It was further found that Bulkley, on his part, was prepared and ready to transport all such freights, and so notified the proper officers of the United States. The court held as a conclusion of law that he could not recover the profits he would have made had the freights withheld been furnished to him, but that the United States having thrown upon him needless expense by requiring him to make ready for the transportation of freights which they (See S. C., 19 Wall., 37-41.) Government contractor-damages recoverable | did not in the end require to be transported, he by. 1. Where a government contractor agreed to transport supplies furnished for that purpose, and received notice from the Government that certain supplies were ready for him, and made prepara tions to transport them, but the supplies were not furnished by the Government, held, that he could not recover the profits he would have made had the freights withheld been furnished to him. 2. But the United States having thrown upon him needless expense by requiring him to make ready for the transportation of freights which it did not in the end require to be transported, he was en titled to recover for the expense to which he was Argued Dec. 23, 1873. was entitled to recover for the expense to which he was thus subjected. Bulkley, insisting upon profits as the measure of his damages, declined to furnish proof of the expense incurred. The Court of Claims thereupon dismissed his petition, and he has removed the case to this court for review. Here the claim for profits, as the rule of compensation, is renewed. It is insisted that every notice was a specific agreement within the original contract on the part of the Government that the freights specified should be furnished, and that the United States are liable accordingly. We think this theory cannot be maintained, Decided Jan. 19, 1874. and that the Court of Claims came to the right conclusion. PPEAL from the Court of Claims. A Mr. C. H. Hill, Asst. Atty-Gen., for appellee. Mr. Justice Swayne delivered the opinion of the court: This is an appeal from the court of claims. The result of the case here depends upon the construction to be given to the fourth article of the contract between the parties. The contract was for the transportation of army supplies in the West. Bulkley agreed to transport any quantity of such supplies-between 100,000 and 10,000,000 pounds that might be turned over to him for that purpose, from April to September, 1865. The fourth article provided— "That, in order that the said Henry S. Bulkley shall be in readiness to meet the demands that shall be made upon him for transportation under this contract and agreement, due notice shall be given him or his agent of the quantity and kind of stores to be transported at any one time, at what points the stores will be ready for delivery to him, and the place of their destination, subject to such changes as shall be decided Outside of the fourth article there is nothing in the contract which gives the slightest support to the claim. The other stipulations are that Bulkley should transport in the manner provided, and within the times mentioned, all the freights between the maximum and minimum quantities specified that should be offered to him. If none had oeen offered he would certainly have had no claim upon the Government for anything. The fourth article provides that in order that he might be in readiness to meet the demands of the Government, due notice should be given him of the time, place, quantity and kind of stores to be transported and their place of destination. There is still no agreement to furnish such freights, or any freights. [*40 The effect of the notice was to signify a purpose on the part of the Government, and that purpose was liable to be changed at any time before it was executed. Indeed, it is expressly stipulated that it might be altered while the stores were in transitu, and there is no limit prescribed as to the extent or character of the changes that might be made. If, the day after the transportation commenced, the wagons had been ordered back to their place of departure, 'unloaded, and the transportation abandoned, there would have been no breach of the contract. The change would have been within its letter and meaning. A multo fortiori might such a change be made and carried out before the transportation began. If it were intended that after the notices were given the Government should be bound as claimed, that intent should have been expressed in the contract. It is neither expressed nor implied. It was doubtless known to the officer who entered into the contract on behalf of the United States, that in the exigencies of the public service, more or less transportation, or none, might be required at any given time or place contrary to what had been anticipated and intended down to the last moment. Hence, while it was stipulated that actual transportation should be paid for at the rates specified, an unfettered discretion was reserved to the Government as to everything beyond that point. It is to be presumed that with this view the contract was framed as we find it. It commits the Government to nothing but to pay for service rendered. It is partly printed and partly written, and is according to the formula used by the Government in all such cases. In making ready to meet the requirements of the notices, Bulkley was subjected to the loss of time, to trouble and expense. He is entitled to be paid accordingly. Such is the implication of the contract, and what is implied in a contract deed, will or statute, is as effectual as what is expressed. U. S. v. Babbit, 1 Black, 61, 17 L. ed. 96. Human affairs are largely conducted upon the principle of implications. 41] In relation to the large amount of stores transported there is no complaint. It is to be presumed that everything in relation to them has been satisfactorily adjusted. This claim is confined to stores not transported. Although we concur entirely with the Court of Claims in their view of the case, yet as the appellant acted in that court upon a mistaken notion of his rights, the judgment will be reversed and the cause remanded that he may have another opportunity to produce the proof which he before declined to give. If he shall again refuse, the petition must be finally dismissed. JONATHAN CREWS, Piff. in Err., v. ISAAC N. BREWER. (See S. C., 19 Wall., 70-72.) Trial by court-questions open for review-report of the evidence. 1. Where a jury is waived, and the finding of the circuit court is general and there is no authorized statement of facts in the record, no review of the questions of law can be had in this court, except such as arise from the rulings of the court made in the progress of the trial. 2. Questions of fact will not be reviewed by this court in common law actions, nor can the questions of law presented in such cases be re-examined here, unless the matters of fact out of which they arise are, in some authorized form, given in the record. 3. A mere report of the evidence is not sufficient as it belongs to the circuit court to find the facts; and in order to do that, the circuit court must weigh the evidence and draw the inferences of fact from the whole evidence given in the case. [No. 670.] Submitted Dec. 22, 1873. Decided Jan. 19, 1874. N ERROR to the Circuit Court of the United The case is stated by the court. Messrs. Albert Pike, W. B. Thompson and Jno. Hallum, for plaintiff in error. Mr. Gustavus Koerner, for defendant in error. Mr. Justice Clifford delivered the opinion of the court: Complaint was made by the plaintiff that the defendant, *at the time and place men- [*71 tioned in the declaration, broke and entered the plaintiff's close therein described and ejected him from the premises, and that the defendant still unlawfully withholds the possession of the same from the plaintiff; and the plaintiff avers that he claims title to the land in fee, and that the same is worth $5,000. Service was made and the defendant appeared and pleaded that he was not guilty of unlawfully withholding the premises claimed by the plaintiff in the manner and form as alleged in the declaration. Issue was joined by the plaintiff, but the parties subsequently appeared and waived a jury and submitted the issue to the court. Evidence was introduced on both sides, and the record states that "The court, being sufficiently advised, finds the issue for the defendant, that he is not guilty of unlawfully withholding from the plaintiff the possession of the premises," as alleged in the declaration. A motion for a new trial was filed by the plaintiff, which was overruled by the court, and the court entered judgment for the defendant and that he recover the costs of suit. Leave was granted to the plaintiff to file a bill of exceptions within sixty days, and within that period he filed the paper exhibited in the transcript, which is denominated the bill of exceptions. Evidence, consisting of a certain patent and certain original deeds, and of certain depositions and a certain record and other documents, was introduced by the plaintiff. Countervailing evidence was then introduced by the defendant, consisting of oral testimony and a copy of a deed, all of which, together with that introduced by the plaintiff, is set forth at large in the instrument called the bill of exceptions. All of the evidence was introduced without objection and, of course, was properly admitted. Instructions were asked by the plaintiff at the close of the trial, which the court refused to adopt, and stated what the conclusions of the court were as matter of law, in view of the whole evidence reported in the bill of exceptions. To each and all of which propositions of law the plaintiff then and there excepted and his exceptions were duly allowed. Dissatisfied with the judgment the plaintiff sued out a writ of error and removed the cause into this [*72 court. Error is assigned in this court controverting each and every one of the propositions of law decided by the circuit court. Suffice it to say, that the finding of the circuit is general, and that there is no authorized statement of facts in the record. Under such circumstances our decision is, that no review of the questions of law can be had in this court, except such as arise from the rulings of the court made in the progress of the trial, as it would impose upon this court the duty of hearing the whole case, law and fact, as on an appeal in chancery or in an admiralty suit, which would operate as a repeal of the provision in 63 cases may be tried and determined by the circuit court; and would also violate that clause of the 22d section of the Judiciary Act which prohibits this court from reversing any judgment "for any error of fact." 1 Stat. at L., 85; Ins. Co. v. Folsom, 18 Wall., 237, 21 L. ed. 827; Dirst v. Morris, 14 Wall., 490, 20 L. ed. 723; Bassett v. U. S., 9 Wall., 40, 19 L. ed. 549; Miller v. Ins. Co. 12 Wall., 297, 20 L. ed. 400. Questions of fact will not be reviewed by this court in common law actions, nor can the questions of law presented in such cases be reexamined here unless the matters of fact out of which they arise are, in some authorized form, given in the record; to which it may be added, as applicable to cases tried by the court, that a mere report of the evidence is not sufficient, as it belongs to the circuit court to find the facts, and in order to do that the circuit court must weigh the evidence and draw the inferences of fact from the whole evidence given in the case. Tancred v. Christy, 12 Mees. & W., 323. Judgment affirmed. Messrs. R. Stockett Matthews and W. S. Waters, for appellant. Mr. Justice Miller delivered the opinion of the court: this 27th day of May, A. D. 1872, adjudged and ordered that the decree of the District Court be, and the same is hereby affirmed, with costs." Whatever may be the merit of the objection on which the motion is founded, namely: that the above decree is not for an amount exceeding $2,000, we are of opinion that there is not a final decree from which an appeal can be taken to this court, and that this appeal must for that reason be dismissed. An appeal in admiralty has the effect to supersede and vacate the decree from which it is taken. A new trial, completely and entirely new, with other testimony and other pleadings, if necessary or if asked for, is contemplateda trial in which the judgment of the court below is regarded as though it had never been rendered. A new decree is to be made in the Circuit Court. This decree is to be enforced by the order of that court, and the record remains there. The case is not sent back to the District Court for executing the decree, or for any other proceeding whatever, and that court has nothing further to do with it. The decree should, *therefore, be complete within itself. In [*75 the case before us, the decree fixes no sum which the successful party is to recover. If any process is to be issued to enforce it, the clerk must, from the record of the District Court, ascertain the amount, or he can issue no such process. But this is the duty of the court, and not the clerk. It may be said that it is, in such case as this, a mere matter of computation, and in some cases it may be. But the one before us shows that it is not always so, for the only question argued by counsel on this motion is, whether the judgment affirmed is for $2,000 or $2,100-for the amount after the remittitur or before. No final decree of a court which enforces its own judgments ought to be left in such condition that the record of another court is the only evidence of the amount recovered by the successful party. An order affirming a decree in another court is neither in express terms nor by necessary implication a judgment or decree for the amount of the judgment or decree in that court. The costs of the lower court, and the interest on its judgment to the date of the decree or judgment on appeal, are to be added to it, and, though they may be computed by the clerk, they should have the judicial consideration of the court. According to these views, there is no final decree such as the law intends in the Circuit Court in this case, and the appeal is dismissed. Dissenting, Mr. Justice Clifford. In this case a motion is made to dismiss the appeal for want of jurisdiction. It is a suit in admiralty, in which the successful party claimed $2,000 and recovered judgment in the District *SOLOMON G. KITCHEN et al., Appts., [*254 บ. WILLIAM C. RAYBURN et al. (See S. C., 19 Wll., 254-263.) Court for $2,100. Plaintiff then remitted $100 of this judgment, and the other side appealed to the Circuit Court, where an order was entered affirming the judgment below. The order made in the Circuit Court from which this appeal is Equity will not relieve parties to a fraud, or 74*] taken is in the following words: *Headnotes by Mr. Justice MILLER. "It is, NOTE. What is "final decree" or judgment of state or other court, from which appeal lies-see notes, 5 L. ed. U. S. 302; 2 C. C. A. 379; 17 C. C. A. 238; 28 C. C. A. 482. deceit. 1. Where the complainants do not come into court with clean hands, and are seeking the bene NOTE. Whether when parties are in pari delicto or particeps criminis equity will relieve-see note 14 L. ed. U. S. 330, and note, 17 L. R. A. 113. |