1. Where an administrator sells property which had been conveyed to him for
the purpose of securing a debt due to his intestate's estate, his failure to
account for the proceeds amounts to a devastavit, and renders himself and
his sureties upon his administration bond liable; but it does not entitle
the heirs to claim the property from a purchaser in good faith for a valu-
able consideration. Long et al. v. O'Fallon, 116,
2. Nor can the heirs, in such a case, claim land which has been taken up by
the administrator as vacant land, and for which he obtained a patent
from the United States, although such land was included in the convey-
ance to him. Ibid.
3. Moreover, the facts necessary to sustain the plea of the statute of limitations
are proved on the part of the defendant in this case, and no charge in the
bill discloses a case of exception from its operation. Ibid.
1. The master of a vessel has power to create a lien upon it for repairs and
supplies obtained in a foreign port in a case of necessity; and he does so
without a bottomry bond, when he obtains them, in a case of necessity,
on the credit of the vessel. Thomas et al. v. Osborn, 22.
2. It is not material whether the implied hypothecation is made directly to the
furnishers of repairs and supplies, or to one who lends money, on the
credit of the vessel, in a case of necessity, to pay such furnishers. Ibid.
3. This power of the master extends to a case where he is charterer and special
owner pro hac vice. 'Ibid.
4. But this authority only exists in cases of necessity, and it is the duty of the
lender to see that a case of apparent necessity for a loan exists. Ibid.
5. Hence, where the master had received freight money, and, with the assist-
ance of the libellants, invested it in a series of adventures as a merchant,
partly carried on by means of the vessel, the command of which he had
deserted for the purpose of conducting these adventures, and money was
advanced by the libellants to enable the master to repair and supply the
vessel, and purchase a cargo to be transported and sold in the course of
such private adventures; and the freight money earned by the vessel was
sufficient to pay for the repairs and supplies, and might have been com-
manded for that use if it had not been wrongfully diverted from it by
the master, with the assistance of the libellants, it was held that the latter
had no lien on the vessel for their advances. Ibid.
6. Where a flat-boat, which was fastened to the bank of the Mississippi river at
night, was run down and sunk by a steamer, the circumstances show that
the steamer was in fault, and must be responsible for the loss. Ure v.
Coffman et al., 56.
7. It was not necessary for the flat-boat, in the position which it occupied, to
show a light during the night. Ibid.
8. When a boat or vessel of any kind is fastened for the night at a landing
place to which other boats may have occasion to make a landing in the
night, it is certainly prudent for her position to be designated by a light,
on her own account, as well as that the vessel making a landing may
have light to do so. But when a vessel is tied to the bank of a river,
not in a port or harbor, or at a place of landing, out of the line of cus-
tomary navigation, there is no occasion for her to show a light, nor has
it ever been required that she should do so. Ibid.
9. Maritime liens are stricti juris, and will not be extended by construction.
Vandewater v. Mills, Claimant of the Steamship Yankee Blade, 82.
10. Contracts for the future employment of a vessel do not, by the maritime
law, hypothecate the vessel. Ibid.
11. The obligation between ship and cargo is mutual and reciprocal, and does
not take place till the cargo is on board. Ibid.
12. An agreement between owners of vessels to form a line for-carrying passen-
gers and freight between New York and San Francisco, is but a contract
for a limited partnership, and the remedy for a breach of it is in the com-
mon-law courts. Ibid.
13. Where a libel for information, praying the condemnation of a vessel for
violating the passenger law of the United States, states the offence in the
words of the statute, it is sufficient. United States v. Brig Neurea, 92.
14. Where a steamer ran down and sunk a schooner which was at anchor in a
dark and rainy night, the schooner was to blame for having no light,
which, at the time of collision, had been temporarily removed for the pur-
pose of being cleansed. Rogers et al. v. Steamer St. Charles et al., 108.
15. But, inasmuch as the schooner was in a place much frequented as a harbor
in stormy weather, and of which the steamer was chargeable with knowl-
edge, it was the duty of the steamer to slacken her speed on such a night,
if not to have avoided the place altogether, which could easily have been
done. Ibid.
16. The fact that the steamer carried the United States mail, is no excuse for
her proceeding at such a rapid rate. Ibid.
17. The case must therefore be remanded to the Circuit Court, to apportion the
loss. Ibid.
18. Where the decree was for a less sum than two thousand dollars, the appeal
must be dismissed for want of jurisdiction. Ibid.
19. It cannot be doubted that a master has power to sell both vessel and cargo,
in certain cases of absolute necessity. Post et al. v. Jones et al., 150.
20. But this rule had no application to a wreck where the property is deserted,
or about to become so, and the person who has it in his power to save
the crew, and salve the cargo, prefers to drive à bargain with the master,
and where the necessity is imperative, because it is the price of safety.
Ibid.
21. No valid reason can be assigned for fixing the reward for salving derelict
property at "not more than a half or less than a third of the property
saved." The true principle ́in all cases is, adequate reward according to
the circumstances of the case. Ibid.
22. Where the property salved was transported by the salvors from Behring's
Straits to the Sandwich Islands, and thence to New York, the salvage
service was complete when the property was brought to a port of safety.
The court allowed the salvors the one-half for this service, and also frieght
on the other moiety from the Sandwich Islands to New York. Ibid.
23. To be seaworthy as respects cargo, the hull of a vessel must be so tight,
stanch, and strong, as to resist the ordinary action of the sea during the
voyage, without damage or loss of cargo. Dupont de Nemours & Co. v.
Vance et al., 162.
24. A jettison, rendered necessary by a peril of the sea, is a loss by such peril
within the meaning of the exception contained in bills of lading—aliter,
if unseaworthiness of the vessel caused or contributed to the necessity for
the jettison.. Ibid.
25. The owner of cargo jettisoned has a maritime lien on the vessel for the
contributory share due from the vessel on an adjustment of the general
average, which lien may be enforced by a proceeding in rem in the ad-
miralty. lbid.
26. Where the libel alleged a shipment of cargo under a bill of lading, and its
non-delivery, and prayed process against the vessel, and the answer set
up a jettison rendered necessary by a peril of the sea, and this defensive
allegation was sustained by the court, it was held that the libellant was
entitled to a decree for the contributory share of general average due
from the vessel. Ibid.
27. There are no technical rules of variance or departure in pleading in the ad-
miralty. lbid.
28. Where a mortgage existed upon the moiety of a vessel which was afterwards
libelled, condemned, and sold by process in admiralty, and the proceeds
brought into the registry of the court, the mortgagee could not file a libel
against a moiety of those proceeds. Schuchardt et al. v. Ship Angelique, 239.
29. His proper course would have been, either to have appeared as a claimant
when the first libel was filed, or to have applied to the court, by petition,
for a distributive share of the proceeds. Ibid.
30. Neither rain, nor the darkness of the night, nor the absence of a light from a
barge or sailing vessel, nor the fact that the steamer was well manned
and furnished, and conducted with caution, will excuse a steamer for
coming in collision with a barge or sailing vessel, where the barge or
sailing vessel is at anchor or sailing in a thoroughfare, but out of the
usual track of the steam vessel. New York and Virginia Steamship Com-
pany v. Calderwood et al., 241.
31. Therefore, where a collision took place between a steamer and a sailing
vessel, the latter being out of the ship channel, and near an edge of
shoals, the steamer must be responsible. Ibid.
32. The sailing vessel had no pilot, and did not exhibit an efficient light. Al-
though these circumstances did not exonerate the steamer, yet they make
it necessary for this court to say that an obligation rests upon all vessels
found in the avenues of commerce, to employ active diligence to avoid
collisions, and that no inference can be drawn from the fact, that a vessel
is not condemned for an omission of certain precautionary measures in
one case, that another vessel will be excused, under other circumstances,
for omissions of the same description. Ibid.
33. In order to create a maritime lien for supplies furnished to a vessel, there
must be a necessity for the supplies themselves, and also that they could
be obtained only by a credit upon the vessel. Pratt et al. v. Reed, 359.
34. Hence, where a running account for coal was kept with a vessel trading upon
the lakes, the master of which was also the owner, it does not appear
that the coal could be procured only by creating a lien upon the vessel.
Ibid.
35. In a contest, therefore, between a libellant for supplies and mortgagees of
the vessel, the latter are entitled to the proceeds of sale of the boat. Ibid.
36. This is under the general admiralty law. No opinion is expressed as to the
effect of the local laws of the States. Ibid.
37. The decision in the preceding case of Pratt, &c., claimants, v. Reed, again
affirmed. Tod et al. v. Steamboat Sultana, 362.
1. Where a sale was made of merchandise, and two parties, viz: Roots & Coe
as one party, and Henry Lewis as the other party, both claimed to be the
vendors, and to be entitled to the purchase-money, it was proper, under
the circumstances which existed in the previous relations of these parties
towards each other, for the court to instruct the jury as follows, viz:
"1. If they shall find that the merchandise had been made subject to the
order of Roots & Coe; that it was sold by them in their own name;
that at the time of sale it belonged to them, or that they had an
interest in it for advances and commissions, and an authority as agents
to dispose of it; and that it was delivered to and received by the vendee
in pursuance of such sale, then Roots & Coe were entitled to the pur-
chase-money:
"2. That although the jury may find from the evidence that the merchan-
dise was sold to the purchasers by Henry Lewis, yet if they also find
that it belonged to Roots & Coe, or to the persons for whom they acted
as agents, and if the latter, that Roots & Coe had an interest in and
control over the merchandise to cover advances and commissions; that
the purchasers subsequently promised to pay Roots & Coe the pur
chase-money, and that the suit was instituted before the price had
been paid to Henry Lewis, then Roots & Coe were entitled to the pur-
chase-money." McCullough et al. v. Roots et al., 349.
2. The existence of warehouse receipts, given by another person, was not a
sufficient reason to justify the purchasers in refusing to pay for the prop-
erty which they had purchased, and in the possession of which they had
not been disturbed. Ibid.
3. Under the circumstances of the case, Roots & Coe had a right to consider
Henry Lewis as their agent, and to adopt his acts. The purchaser had
no right to allege that Henry Lewis was a tort feasor. Ibid.
4. Roots & Coe, having made the contracts, and having an interest to the ex-
tent of their commissions, had a right to maintain the suit. Ibid.
1. Where an appeal is taken to this court, the transcript of the record must
be filed and the case docketed at the term next succeeding the appeal.
Steamer Virginia v. West et al., 182.
2. Although the case must be dismissed if the transcript is not filed in time, yet
the appellant can prosecute another appeal at any time within five years
from the date of the decree, provided the transcript is filed here and the
case docketed at the term next succeeding the date of such second appeal.
Ibid.
3. Where the judgment of the Circuit Court, in an action of ejectment, was
against the defendant, in which nominal damages only were awarded,
who sued out a writ of error in order to bring the case before this court,
this court cannot grant a motion to enlarge the security in the appeal
bond, for the purpose of covering apprehended damages, which the plain-
tiff below thinks he may sustain by being kept out of his land. Roberts
Y. Cooper, 373.
1. By the rules and practice of common-law courts, it rests exclusively with
the court to determine who is qualified to become or continue one of its
officers, as an attorney and counsellor of the court; the power being reg-
ulated, however, by a sound and just judicial discretion-guarding the
rights and independence of the bar as well as the dignity and authority
of the court. Ex Parte Secombe, 9.
2. The local law of the Territory of Minnesota has regulated the relation be-
tween courts and attorneys and counsellors, but has not essentially
changed the common-law principle. Ibid.
3. The Minnesota statute authorizes the court to dismiss an attorney or coun-
sellor if he does not maintain the respect due to courts of justice and judi-
cial officers, or for not conducting himself with fidelity to the court. Ibid.
4. The Supreme Court of the Territory dismissed the relator from the office of
counsellor and attorney of the court, stating in the sentence of dismissal
that he was guilty of the offences above mentioned, but not specifying
the act or acts which, in the opinion of the court, constituted the offence.
I bid.
1.5. The order of dismissal is a judicial act done in the exercise of a judicial
discretion vested in the court by law; and a mandamus cannot be issued
by a superior or appellate court, commanding it to reverse its decision,
and restore the 'relator to the office he has lost. Ibid,
6. Where a fund is brought into court upon proceedings under a bill to fore-
close a mortgage, it is altogether irregular for the court to order an
investigation into the general accounts between the attorney and his
client during past years, and to order that the attorney shall be paid,
out of the fund in court, the balance which the master may report to be
due. The persons interested in this, decree were not properly before the
court as parties. Wolf et al. v. Lewis, 280.
7. The competent parties to agree that a case shall be settled, and the writ of
error dismissed, are usually the parties upon the record. If either of
ATTORNEY AT LAW, (Continued.
them has assigned his interest, and it be made known to the court, the
interest of such assignee 'would be protected. Platt v. Jerome, 384.
8. But where there was a judgment for costs in the court below, and the at-
torney claimed to have a lien upon such judgment for his fees, it is not a
sufficient reason for this court to prevent the parties from agreeing to dis-
miss the case. Ibid.
1. A deed speaks from the time of its delivery, not from its date. United States
v. Le Baron, 73.
2. The bond of a deputy postmaster takes effect and speaks from the time that
it reaches the Postmaster General and is accepted by him, and not from
the day of its date, or from the time when it is deposited in the post
office to be sent forward. Ibid.
3. The difference explained between a bond of this description and a bond
given by a collector of the customs. Ibid.
4. The nomination to an office by the President, confirmation by the Senate,
signature of the commission, and affixing to it the seal of the United
States, are all the acts necessary to render the appointment complete.
Ibid.
5. Hence, the appointment is not rendered invalid by the subsequent death of
the President before the transmission of the commission to the appointee,
even where it is nécessary that the person appointed should perform cer-
tain acts before he can legally enter upon the duties of the office. Ibid.
CALIFORNIA.
1. When a grant or patent for land, or legislative confirmation of titles to land,
has been given by the sovereignty or legislative authority only having the
right to make it, without any provision having been made, in the patent
or by the law, to inquire into its fairness between the grantor and grantee,
or between third parties and the grantee, a third party cannot raise, in
ejectment, the question of fraud as between the grantor and grantee.
Field v. Seabury et al., 323.
2. A bill in equity lies to set aside letters patent obtained by fraud, but only
between the sovereignty making the grant and the grantee. Ibid.
3. Such a patent or grant cannot be collaterally avoided at law for fraud. Ibid.
4. The act of March 26, 1851, (California Laws, 764,) makes a grant of all lands
of the kind within the limits mentioned in it which had been sold or
granted by any alcalde of the city of San Francisco, and confirmed by the
ayuntamiento or town or city council thereof, and also registered or re-
corded in some book of record which was at the date of the act in the
office or custody or control of the recorder of the county of San Francisco,
on or before the third day of April, one thousand eight hundred and fifty.
Ibid.
5. The registry of an alcalde grant, in the manner and within the time men-
tioned in the act, is essential to its confirmation under the act. In that
particular, the grant under which the plaintiff in this suit claimed, is de-
ficient. The defendants brought themselves by their documentary evidence
within the confirming act of March 26, 1852. Ibid.
6. Where a claimant of land in California produced documentary evidence
in his favor, copied from the archives in the office of the surveyor gen-
eral and other original grants by Spanish officers, the presumption is in
favor of the power of those officers to make the grants. United States v.
Peralta et al., 343.
7. If the power be denied, the burden of proof is upon the party who denies it.
Ibid.
8. The history of California, with respect to the power of its Governors to
grant land, examined. Ibid.
9. The boundaries of the tract of land, as decreed by the District Court, affirmed.
Ibid.
10. That the Spanish grants of land in California were large, is no reason why
this court should refuse to confirm them. United States v. Sutherland et
al., 363.
11. A grant of a tract of land known by the name of El Cahon, lying near the
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