JOHN MCNULTY, PLAINTIFF IN ERRor, v. John BattY AND OTHERS.
MR. WALKER, of counsel for the defendants in error, moved the court to direct the clerk to what court the mandate, or other process prescribed by the forty-third rule of court, should be addressed. On consideration whereof, it is now here ordered by the court, that the clerk do not issue any mandate or other process in this case, but only a certified copy of the judgment this day rendered in this cause.
SYLVESTER B. PRESTON AND OTHERS, PLAINTIFFS IN ERROR, v. CHARLES BRACKEN.
MR. WALKER, of counsel for the defendant in error, moved the court to direct the clerk to what court the mandate, or other process prescribed by the forty-third rule of court, should be addressed. On consideration whereof, it is now here ordered by the court, that the clerk do not issue any mandate or other process in this case, but only a certified copy of the judgment this day rendered in this cause.
JESSE HOYT, PLAINTIFF IN ERROR, v. THE UNITED STATES.
(See p. 109.)
MR. ATTORNEY-GENERAL CRITTENDEN moved the court to dismiss this cause for irregularity in the bill of exceptions, which was opposed by Messrs. Evans and Walker, of counsel for the plaintiff in error. Whereupon this court, not being now here sufficiently advised of and concerning what order to render in the premises, took time to consider.
On consideration of the motion made in this cause by Mr. Attorney-General on the 6th instant, and of the arguments of counsel thereupon had, it is now here ordered by the court, that the whole case be argued upon the bill of exceptions.
SEE COMMERCIAL LAW.
BOUNDARIES OF STATES.
The report of the commissioners appointed by this court in 7 Howard, 660, to run and mark the line dividing the States of Missouri and Iowa, adopted and confirmed, and the boundary line finally established. Missouri v. Iowa, 1. CHANCERY.
1. In 1803, Collins obtained from the military commandant at Mobile a permit to take possession of a lot of ground near that place, and made a contract with William E. Kennedy that the latter should improve it, so as to lay the foundation for a perfect title, and then they were to divide the lot equally. Hallett et al. v. Collins, 174.
2. Kennedy's ownership of a hostile claim, whether held then or acquired subsequently, enured to the joint benefit of himself and Collins; and when Kennedy obtained a confirmation of his title under the acts of the commissioners appointed under an act of Congress, he became a trustee for Collins to the extent of one half of the lot. Ibid.
3. The deeds afterwards made by Kennedy, under the circumstances of the case, did not destroy this trust; but the assignee, having full knowledge of the trust, must be held bound to comply with it. Ibid.
4. This assignee obtained releases, for an inadequate consideration, from the heirs of Collins, who had just come of age, were poor, and ignorant of their rights. These releases were void. Ibid.
5. Before Kennedy conveyed to the assignee just spoken of, he had conveyed the property to another person who held it as a security for a debt; and who, when the debt was paid, transferred it to the same assignee to whom Kennedy had conveyed it. This added no strength to the title, but only gave to this assignee a claim to be reimbursed for the money which he paid to extinguish the debt. Ibid.
6. The absence of the complainant from the State, and the late discovery of the fraud, account for the delay and apparent laches in prosecuting his claim. Ibid.
COLLECTORS OF THE CUSTOMS.
1. When Treasury transcripts are offered in evidence under the act of March 3, 1797, (1 Stat. at Large, 512,) although they are not evidence of the indebtedness of the defendant, as to money which comes into his hands out of the regular course of official duty, yet they are so when they arise out of the official transactions of a collector with the Treasury, and are substantial copies of his quarterly returns, rendered in pursuance of law and the instructions of the Secretary. Hoyt v. United States, 109.
2. These transcripts need not contain the particular items in each quarterly return; it is sufficient if they state the aggregate amount of bonds and duties accruing within the quarter, and refer to an abstract containing the particular items. Ibid.
3. This rule can work no surprise upon the defendant, because every item which is litigated must have been previously presented to the accounting officers of the Treasury, and been by them rejected. The items must be known therefore to the defendant. Ibid.
COLLECTORS OF THE CUSTOMS (Continued).
4. The acts of 1802 (2 Stat. at Large, 172, § 3) and March, 1822 (3 Stat. at
Large, 694, 695, 3, 7), limit the annual compensation of the collector to a
certain sum.
This limitation includes the fees as well as commission. Itid.
5. The act of 1838 (5 Stat. at Large, 264) provides that the collector shall re-
turn an account under oath of these fees to the Treasury, and the act also
limits the compensation. The fees, therefore, cannot be claimed in addition
to the compensation. In the case in question, the time of service of the col-
lector was whilst this act was in force, as it was extended by the acts of 1839,
1840, and 1841, and to 2d March of that year. Ibid.
6. The acts above mentioned do not deprive the collector of his share in fines,
penalties, and forfeitures. He is allowed to claim this share in addition to
his annual compensation. Ibid.
7. But this share does not include a claim to a part of the duties upon merchan-
dise which has been seized, and in order to regain the possession of which the
owner has given a bond for the payment or securities of the duties, as well as
for the appraised value of the merchandise itself. In case of condemnation,
the collector is entitled to a share of the proceeds of the merchandise, the
thing forfeited, but not to a share of the duties also. These are secured for
the exclusive benefit of the government. Ibid.
8. Nor is a collector entitled to a commission for accepting and paying drafts
drawn upon him by the Treasury Department. The act of 1799 made it his
duty to receive all money paid for duties and pay it over upon the order of
the officer authorized to direct the payment; and the eighteenth section of
the act of 1822, and the act of 1839 (5 Stat. at Large, 349), contain limita-
tions which forbid an allowance beyond the compensation prescribed by law.
9. The collector does not appear, by the evidence, to have been charged twice
with the amount of unascertained duties at the Treasury Department, and,
therefore, the court properly refused to submit the point to the jury. Ibid.
10. In an action brought against a collector for the return of duties paid under
protest, it was not competent for him to give in evidence a letter from the
Secretary of the Treasury, to show that the removal of one of the merchant
appraisers was done by his order. Greely v. Thompson, 225.
11. The legality of such removal as to third persons was valid or not, according
as the collector possessed legal power to make it on the facts of the case.
Courts must look to the laws themselves, and not to the constructions placed
upon them by the heads of Departments, although these are entitled to great
respect, and will always be duly weighed by the court. Ibid.
12. Under the various acts of Congress providing for the payment of duties, the
time of procurement is the true time for fixing the value, when the goods are
manufactured or procured otherwise than by purchase, and are not o an
origin foreign to the country whence they are imported hither. The proviso
in the fifth section of the act of 1823 (3 Stat. at Large, 732), relates alto-
gether to this latter class of goods. Ibid.
13. The penalty provided in the act of 1842 related only to goods purchased, and
not to goods procured otherwise than by purchase. Ibid.
14. The regular appraisers and the merchant appraisers who may be detailed for
the duty must, each one, personally inspect and examine the goods. It will
not do for one to report to the other that the goods are "merchantable,” and
then to fix the value according to a general knowledge of the value of mer-
chantable goods of that description. Ibid.
15. The removal, by the collector, of one of the merchant appraisers, because he
wished time given to obtain more evidence from England, and the substitu-
tion of another, was irregular, and made the whole appraisement invalid.
These appraisers are temporary umpires between the permanent appraisers
and the importers, and after entering on their duties could not be removed,
either by the collector or Secretary, without some grave public ground be-
yond a mere difference of opinion. Ibid.
16. Where the collector insisted upon either having the goods appraised at the
value at the time of shipment, the consequence of which would have been an
addition of so much to the invoice price as to subject the importer to a pen-
alty; or to allow the importer voluntarily to make the addition to the invoice
price and so escape the penalty, and the importer chose the latter course, this
was not such a voluntary payment of duties on his part as to debar him from
COLLECTORS OF THE CUSTOMS (Continued).
bringing an action against the collector for the recovery of the excess thus
illegally exacted. Marwell v. Griswold, 242.
1. It was a proper case for contribution in general average for the loss of a vessel
where there was an imminent peril of being driven on a rocky and danger-
ous part of the coast, when the vessel would have been inevitably wrecked,
with loss of ship, cargo, and crew, and this immediate peril was avoided by
voluntarily stranding the vessel on a less rocky and dangerous part of the
coast, whereby the cargo and crew were saved uninjured. Barnard v. Adums,
2. The cases upon this subject examined.
3. Where the cargo was taken out of the stranded vessel, placed in another one,
and the voyage thus continued to the home port, the contribution should be
assessed on the value of the cargo at the home port. Ibid.
4 The crew were entitled to wages after the ship was stranded, while they were
employed in the saving of the cargo. Ibid.
5. A commission of two and one half per cent. was properly allowed for collect-
ing the general average. It rests upon the usage and custom of merchants
and average brokers. Ibid.
6. The following guaranty, viz. "I hereby guaranty the payment of any purchases
of bagging and rope which Thomas Barrett may have occasion to make be-
tween this and the 1st of December next," extends the liability of the guar-
antor to purchases upon a reasonable credit, made anterior to the 1st of De-
cember, although the time of payment was not to arrive until after that day.
Louisville Manufacturing Company v. Welch, 461.
7. The vendor was not bound to give immediate notice to the guarantor of the
amount furnished, or the sum of money for which the guarantor was held
responsible. It was sufficient to give this notice within a reasonable time
after the transactions were closed, and the question what was a reasonable
time was a question of fact for the jury. Ibid.
8. If the principal debtor be insolvent at the time when the payment becomes
due, even this notice is not necessary, unless some damage or loss can be
shown to have accrued to the guarantor in consequence of his not receiving
such a notice. And in no instance, in case of a guaranty, will the guarantor
be exempt from liability for want of the notice, unless loss or damage is
shown to have accrued as a consequence. Ibid.
9. But when a party intends to avail himself of the guaranty by making sales on
the faith of it to the person to whom it is given, such party must give notice,
within a reasonable time, to the guarantor, of his acceptance and intention to
act on it. Tid.
10. Where the guarantor took defence upon the ground that he had before notice
given up securities belonging to the receiver of the guaranty which would
have made him whole, the time of his doing this should have been given to
the jury as an essential ingredient for their judgment upon the question
whether or not he had received reasonable notice of his liability. Ibid.
11. The admission of the guarantor, when called upon for payment, did not con-
clusively bind him as a matter of law, because it may not have been made
with a full knowledge of all the facts in the case. It was therefore properly
left to the jury to decide whether so made or not. Ibid.
12. The following are the rules which ought to govern
each other. St. John v. Paine et al., 557.
13. Of Sailing Vessels. A vessel that has the wind free, or sailing before or with
the wind, must get out of the way of the vessel that is close-hauled, or sail-
ing by or against it; and the vessel on the starboard tack has a right to keep
her course, and the one on the larboard tack must give way, or be answerable
for the consequences. Ibid.
14. So, when two vessels are approaching each other, both having the wind free,
and consequently the power of readily controlling their movements, the ves-
sel on the larboard tack must give way, and each pass to the right. The
same rule governs vessels sailing on the wind, and approaching each other,
when it is doubtful which is to windward. Ibid.
15. But if the vessel on the larboard tack is so far to windward that, if both per-
sist in their course, the other will strike her on the lee side, abaft the beam or
VOL. X.
55
COMMERCIAL LAW (Continued)
near the stern, in that case the vessel on the starboard tack should give way,
as she can do so with greater facility and less loss of time and distance than
the other. Ibid.
16. When vessels are crossing each other in opposite directions, and there is the
least doubt of their going clear, the vessel on the starboard rack should per-
severe in her course, while that on the larboard tack should bear up or keep
away before the wind. Ibid.
17. The rules have their exceptions in extreme cases, depending upon the special
circumstances of the case, and in respect to which no general rule can be laid
down or applied. Either vessel may find herself in a position at the time
when it would be impossible to conform to them, without certain peril to her-
self or a collision with the approaching vessel. Under such circumstances,
the master must necessarily be thrown upon the resources of his own judg-
ment and skill in extricating his own vessel, as well as the vessel approaching,
from the impending peril. These cases cannot be anticipated, and therefore
cannot be provided for by any fixed regulation. They can only be examined,
and the management of the vessel approved or condemned, as the case may
arise. Ibid.
18. Of Steam-Vessels meeting Sailing Vessels. - Steam-vessels 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 re-
quired to do under similar circumstances. Their obligation extends still
farther, because they possess a power to avoid the collision not belonging to
sailing vessels, even with a free wind, the master having the steamer under
his command, both by altering the helm and by stopping the engines. As a
general rule, therefore, when meeting a sailing vessel, whether close-hauled or
with the wind free, the latter has a right to keep her course, and it is the duty
of the steamer to adopt such precautions as will avoid her. Ibid.
19. Of Steamers meeting each other. It is the duty of each vessel to put the helm
a-port.
20. Of keeping Watch. The pilot-house of a steamer is not the proper place at
which to station a watch at night. A competent and vigilant look-out sta-
tioned at the forward part of the vessel, and in a position best adapted to
descry vessels approaching at the earliest moment, is indispensable to exempt
the steamboat from blame, in case of accident in the night-time, while navi-
gating waters on which it is accustomed to meet other craft. Ibid.
21. The owner is responsible for damage resulting not only from want of care and
attention on the part of the persons in charge of the vessel, but also from the
want of proper knowledge and skill to enable them to manage her according
to established nautical rules. Ibid.
22. Where a sailing vessel was descending the Hudson River with but a trifling
wind, and chiefly by the force of the current, and came into collision with a
steamer ascending the river, the question in the case was, whether or not the
accident happened, notwithstanding every proper precautionary measure had
been taken on the part of the steamboat to pass the sloop in safety, in con-
sequence of an improper movement of that vessel by the mismanagement
and unskilfulness of the persons in charge of her. If the sailing vessel kept
her course, it was the duty of the steamboat to avoid her. The evidence show-
ing that the steamer did not take proper precautionary measures to avoid
the sloop while endeavoring to pass her, the responsibility of the collision
must rest upon the steamer. Newton v. Stebbins, 586.
23. The steamer was in fault for not slackening her speed, on meeting a fleet of
sailing vessels in a narrow channel of the river, she then going at the rate of
from eight to ten knots the hour. She was also in fault, in not having a
proper look-out at the forward part of the vessel, there being no one but the
man at the wheel on deck.
1. In 1836 the legislature of Arkansas chartered a bank, the whole of the capital
of which belonged to the State, and the president and directors of which were
appointed by the General Assembly. Woodruff v. Trapnall, 190.
2. The twenty eighth section provided," that the bills and notes of said institu-
tion shall be received in all pay ments of debts due to the State of Arkansas."
Ibid.
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