The Cordillera.

THIS was a libel in rem, filed in the District Court, against the ship Cordillera, to recover damages for the loss of two tierces of lard, which fell from the slings while they were being hoisted into the ship, by a tackle, from a lighter. The District Court decreed for the libellants, and the claimants appealed to this Court.

Charles Donohue and Oscar Frisbie, for the libellants.

Robert D. Benedict, for the claimants.

NELSON, J. The ship insists that the loss, in this case, occurred by the mismanagement of the lightermen, in putting the tierces into the slings, and, also, in starting the horses which worked the tackle, while they were thus imperfectly slung. The libellants insist, that the loss happened after the tierces had passed into the possession and control of the ship. The case resulted in a difference, both as to the facts and the usage, in hoisting a cargo from the lighter to the ship, between the lightermen and the stevedores, the lightermen insisting that their duty was performed when the tierces were properly placed on the slings and hooked to the tackle, and the stevedores insisting that it was performed only when the tierces reached the railing of the ship and were ready to be taken. from the tackle to the deck. The stevedores are in the service of the vessel, which is responsible to the shipper for the damage done by them to his goods in putting them on board. In this case, the apparatus by which the tierces were hoisted from the lighter, including the horses, belonged either to the ship or to the stevedores, which, as I infer from the evidence, is according to the general usage. I am inclined to think, that when, under these circumstances, cargo is to be delivered from the lighter at the side of the ship, the responsibility of the lightermen ceases, as a general rule, when the cargo is properly placed on the slings and hooked to the tackle; and that the duty of the ship begins with the hoisting of it to the deck of the ship. It is then in the possession of the appara

The Matilda A. Lewis.

tus of the ship, or the stevedores, and under their control and direction.

It is, however, insisted, on the part of the claimants, that, in this particular case, the master of the lighter gave the order to the horses to move before the tierces were properly secured in the slings. But this is disputed, and the evidence is conflicting. The Court below charged the ship, and, in my view, the proofs fairly warranted the finding.

Decree affirmed.

THE MATILDA A. LEWIS.

The order of the Secretary of War, of the 13th of May, 1863, directing the commanders of departments to prohibit the purchase and sale of horses, mules and live stock intended for exportation, and to cause the value of the same to be appraised, and the articles to be reported to the QuartermasterGeneral, and to be taken and appropriated to the use of the Government, and the order of the Secretary of the Treasury, of the 19th of May, 1863, to the Collectors of Customs, directing those officers to refuse clearances for the exportation of horses, mules and live stock, and to cause the detention of all animals attempted to be exported in violation of such orders, and to report the detention to the commander of the nearest military district, for his action, in pursuance of such order of the Secretary of War, were invalid, as not be. ing authorized by any Act of Congress.

Under said orders, live fowls were not embraced within the term "live stock." Where live fowls were put on board of a vessel, at New York, for exportation to Havana, and three bills of lading were signed for them, one of which was retained by the master of the vessel, and two of which were delivered to the consignor, and forwarded to the consignee, who made an advance thereon, and afterwards the fowls were seized by the Collector of Customs, under said orders, and removed from the vessel, and the bill of lading in the hands of the master was cancelled by the consignor: Held, in action by the consignee against the vessel, on the two bills of lading, to recover the amount of such advance, because of the non-delivery of the fowls at Havana, that the vessel was liable.

(Before NELSON, J., Southern District of New York, November 19th, 1867.)

This was a libel in rem, filed in the District Court, by

The Matilda A. Lewis.

Philip E. Desvernine and Anthony Desvernine against the barque Matilda A. Lewis, to recover the amount of an advance made by them to one C. Glass, on the bills of lading of a shipment of seventy-four coops of live fowls, made by Glass, by that vessel, from New York to Havana, on the 6th of October, 1863. The District Court dismissed the libel, and the libellants appealed to this Court.

Robert D. Benedict, for the libellants.

Charles Donohue, for the claimants.

NELSON, J. The main defence set up, in this case, is, that the shipment was illegal, and the contract arising out of the bills of lading void. It appears, from the proofs, that the Secretary of War issued an order, on the 13th of May, 1863, to the several commanders of departments, reciting, that information had been received at the department, that sundry persons were purchasing horses and mules, within the United States, for exportation, contrary to the Executive order of November, 1862, and, to the end that, during the war, the military resources of the Government should not be withdrawn from the country, directing the commanders of departments to prohibit the purchase and sale of horses, mules and live. stock intended for exportation, and to cause the value of the same to be appraised, and the articles to be reported to the Quartermaster-General, and to be taken and appropriated to the use of the Government. The claims against the Government were to be adjusted by the Quartermaster-General. On the 19th of the same month, the Secretary of the Treasury issued an order to the Collectors of Customs, referring to the above orders, and directing those officers to refuse clearances for the exportation of horses, mules and live stock, and to cause the detention of all animals attempted to be exported in violation of the orders, and to report the detention to the commander of the nearest military district, for his action, in pursuance of the order of the Secretary of War. The fowls

The Matilda A. Lewis.

in question were seized by the Collector of the port of New York, under the orders above cited. The goods had been put on board, bills of lading had been given, and the vessel had cleared, before the seizure of the vessel and the fowls. Two of the bills of lading had also been forwarded to the consignees of the goods, and the advance in question made by the agent of the consignees. After the seizure, the fowls were taken from the vessel, by an arrangement with the consignor and the custom-house officers, and the vessel was allowed to proceed on her voyage. The consignor cancelled the bill of lading in the hands of the master. The other two bills of lading had already been sent to the consignees, with advices of the advance made by their agent.

It is quite clear, that the defence to the claim for the advance on the bills of lading, and for the non-delivery of the goods at the port of destination, must rest on the validity of these orders. For, I agree that, if they can be upheld, and if the fowls are embraced within the term "live stock," the contract of shipment was illegal, and cannot be the foundation of a suit. (Abbott on Shipping, part 4, ch. 13; and see Evans v. Hutton, 6 Jurist, part 1, 1042.) There is great difficulty, however, in upholding them. No Act of Congress has been referred to, nor have I found any, authorizing them. They amount, on most mitigated construction that can be given to them, to an entire prohibition of the commerce of the country in the articles of horses, mules, cattle and sheep, all of which are confessedly within the scope of the orders—a commerce made lawful by our navigation laws and by treaty stipu lations. This trade is absolutely suspended indefinitely; and, not only this, but the Government, in the mean time, is made the general purchaser of all this description of property destined to a foreign market.

Moreover, if the construction given to the orders by the custom-house officers can be maintained, then I do not see but that all the domestic animals of the United States fell within the prohibition, and were taken out of the foreign commerce of the country. I am satisfied, however, that, upon a

Hatch v. Coddington.

true and obvious interpretation, the article of fowls was not embraced within the scope of the orders, and that the customhouse officers misconstrued them. Indeed, it is due to the Secretary to say that, on his attention being called to the subject, he disavowed the construction.

The cancellation of one of the bills of lading cannot protect the ship. The master should have had all the parts of the bills of lading delivered back to him or cancelled. The case is an unfortunate one, and hardship attends the decision, in either way in which the case may be decided; but I can only follow out the law of the case.

The decree below must be reversed, and a decree be entered for the libellants.

EDWIN A. C. HATCH

vs.

THOMAS B. CODDINGTON AND OTHERS.

Where, after a trial, in an action at law, a motion is made for a new trial, and the motion is denied by an opinion of the Court filed in the clerk's office, and a judgment is then entered, the ten days within which a writ of error must be sued out to be supersedeas and stay of execution, does not commence to run from such filing of such opinion, but from the entry, in the clerk's office, of the rule for judgment.

Where a judgment is for a large amount, it is discretionary with the Court to approve of a bond, intended to operate as a stay, with a penalty less than double such amount, having regard to the security and its sufficiency for the amount embraced in the condition of the bond.

In this case, the usual affidavit of the ability of the sureties accompanied the bond at the time of its approval, and, there being no allegation of their inability, the Court held the bond to be regular, and did not require any further justification, although the sureties had not justified in compliance with a notice from the defendant in error requiring them to do so.

(Before NELSON, J., Southern District of New York, November 20th, 1867.)