1. A collision occurred, in Vineyard Sound, between the steam yacht A.,
at anchor, owned by V. of New York, and the steamship D., owned by
a Massachusetts corporation. The A. sank. The corporation filed a
libel against V., to limit its liability in the District Court for Massa-
chusetts, under §§ 4283 and 4284 of the Revised Statutes, alleging that
the D. was lying at Boston, and averring no negligence in the D., and
negligence in the A., and praying for an appraisement of the value of
the D. and her pending freight at the time of the collision, and offering
to give a stipulation therefor. It was alleged that the A. was worth
over $250,000, and that the value of the D. and her freight was less
than $150,000. The court appointed three appraisers, who made the
appraisement ex parte, and reported the value of the D. at $80,000 and
of her freight at $2395.33, and a stipulation was given for those
amounts. A monition was then issued for notice to V. and all persons
concerned to prove their claims for loss by a day named. The moni-
tion was duly published but was not personally served on V. in the
Massachusetts District. The court made an order enjoining V. and
all other persons from suing the corporation or the D. in respect of
any claims arising out of the collision "except in these proceed-
ings." Afterwards, M., the master of the A. filed a libel in the Dis-
trict Court for the Southern District of New York, against the
corporation, the D., V., and all persons claiming damages from the
collision for apportionment of limited liability, charging the fault
wholly on the D., alleging that the loss of V. was $305,000, and that
of M. over $1300; and that the value of the D. was over $200,000.
Under process the D. was attached, and it was served on the corpora-
tion, and V. duly appeared. On motion of the D. and the corporation
the District Court in New York, on a hearing of all parties made an
order vacating the process issued on the libel of M., setting aside the
service thereof on the corporation, releasing the D. from the attach-
ment, and dismissing the libel. The court held that M. had notice,
before he filed his libel, of the proceedings in Massachusetts, and of
the injunction order issued there. On applications by M. to this court,
for a mandamus to the District Court in New York, to vacate its order
and reinstate the libel of M., and for a prohibition to the District Court
in Massachusetts from proceeding further on the libel filed there;
Held, (1) The District Court in New York dismissed the libel of M.
on a hearing on the merits; (2) If the jurisdiction of that court was in
issue before it, the remedy of M. was by a direct appeal to this court,
on that question, under § 5 of the act of March 3, 1891, c. 517, 26 Stat.
827; (3) If otherwise, the remedy of M., as against the order dismiss-
ing the libel, was by an appeal to the Circuit Court of Appeals, for the
Second Circuit, under § 6 of the same act; (4) The mandamus is re-
fused; (5) The District Court in Massachusetts acquired prior juris-
diction of the proceedings; (6) That court did not lose its jurisdiction
by the fact that the D. subsequently went to New York; (7) In order
to sustain the proceeding it was not necessary that M. or V. should
have been personally served with notice thereof within the District of
Massachusetts, or that the D. should have been taken and held by the
Massachusetts Court; (8) The filing of the libel by the corporation,
with the offer of a stipulation, gave jurisdiction, and no subsequent
irregularity in procedure could take it away; (9) The ex parte ap-
praisement was not void; (10) The District Court in Massachusetts
can order the giving of a new or further stipulation, and, on a failure
to comply with such order, can stay the further proceedings of
the corporation, deny it all relief, and dismiss its libel; (11) The
provision of Rule 54 in Admiralty, for the giving of a stipulation,
instead of making a transfer to a trustee, is valid, and the value
involved may be judicially ascertained primarily without a hearing of
the persons interested adversely. In re Morrison, 14.
2. In construing the act of February 16, 1875, 18 Stat. 315, c. 77, so far as
it relates to admiralty suits, it is settled: (1) That the facts found
by the court below are conclusive; that a bill of exceptions cannot be
used to bring up the evidence for a review of the findings; that the
only rulings upon which this court is authorized to pass are such as
might be presented by a bill of exceptions prepared as in an action
at law; and that the findings have practically the same effect as the
special verdict of a jury; (2) That it is only the ultimate facts which
the court is bound to find; and that this court will not take notice of
a refusal to find the mere incidental facts, which only amount to
evidence from which the ultimate fact is to be obtained; (3) That
if the court below neglects or refuses to make a finding one way or
the other, as to the existence of a material fact which has been estab-
lished by uncontradicted evidence, or if it finds such a fact when not
supported by any evidence whatever, and an exception be taken, the
question may be brought up for review in that particular. The City
of New York, 72.
3. Applying these rules to the findings in the present case, Held, (1) That
there was gross negligence on the part of the steamship in failing to
run at moderate speed in a fog, and in failing to take the proper
precautions when the proximity of the sailing vessel became known;
(2) That so far as the barque was concerned there was evidence to
support the findings of the Circuit Court, and that these findings
justify the conclusion that its change of course was made in extremis.
lb.
. 4. The probability that a steamer or a vessel sailing with a free wind will
pursue the course customarily pursued in that vicinity by vessels
bound from and to the same port is so strong, that a deviation from
that course without apparent cause will not be considered as estab-
lished without a clear preponderance of testimony. lb.
5. There is no such certainty of the exact position of a horn blown in a
fog, as will justify a steamer in speculating upon the probability of
avoiding it by a change of helm, without taking the additional pre-
caution of stopping until its location is definitely ascertained. Ib.
6. Where fault on the part of one vessel is established by uncontradicted
testimony, and such fault is, of itself, sufficient to account for the
disaster, it is not enough for such vessel to raise a doubt with regard
to the management of the other vessel. Ib.
ADVERSE POSSESSION.
See UNITED STATES, 5.
See EMINENT DOMAIN, 6, 7, 8.
ASSIGNMENT FOR THE BENEFIT OF CREDITORS.
An assignment of all his property, made for the benefit of his creditors
with preferences, by a citizen of Utah to another citizen of Utah
which is valid by the laws of Utah and valid at the common law, is
valid in Idaho against an attaching creditor, as to property in Idaho
of which the assignee has taken possession, notwithstanding the pro-
vision in the Revised Statutes of Idaho that no assignment by an
insolvent debtor otherwise than as therein provided is binding on
creditors, and that creditors must share pro rata, without priority or
preference. Barnett v. Kinney, 476.
ATTACHMENT.
See JURISDICTion, A, 6.
A creditor of a bankrupt caused execution to be levied, before the
bankruptcy, on goods of the bankrupt to satisfy the debt.
was afterwards set aside, as an illegal preference within the purview
of the bankrupt act, in consequence of knowledge of the debtor's con-
dition by the plaintiff's attorney. Held, that the creditor was not
thereby precluded from proving his debt against the bankrupt; and
that an endorser of the note of the bankrupt to the creditor, on which
the judgment was founded, was not discharged from his liability as
endorser by reason of the levy being declared in fraud of the provi-
sions of the bankrupt law, Rev. Stat. § 5084, and § 5021, as amended
by the act of June 22, 1874, 18 Stat. 178, 181. Streeter v. Jefferson
County Bank, 36.
See CONSTITUTIONAL LAW, 1;
Costs, 9, 14, 23.
1. The cases of Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 156; White-
head v. New York Life Ins. Co., 102 N. Y. 143; and Garner v. Germa-
nia Life Ins. Co., 110 N. Y. 266, distinguished. Miles v. Connecticut
Mutual Life Insurance Co., 177.
2. Huse v. Glover, 119 U. S. 543, and Sands v. Manistee Improvement Co.,
123 U. S. 288, each distinguished from this case. Harman v. Chicago,
3. Gardner v. Risher, 35 Kansas, 93, distinguished from Kennett v. Fickel,
41 Kansas, 211. Clement v. Field, 467.
See EXECUTOR AND ADMINIStrator.
CIRCUIT COURTS OF APPEALS.
See JURISDICTION, A, 5;
MANDAMUS.
CLAIMS AGAINST THE UNITED STATES.
1. By sec. 7 of the act of October 2, 1888, 25 Stat. 505, 523, c. 1069, in
regard to the building for the Library of Congress, which provided that
all contracts for the construction of the building should be made by
the Chief of Engineers of the Army, and repealed so much of the act
of April 15, 1886, 24 Stat. 12, c. 50, as required the construction of the
building according to the plan submitted by John L. Smithmeyer, and
enacted that "hereafter, until otherwise ordered by Congress, no work
shall be done in the construction of said Library except such as is
herein provided for, and all contracts for work or materials not neces-
sary for the execution of the work contemplated herein are hereby
rescinded," it was provided that "all loss or damage occasioned thereby
or arising under said contracts, together with the value of the plan for
a Library building," so submitted by Smithmeyer, "may be adjusted
and determined by the Secretary of the Interior, to be paid out of the
sums heretofore or hereby appropriated." Smithmeyer and his partner
afterwards brought a suit in the Court of Claims against the United
States, to recover $210,000 as the value of plans and drawings made
by them for a building for the Library, which were delivered to and
accepted by the United States, and used in constructing the building.
The Court of Claims held, that the acts of the parties indicated that
the services of the plaintiffs should be estimated according to the rule
of quantum meruit, and not according to the schedule of charges of the
American Institute of Architects, and that they were entitled to
recover $8000 a year for six years' services. Held, that that was a
proper and reasonable decision. Smithmeyer v. United States, 342.
2. The treasury officers have a right to require of a marshal items of
expenses incurred in endeavoring to arrest persons charged with the
commission of crime. United States v. Fletcher, 664.
3. When claims against the United States are presented to the proper
department for allowance, and the department suspends action until
proper vouchers are furnished, or other reasonable requirements are
complied with, the courts should not assume jurisdiction until final
action is taken. Ib.
CLERK OF A CIRCUIT COURT.
See COSTS, 15 to 20, 22, 23, 24, 25 to 29, 31.
CLERK OF A DISTRICT COURT.
See COSTS, 9 to 14, 22, 25, 31.
1. In an action against a common carrier to recover damages for personal
injuries, if the facts relating to contributory negligence are disputed,
that question should be submitted to the jury; and, if the jury find
for the plaintiff, the court is not required, in the exercise of judicial
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