to excuse the master, under
the proviso of this act, must
state that the seamen were left
in a foreign port with his con-
sent. A certificate that they
were left in a hospital unable to
return, and that the master had
paid for their maintenance,
and left the amount of their
wages, was held insufficient,
and parol evidence of the con-
-sent of the consul or seamen
inadmissible.
ib.
11. The sum of 400 dollars, in
which the bond is to be taken,
is intended as a forfeiture, and
not as a penalty to cover such
damages as may be assessed.
Impossibility of assessing the
damages contemplated by the

act.

572

ib.
12. The master may hypothecate
vessel and freight, in a foreign
port, for advances necessary
for repairing and provisioning
the vessel, if such advances
cannot be procured on the
credit of the owner. Murray
v. Lazarus.
13. Whether, by the maritime
law, the contracts of the mas-
ter, under such circumstances,
for necessaries, create a lien
without an express hypothe-
cation? Quere.
14. But if they were admitted to
have such effect, an express
contract for payment would be
a waiver of the implied lien. ib.
15. As where a vessel bound
from New-Orleans to New.
York, put into Wilmington in
a damaged state, where the
master, having no other means,
obtained advances from the li-
bellants for the necessary re-

ib.

pairs, and gave them a draft for
the amount on bis consignees,
which was afterwards protest-
ed for non-acceptance. On a
libel against the freight, in the
hands of the consignees, held,
that the acceptance of the draft
was a waiver of the lien if any
existed.
- 16.

16. The draft was expressed to
be "for value received in dis-
bursements, and repairs of the
brig Hannah," with directions
to charge the same to her ac-
count, and signed by the draw-
er as master. Held, that the
draft was not an hypothecation
of the freight, as it wanted all
the requisites, such as an ex-
press pledge, maritime inter-
est, risk of the lender, of an
instrument of hypothecation.

ib.

17. Nor has such draft the effect
of an equitable assignment of
the freight, as a draft on a spe-
cific fund.
ib.

18.

A vessel was libelled in the
District Court for materials
furnished. The claimants stat-
ed in their claim, that they
had attached the vessel for ma-
terials furnished, in a State
Court, under the acts of the
state of 1798, and 1817,
the day before the libel was
filed, and prayed the advice
and protection of the Court in
regard to their priority, under
the attachment, and if the ves-
sel should be decreed to be
sold, that they might be first
paid. Held, that this was not
a submission by the claimants
to the jurisdiction of the
Court, but that they were en-

The

620

titled to their election to pro-
ceed in the other Court.
ship Robert Fulton.
19. The Sheriff having attached
the vessel under the process
of the State Court, it was held
that the Marshal could have no
authority to take it out of his
possession, but should have so
returned, to prevent a confiict
of jurisdiction.
ib.
20. Difficulty as to the mode of
obtaining satisfaction of a judg-
ment under the laws of New-
York, for materials furnished
a vessel. The proper mode
is by a sale of the vessel, un-
der an execution against her,
issued on the judgment. ib.

2.

The act of the state of New-
York of the 24th of March,
1797, entitled "An act to set-
tle disputes concerning the ti-
tles to lands in the county of
Onondaga," is in effect only a
statute of limitatious, and a va-
lid and constitutional law. ib.
3. The commissioners appoint-
ed under this act were not a
Court within the meaning of
the 41st section of the consti-
tution of the state: They act-
ed in the character of arbitra-
tors, to hear disputes that
should be voluntarily submit-
ted to them; and if their
award was not specially agreed
to by the parties, it had no
binding effect upon the right.
It was not necessary, there-
fore, that they should proceed
according to the course of the
Common Law or by jury trial.
ib.
4. This act is a law of the land,
within the meaning of the 13th
article of the constitution, al-
though it does not extend over
the whole state, but is con-
fined to lands in the county of
Onondaga.
ib.
5. The act of New-York, enti-

tled "an act limiting the pe-
riod of bringing claims and pro-
secutions against forfeited es-
tates," was not intended to bar

those against whom the for-
feiture had passed, but to bar
the claims of strangers to the
forfeiture. The mischief ap-
prehended was the loss of
deeds, which was to be feared
in the case of strangers only,
and not of those who claimed
under the forfeited title. Denn
ex dem. Fisher v. Harnden. 55

Vide INSOLVENT LAWS. JURIS-
DICTION, 7, 8, 9. REPEAL OF
STATUTES. SHIFS, 18, 19, 20.

STATUTES OF UNITED
STATES.

1. Alien enemies who had en-
rolled themselves as volun-
teers, and been accepted by
the President, under the act
of the 6th of February, 1812,
not entitled to be discharged;
there being no law enjoining
the President from accepting
them. Wilson v. Izzard. 68
2. It seems, that the President
had a right to accept volun-
teers, to serve at a particular
post as well as for general
service, the act being silent on
the subject. At any rate he
had a discretion in the pre-
mises, not to be controlled by
a Court of Justice.
ib.
3. The insertion in their enrol-

ment of the officer's name un-
der whom the volunteers were
to serve, was meant merely to
ascertain the post where they
were to serve by designating
its commander, and not to at-
tach them to his personal com-
mand, so that he could not be
changed.

ib.

2. Such an agreement substitut-
ing tapia for brick, and alter-
ing the mode of estimation
and price of labour in the con-
struction of a fort, was held to
discharge the sureties.
ib.
3. And it is immaterial whether
such alterations be for the be-
nefit or to the prejudice of
the principal.

ib.

4. One made a contract with the
War Department to build a
fort, in which it was agreed
that advances should be made,
in part payment of the work,
for materials delivered with
the invoice at the fort, and
pronounced by the engineer
of proper quality, and at the
end of each month for the
work performed. Large ad-
vances having been made, the
contract was assigned, and the
assignee gave a bond with
sureties to account for "ad-
vances under and by virtue of
the contract." The sureties
were held entitled to the be-
nefit of all the limitations pro-
vided in the contract, and not

answerable for advances made
where such limitations were
dispensed with, whether the
advances were made before
or after the making of the
bond, the sureties not appear-
ing to have known how such
advances had been made. ib.
5. The bond provided that the

principal should account "for
all such further advances as
might thereafter be made to
facilitate the execution of the
contract." This was held to
mean such advances only as
were provided for by the con-
tract, and with the same limi-
tations and restrictions.
6. Advances made under such a
contract are not a purchase of
the materials delivered so as
to vest the property in the
United States, but it remains
unchanged.
ib.

ib.

7. Where the contracting par-
ties modify the contract so
that the rights of the obligor
in some particulars are mate-
rially varied, it becomes a new
contract as it regards the
sureties, to which their under-
taking does not extend. ib.
8. Whether the death of the
principal before the time for
the completion of the work
had expired put an end to the
contract above described and
discharged the sureties ?
Quere.
ib.
9. But it seems that they were
discharged by the refusal of
the War Department to suffer
the administrator of the prin-
cipal to proceed to complete
the work.
10. Whether the appropriation
by Congress of only 30,000

ib.

dollars to complete the fort,
when 690,000 dollars were
required, authorized the con-
tractor to suspend the work
before the appropriation was
exhausted, and discharged the
sureties? Quere.
ib.
11. A discharge from imprison-
ment by the Secretary of the
Treasury, of a debtor to the
United States, under the act
of 1798, does not discharge
his co-obligors and sureties in
the bond from their liability.
United States v. Sturges. 525
15. One gave a bond with sure-
ties to the Bank of the United
States, conditioned, that he
should faithfully perform the
duties of Cashier of their Office
of Discount and Deposite at
Middletown, during the term
he should hold said office. The
bank at Philadelphia hearing
that he had been guilty of a
gross breach of trust,-by a
resolution passed on the 27th
of October, 1820, suspended
him from office till the fur-
ther pleasure of the board,
and directed the property of
the bank to be taken out of
his hands. This resolution was
communicated to the Cashier
and carried into effect on the
30th day of the same month:
Held, that the suspension did
not take effect instanter on the
27th, but on the 30th, when
it was made known to the
Cashier; and that until then
he was Cashier, within the
letter of the bond, and the
sureties liable for his acts.
Bank of United States v. Ma-
gill.
661
13. Had the resolution been ta

Vide EJECTMENT, 1. 12, 13. Jt-
RISDICTION, 7, 8, 9. REPEAL
OF STATUTES.

TRESPASS.

1. If the master or crew of a pri-
vateer exceed their authority,
and in the performance of le-
gitimate acts commit an out-
rage, the owners are liable.
The Amiable Nancy.
:11
2. Where a neutral vessel was
plundered of her papers by a
privateer, in consequence of
which she was seized by an-
other belligerent, and pro-
ceeded against as prize, but
made a compromise with her
captors and paid a ransom and
costs: Holden, that the own-
ers of the privateer were not
liable for those items, (there
being no privity to the com-
promise,) nor for any other
injurious consequences flow-
ing from the compromise. ib.
3. The rule of damages, in cases
of marine trespass, is the fall
value of the property injured
or destroyed. A claim for loss
of voyage rejected.
ib.
4. Vindictive damages not allow-
able against the owners of a
privateer, for trespasses com-
mitted by the crew. Whether
the owners are liable at all for
trespasses on the person?
Quere.
ib.

Vide JURISDICTION, 10.

TRUST.

Vide CHANCERY, 3—12. PRIORI-

TY OF UNITED STATES, 1-16.

TREATIES.