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State of Pennsylvania v. The Wheeling &c. Bridge Co. et al. that a draw of one hundred feet, at the utmost, would be ample to meet those exigencies. It is also my opinion, that the costs in this cause should be equally borne by the parties.
Mr. Chief Justice TANEY also dissented, concurring in the opinion of Mr. Justice Daniel.
1. The usage upon the River Ohio is, that when the steamboats are approaching
each other in opposite directions, and a collision is apprehended, the descend-
ing boat must stop her engine, ring her bell, and float; leaving the option to
the ascending boat how to pass. Williamson v. Barrett, 101.
2. The descending boat was not bound to back her engines, and it was correct in
the Circuit Court to refuse leaving to the jury the question whether or not, in
fact, such backing of the engines would have prevented the collision, whero the
ascending boat was manifesting an intention to cross the river. Ibid.
3. The proper measure of damages is a sum sufficient to raise the sunken boat, re-
pair her, and compensate the owners for the loss of her use during the time
when she was being refitted. Ibid.
4. In a case of collision, upon the River Mississippi, between the steamboats Iowa
and Declaration, whereby the Iowa was sunk, the weight of evidence was, that
the Iowa was in fault, and the libel filed by her owners against the owners of
the Declaration was properly dismissed. Walsh et al. v. Rogers et al. 283.
5. Ex parte depositions, under the act of 1789, without notice, ought not to be
taken, unless in circumstances of absolute necessity, or in cases of mere formal
proof, or of some isolated fact. Ibid.
6. During the war with Mexico, the Admittance, an American vessel, was seized
in a port of California, by the commander of a vessel of war of the United
States, upon suspicion of trading with the enemy. She was condemned-as a
lawful prize by the chaplain belonging to one of the vessels of war upor that
station, who had been authorized by the President of the United States to ex-
ercise admiralty jurisdiction in cases of capture. Jecker et al.•v. Montgomery,
7. The owners of the cargo filed a libel against the captain of the vessel of war,
in the Admiralty Court for the District of Columbia. Being carried to the Cir-
cuit Court, it was decided :
1. That the condemnation in California was invalid as a defence for the cap-
2. That the answer of the captors, having averred sufficient probable cause for
the seizure of the cargo, and the libellants having demurred to this answer,
upon the ground that the District Court had no right to adjudicate, because
the property had not been brought within its jurisdiction, the demurrer was over-
ruled, and judgment was entered against the libellants.' Ibid.
8. The judgment of the Circuit Court, upon the first point, was correct, and upon
the second point, erroneous. Ibid.
9. The Prize Court established in California was not authorized by the laws of the
United States or the laws of nations. Ibid.
10. The grounds alleged for the seizure of the vessel and cargo in the answer, viz.,
that the vessel sailed from New Orleans with the design of trading with the
enemy, and did, in fact, hold illegal intercourse with them, are sufficient to
subject both to condemnation, if they are supported by testimony. Ibid.
11. And, if they were liable to captire and condemnation, the reasons assigned in
the answer for not bringing them into a port of the United States and libe!.
ling them for condemnation, viz., that it was impossible do so consistently
with the public interests, are sufficient, if supported by proof, to justify the
captors in selling vessel and cargo in California, and to exempt them from
damages on that account. Ibid.
12. The Admiralty Court in the district had jurisdiction of the case, and it was the
duty of the court to order the captors to institute proceedings in that coux, to
condemn the property as prize, by a day to be named in the urder; and in
default thereof, to be proceeded against upon the libel for an unlawful scizure.
13. The Admiralty Court, in the District of Columbia, had jurisdiction of such a
libel for condemnation, although the property was not brought within its juris-
diction; and, if they found it liable to condemnation, might proceed to condemn
it, although it was not brought within the custody or control of the court. Ibid.
14. The necessity of proceeding to condemn as prize, does not arise from any differ-
ence between the Instance Court and the Prize Court, as known in Eng.
land. The same court here possesses the instance and prize jurisdiction.
But because the prope ty of the neutral is not divested by the capture, but by
the condemnation in a prize court; and it is not divested until condemnation,
although, when condemned, the condemnation relates back to the capture.
15. As this libel is for the restitution of the property or the proceeds, probable cause
of seizure is no defence. It is a good defence against a claim for damages,
when the property has been restored, or lost after seizure without the fault
of the captor." But, while the property or proceeds is withheld by the captor,
and claimed as prize, probablc cause of seizure is no defence. Ibid.
16. The Circuit Court
, therefore, erred in deciding that probable cause of seizure
was a good defence. Ibid.
Boundary line between Alabama and Georgia. See GEORGIA.
An appeal does not lie to this court from the decision of a District Court in a
case of bankruptcy. Crawford v. Points, 11.
1. Where two partners assigned all their partnership property to a trustee with cer-
tain instructions how to dispose of it, and afterwards agreed between themselves
to appoint an arbitrator, recognizing in their bonds the directions given to the
trustee, the arbitrator had no right to deviate from these directions, and make
other disposition of the property. McCormick v. Gray, 27.
2. The reason given by the arbitrator, that he preferred creditors before awarding
a certain sum to one of the partners, is insufficient. Ibid.
3. Nor had the arbitrator a right to depart, in any particular, from the arrangement
of the property which the partners had designated in their deed to the trustee.
ARMY, OFFICERS OF THE.
1. During the war between the United States and Mexico, where a trader went
into the adjoining Mexican provinces which were in possession of the military
authorities of the United States, for the purpose of carrying on a trade with
the inhabitants which was sanctioned by the executive branch of the govern-
ment, and also by the commanding military officer, it was improper for an offi-
cer of the United States to seize the property upon the ground of trading with
the enemy. Mitchell v. Harmony, 115.
2. Private property may be taken by a military commander to prevent it from fall-
ing into the hands of the enemy, or for the purpose of converting it to the use .
of the public; but the danger must be immediate and impending, or the neces-
sity urgent for the public service, such as will not admit of delay, and where
the action of the civil authority would be too late in providing the means which
the occasion calls for. Ibid.
3. The facts as they appeared to the officer must furnish the rule for the application
of these principles. lbid.
4. But the officer cannot take possession of private property for the purpose of in-
suring the success of a distant expedition upon which he is about to march.
5. Whether or not the owner of the goods resumed the possession of them at any
time after their seizure, was a fact for the jury. In this case, they found that
he did not resume the possession and in this they were sustained by legal evi-
ARMY, OFFICERS OF THE, (Continued.)
6. The officer who made the soizure cannot justify his traspaso by showing the or-
ders of his superior officer. An order to commit a trespass can afford no justi.
fication to the person by whom it was executed. Ibid.
7. The trespass was committed out of the limits of the United States. But an ac-
tion for it may be maintained in the Circuit Court for any district in which the
defendant may be found upon process against him, where the citizenship of
the respective partics gives jurisdiction to a court of the United States. Ibid.
1. The following paper, viz.
" The President or Cashier of the Planters and Merchants Bank will please
hold, subject to the order of Mr. J. G. Lindsey, all the debts referred to in the
inclosed letter from Mr. McFarlin, except the two drafts of McCollier inge,
upon the Messrs. Ellicotts, of Baltimore, which, when collected, please place to
my credit” – imports an authority to Lindsey to control the settlement and
collection of these several demands; but not necessarily a transfer of the title
to or interest in them. Rogers v Lindsey, 441.
2. The circumstances of the case favor this construction. Lindsey had become
personally responsible for a sum of money, which these debts were intended
in part to meet. As an honest transaction, it would answer all purposes, if
he had only a power to collect the debts. Ibid.
3. Where Lindsey, under this power, assigned an interest in one of these judg-
ments, and the bill charged that the assignee knew of the interest of the origi-
nal creditor, which the assignee, in his answer, did not deny, he failed to bring
himself within the rules which protect a purchaser for a valuable consideration
without notice, and his claim must be set aside. Ibid.
4. Lindsey's having assigned this judgment to a third person, and then taken a re-
assignment of it, does not vary the case. He stands then in his original posi-
tion. I vid.
1. An appeal does not lie to this court, from the decision of a District Court in a
case of bankruptcy. Crawford v. Points, 11.
2. Even if it would, the decree of the District Court in this case is not a final de-
3. Where a bill in chancery was filed by the assignee of a bankrupt, claiming cer-
tain shares of bank stock, the same being also claimed by the bank and by
other persons who were all made defendants, and the answer of the bank set
forth apparently valid titles to the stock, which were not impeached by the
complainant in the subsequent proceedings in the cause, nor impeached by the
other defendants, the Circuit Court decreed correctly in confirming the title of
the bank. Buckingham v. McLean, 152.
4. A power of attorney to confess a judgment is a security within the sccond section
of the Bankrupt Act, 5 Stat. at Large, 442. Ibid.
5. And this security is void if given by the debtor in contemplation of bankruptcy.
But by these terms is meant an act of bankruptcy on an application by him.
self to be decreed a bankrupt, and not a mere state of insolvency. Ibid.
6. In this case there is evidence cnough to show that the debtor contemplated a
legal bankruptcy when the power of attorney was given. Ibid.
BILL OF EXCEPTIONS.
1. Where the only exceptions taken in the court below were to the refusals of the
court to continue the case to the next term; and it appears that the continu.
ance asked for below and the suing out the irit of error were only for the pure
pose of delaying the payment of a just debt, and no counsel appeared in this
court on that side, the 17th rule will be applied and the judgment of the court
below be affirmed with ten per cent interest
. . Barrow v. IIill, 54.
2. In a trial in Louisiana, where the judge tried the whole case without the inter-
vention of a jury, a bill of exceptions to the admission of testimony by the
judge, cannot be sustained in this court. Weems v. George, 190.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
Sce COMMERCIAL LAW.
1. In a suit upon a postmaster's bond, when treasury transcripts are offered in evi-
dence, it is not necessary that they should contain the statements of credits
claimed by the postmaster, and disallowed, in whole or in part, by the officers
of the government. U. S. v. Hodge et al. 478.
2. Nor is it a reason for rejecting the transcripts as evidence, that the items charged
in the accounts, as balances of quarterly returns, did not purport, on the face
of said accounts, to be balances acknowledged by the postmaster, nor were
supported by proper vouchers; but merely purported to be the balances of said
quarterly returns, as audited and adjusted by the officers of the government.
The objection applied, if at all, to the accuracy of the accounts, and not to
their admission as evidence. Ibid.
3. The basis of an action against a postmaster is his bond and its breaches; and
not the transcripts nor the quarterly returns, which are made evidence by the
1. Where two partners assigned all their partnership property to a trustce with cer
tain instructions how to dispose of it, and afterwards agreed between them.
selves to appoint an arbitrator, recognizing in their bonds the directions given
to the trustee, the arbitrator had no right to deviate from these directions, and
make other disposition of the property. McCormick v. Gray, 27.
2. The reason given by the arbitrator, that he preferred creditors before awarding &
certain sum tc one of the partners, is insufficient. Ibid.
3. Nor had the arbitrator a right to depart, in any particular, from the arrange-
ment of thy property which the partners had designated in their deed to the
4. Where there was a contract for the sale of land for the purchase of which in-
dorsed notes were given, but before the time arrived for the making of a deed,
the purchaser failed, and the liability to pay the note became fixed upon the
indoreer; and a new contract was made between the vendor and the indorser,
that, in order to protect the indorser, he should be substituted in place of the
original purchaser, fresh notes being given and the time of payment extended,
evidence was admissible to show that the latter contract was a substitute for
the former. Bradford v. Union Bank of Tennessee, 57.
5. A part of the land having been sold for taxes whilst the first set of notes was
running to maturity, (the vendee having been put into possession,) and the
vendor being ignorant of that fact when the contract of substitution was made,
all that the indorser can claim of the vendor, is a deed for the land subject to
the incumbrances arising from the tax-sales. The notes given for the substi-
tuted contract must be paid. Ibid.
6. The indorser having filed a bill for a specific performance upon the title-bond,
which he had received from the vendor, this court will not content itself with
dismissing his bill without prejudice, and thus give rise to further litigation, but
proceed to pass a final decree, founded on the above principles. Ibid.
The legislature of Virginia incorporated the stockhoiders of the Richmond, Fre-
dericksburg, and Potomac Railroad Company, and in the charter pledged itself
not to allow any other railroad to be constructed between those places, or any
portion of that distance, the probable effect would be to diminish the number
of passengers travelling between the one city and the other upon the railroad
authorized by that act, or to compel the said company, in order to retain such
passengers, to reduce the passage-money. Richmond Railroad Company v. Louisa
Railroad Company, 71.
8. Afterwards the legislature incorporated the Louisa Railroad Company, whose
road came from the West and struck the first-named company's track nearly
at right angles, at some distance from Richmond; and the legislature author-
ized the Louisa Railroad Company to cross the track of the other, and con-
tinue their road to Richmond. Ibid.
9. In this latter grant, the obligation of the contract with the first company is not
impaired within the meaning of the Constitution of the United States: Ibid.
10. In the first charter, there was an implied reservation of the power to incorporate
companies to transport other articles than passengers; and if the Louisa Rail.
road Company should infringe upon the rights of the Richmond Company,
there would be a rernedy, at law, but the apprehension of it will not justify an
injunction to prevent them from building their road. Ibid.