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
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-
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.
17. Nor has such draft the effect of an equitable assignment of the freight, as a draft on a spe- cific fund. ib.
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-
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.
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.
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.
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.
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
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.
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 CHANCERY, 3—12. PRIORI-
TY OF UNITED STATES, 1-16.
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