The Magenta.

scending boat were hidden from witness by the chimneys of the Magenta; this time was probably half a minute, not more than a minute. When I next saw the lights, I discovered that the Brazil, the descending boat, was running directly across the river, square across our bow."

Captain Leathers, of the Magenta, testifies that he and both the pilots were in the pilot-house at the time of the collision. If the chimneys of the Magenta hid the lights of the Brazil from the pilot, Carter, they hid them also from the other pilot and the captain. The proper and usual place for the look out was on the hurricane deck, in front of the chimneys. No testimony is offered on the part of claimants to show that a man on the look out was stationed there, and it is fair to presume that there was none or we should have the fact in the testimony. The pilot-house, behind the chimneys, is not the place for the man on watch, when passing other steamers in the night. If a proper lookout had been maintained on the Magenta, the impending danger of a collision might have been seen, and by good seamanship avoided.

I find, therefore, that both steamers were at fault; that by the exercise of proper watchfulness and skill on the part of either, the collision might have been avoided.

In such a case, according to the rules laid down by the supreme court in The Catherine v. Dickinson, 17 How. 170, the loss must be divided.

The damage to the Magenta was, according to Captain Leathers, from three to five hundred dollars; and he is the only witness that speaks to the point. I put the damages, therefore, at three hundred dollars.

The testimony as to the damage occasioned by the loss of the Brazil is very conflicting; but after a careful review of the testimony, I am satisfied the court

United States v. Five hundred boxes of Pipes.

below fixed the damage very near the correct amount, namely, twelve thousand dollars. From one-half this amount, to wit, six thousand dollars, should be deducted the one-half of the estimated damage suffered by the Magenta, namely, one hundred and fifty dollars, leaving the sum of five thousand eight hundred and fifty dollars as the amount of the decree in favor of libelant against the Magenta.

Let a decree be entered accordingly, each party to pay his own costs.

Decree accordingly.

UNITED STATES v. FIVE HUNDRED BOXES OF PIPES.

District Court, Eastern District of Michigan; April,

1870.

PAYMENT OF DUTIES.-ADMIRALTY JURISDICTION.

The admiralty jurisdiction of the district court in revenue cases, extends only to seizures for forfeitures under duty laws; as conferred by section 9 of the judiciary act of 1789, 1 Stut. at L. 76. The payment of duties can only be enforced by proceedings on the common law side of the court.

It seems, where imported goods have been seized for an alleged violation of the revenue laws, and a decision has been rendered in favor of the claimant, that the United States is hot deprived of its lien upon the goods for the duties unpaid.

Motion to rectify a decree.

United States v. Five hundred boxes of Pipes.

This was an information in rem on a seizure for undervaluation. A decree on the merits was passed in favor of claimants, with a certificate of probable canse to the collector, and a writ of restitution to claimants, "upon payment of duties, or filing of a re-exportation bond."

Motion was now made to strike out the words in quotations, requiring the payment of duties, &c.,

A. Russell, for the motion.

A. B. Maynard, District-Attorney, for the gov

ernment.

LONGYEAR, J.-This case is in the admiralty; and it has been long since settled by the supreme court, 12 Wheat. 486, that this court possesses no admiralty jurisdiction to enforce the payment of duties. Admiralty jurisdiction in revenue cases extends only to seizures for forfeitures under laws of impost, navigation, or trade of the United States, as conferred by section 9 of the judiciary act of 1789, 1 Stat. at L. 76. A suit to enforce the payment of duties must be on the common law side of the court, and not in the admiralty.

This precise point was decided on mature consideration, by the supreme court, in the case of Three hundred chests of Tea, 12 Wheat. 486. That decision is of course conclusive upon the point, so far as this court is concerned. See, also, The Waterloo, Blatchf. & H., 120.

In a case which was before the supreme court in 1809, Yeaton v. United States, 5 Cranch, 281, 284, a decree seems to have been entered very much like the one in the present case; but the point here made does not seem to have been presented to or considered by the court, and the case is entitled to no weight as authority, as against the later decision (1827) in the same court,

United States v. Five hundred boxes of Pipes.

in the Tea case, above cited; in which the point was presented and fully considered.

The motion is granted, and the decree must be modified accordingly.

As this decision is based upon a want of jurisdiction, the decree as modified, cannot, of course, in any manner affect any claim or lien which the United States may have for duties. Whether any such claim or lien exists, is a question so entirely outside this case that any consideration or decision of it here would seem to be out of place. I will, however, remark in passing, that by the act of July 18, 1866, 14 Stat. at L. 186, § 31, the legal custody of the property seized has been and is now in the collector. If the duties have not been paid, they are of course still due and payable; and with the light that I now have, I can see no reason why they are not a lien now just the same as before the seizure.

The doctrine of merger can no more be applied in this case than in the case of a mortgage held by a person claiming the title when it is for his interest to keep the mortgage alive; in which case, on the failure of the title, the mortgage lien can always be enforced. Neither can it be said that like a pledge, the lien is defeated by a voluntary relinquishment of possession, because the United States have all the time remained in full legal possession.

Motion granted.

Northrop v. Gregory.

NORTHROP v. GREGORY.

District Court; Eastern District of Michigan, June T., 1870.

ADMIRALTY.-ENTRY OF DECREE.

A motion to open a decree in admiralty entered by default, must be made within ten days after entry; otherwise it must be denied. A motion to open a decree in admiralty entered by default, must be accompanied by the answer proposed to be filed, or at least by a statement of the grounds of defense intended; so that the court can determine whether the defense is meritorious.

A decree signed by a district judge after he has tendered a conditional resignation, but before it has been accepted by the government, is valid.

Motion to rescind a decree entered by default, and allow respondent to answer.

The motion was made upon two grounds.

1. Because of mistake by respondents as to return day of the citation; with general allegations of a meritorious defense.

2. Because Judge WILKINS, who signed the decree as District Judge, was not such at the time of entry and signing of the decree, he having ceased to be such by his previous resignation; and the decree is therefore a nullity.

Mr. Cheever, for the motion.

H. B. Brown, opposed.

LONGYEAR, J.-The decree was entered February 1, 1870, and this motion was made on the 18th of the same month, seventeen days after the decree was entered.