Opinion of the court. countries is entirely coincident in every particular involved in this record.* Claim in that case was made for a salvage compensation, and the suit was instituted by the Liverpool Steamtug Company. Assistance in the case of The Pault was rendered to a ship and her cargo, and the salvage suit was commenced and prosecuted by the Anglo-Egyptian Steam Navigation Company. Libellants in the case of The Collier‡ were the Brighton Railway Company as owners of the steamship Lyons, and the master and crew, and the libel was sustained.§ II. Next proposition of the claimants is that the libellants, even if they may be regarded as salvors, were not the sole salvors, and consequently that the decree of the Circuit Court ought not to be affirmed, as it would not be a bar to a subsequent suit for the same services if instituted by their employees. Evidently the objection is in the nature of a plea in abatement, and should have been taken in the answer, or by a proper exception in the court below. Monition, in due form, was issued at the commencement of the proceedings, which was a notice to every one interested to appear and show cause, if any, why the prayer of the libel should not be granted. Adjudged cases, besides those already cited, are quite numerous, where salvage suits have been instituted in the name of the ship or of the owners, without any allegation that the suit was prosecuted for the benefit of the master and crew, and no case is referred to where it has been held that the claimants, even in the court of original jurisdiction, can abate the suit on that account. All persons interested may appear, on the return of the monition, and become parties to the suit, or, by some proper proceeding, have their rights *The Pericles, 1 Browning & Lushington, 80. † Law Reports, 1 Adm. and Eccl. 57. Ib. 83. The Minnehaha, 1 Lushington, 335; The Annapolis, Ib. 355; The Pensacola, 1 Browning & Lushington, 306; The Fusilier, 1 Ib. 341, 349; The Bartley, Swabey, 198; The Galatea, Ib. 349. Opinion of the court. adjudicated; and in many cases, even after the decree upon the merits is pronounced, they may appear at any time before the fund is distributed and claim any interest they may have in the proceeds of the property libelled, if any, in the registry of the court, but it is quite clear that the claimants in this record are in no condition to present for decision any such question as that involved in the proposition under consideration. III. If the defence is not sustained on that ground, then the claimants contend that the services rendered were not salvage services, because, as they allege, they were rendered under an agreement for a fixed sum. Three answers may be given to that proposition, each of which is sufficient to show that it cannot be sustained. (1.) No such defence is set up in the answer. (2.) Nothing was ever paid or tendered to the libellants for that part of their claim now in controversy, and it is well settled law that an agreement of the kind suggested is no defence to a meritorious claim for salvage, unless it is set up in the answer with an averment of tender or payment. Such an agreement does not alter the character of the service rendered, so that if it was in fact a salvage service, it is none the less so because the compensation to be received is regulated by the terms of an agreement between the master of the ship or the owners of the salved property.* Defences in salvage suits, as well as in other suits in admiralty, must be set up in the answer, and if not, and the services proved were salvage services, the libellants must prevail. Agreements of the kind suggested ought certainly to be set up in the answer, as it is not every agreement which will have the effect to diminish a claim for salvage compensation. On the contrary, the rule is that nothing short of a contract to pay a given sum for the services to be rendered, or a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will operate as a bar to a meritorious claim for salvage.‡ *The Emulous, 1 Sumner, 210. †The Boston, Ib. 328. The Versailles, 1 Curtis, 355; The Lushington, 7 Notes of Cases, 361; Opinion of the court. (3.) But if the agreement had been set up in the answer, it would constitute no defence, as by the terms of the instrument the libellants were not to receive any compensation whatever, or be entitled to any lien upon the property, unless the materials and machinery were substantially saved, so that it is clear that the compensation was not to be paid at all events. IV. Discussion as to the amount allowed in the decree is hardly necessary, as it is clear that it does not much exceed the amount the claimants agreed to pay for the services, in case the libellants were successful in raising the ship and in saving the materials intended for the construction of the monitor and her armament. Attempt was made by the agent of the underwriters, at great expense, to pump out the ship, as before explained, but the record shows that he was unsuccessful, although the men engaged in the attempt were under the superintendence of one of the claimants. Expensive preparations became necessary before they could commence pumping, and in the course of those arrangements they were obliged to cut openings in the decks and through those openings they took out sixty or seventy tons of the cargo, but the attempt to pump out the ship proved an utter failure, from the intrinsic impracticability of raising the vessel by that plan. Next attempt by that party was to lift the vessel, with the cargo on board, by means of chains, but the scheme as projected proved to be impracticable, as the bottom of the dock where the ship sunk was solid rock, and the divers found it impossible to get the chains under the vessel. Efforts of a similar character were continued by the agent of the underwriters until he expended $38,000 in gold, but all his efforts to raise the ship or save the cargo, except the fractional part before mentioned, were wholly unsuccessful. The Centurion, Ware, 477; The Foster, Abbott, Admiralty, 222; The Whitaker, 1 Sprague, 288; The Brig Susan, Ib. 503; Parsons on Shipping, 275; The Phantom, Law Reports, 1 Adm. and Eccl. 61; The White Star, Ib. 70; The Saratoga, 1 Lushington, 321; MacLachlan or. Shipping, 531; The John Shaw, 1 Clifford, 236. Opinion of the court. Complete success attended the efforts of the libellants, as is admitted by the claimants in their answer. When the property in question was insured, it was valued at $400,000, for which policies were granted by the underwriters for the sum of $340,000; and under the contract between the claimants and the libellants they adopted the same valuation. Of that sum $60,000 was uninsured, and $15,000 of the amount insured was never paid, and the record shows that the whole of the property on board when the agent of the libellants took possession of the wreck was rescued from imminent peril and was delivered to the claimants or their order. Difficulties almost unexampled attended the undertaking, and the divers, in taking out the cargo to lighten the ship so that she could be raised and secured, were exposed to great danger. Expenses were incurred by the libellants exceeding $60,000 in rescuing and saving the property, including moneys paid out and loss of apparatus and machinery. Considering the skill required to perform the work, and the expense incurred, and the time and labor spent in completing the enterprise, the court is not satisfied that the amount awarded is excessive. Appellate courts are reluctant to disturb an award for salvage, on the ground that the subordinate court gave too large a sum to the salvors, unless they are clearly satisfied that the court below made an exorbitant estimate of their services.* Judge Story said, in the case of Hobart v. Drogan, † that the "court is not in the habit of reversing such decrees as to the amount of salvage, unless upon some clear and palpable mistake or gross over-allowance of the court below.‡ Evidence to show any such errors in the case is entirely * The Fusilier, 1 Browning & Lushington, 850; Hobart v. Drogan, 10 Peters, 119. † 10 Peters, 119. The True Blue, 4 Moore Privy Council, N. S. 101; The Emulous, 1 Sumner, 214. Statement of the case. wanting, and in view of the whole record the court is of the opinion that the decree of the Circuit Court is correct. DECREE AFFIRMED WITH COSTS. ALLEN V. KILLINGER. 1. To admit the declarations of a third person in evidence, on the ground that one party to the suit had referred the other party to him, it is necessary that the reference should be for information relating to the matters in issue. 2. A conversation between the plaintiff and such third party, in regard to a contract of the plaintiff with the defendant, cannot be given in evidence when the reference by the defendant to such party was not for information concerning such contract. 3. The plaintiff's statements, in such conversation, concerning the terms of the contract, are not evidence in his favor, especially, since he can give his own version of the contract as a witness, but under oath, and subject to cross-examination. ERROR to the Circuit Court for the Northern District of Illinois. The case was this: There were two firms of both which a certain B. F. Murphy was a member; the one was at Des Moines, and consisted of this B. F. Murphy and a certain Allen. This firm was under the title of Murphy & Allen. The other was at Chicago, and consisted of this same B. F. Murphy and one Miles Murphy. This firm was under the title of Miles Murphy & Co. The former was engaged in the business of parking pork; the latter in that of buying and selling the “hog product" on commission. In this state of things, one Killinger, passing through Des Moines with a drove of hogs, and meeting with Allen, whom he had known before, entered into a contract of some sort about them with him, and the hogs, instead of being driven further, were killed and packed by the firm at Des Moines, and forwarded to the firm at Chicago, by whom they were sold. The Chicago firm, however, failed, soon after, and never paid the money, either to Killinger or to the Des |