CARAO V. GUDlARAES.
783
for the ship's delay after the berth was procured on DecemQer ls;t. But as some time must have been taken in such removal, I add one day's detention for this cause, making in all six days, which, at the rate of $51 per day, the rate agreed on, gives $306, with interest from December 6, 1879, for which the libellants are entitled to judgment; but as their claim was in part upon a basis not sustained, and another portion of it, viz., that for loss of freight, was abandoned, costs should not be allowed. See Reed v. Weld, 6 FED. REP. 304.
CARAO
v.
GUIMABAES.-
.(lH8t't1ict Cowrt, E. D. PenMyllJania. December 12,1881.) 1. SHIPPING-FREIGHT MONEY, RECOVERY OF.
In a bill of lading reciting "the weight and quantity unknown; not accountable for the cork on deck and bursting of bundles, several of which open for stowage," the obligation as respects delivery in ,. good condition" is 8Il obligation for proper stowage according to tIle usual custom of stowing such cargo: and where the weight of evidence justifies the belief that this custom was complied with, and delivery of the cargo was proved, held, that the master was entitled to recover the freight money.
Libel by the master of the bark Samuele against Jose de Bessa Guimaraes to recover freight on 800 bales of cork-wood. The bill of lading recited "the weight and quality unknown; not accountable for the cork on deck and bursting of bundles, several of which open for stowage." Respondent defended on the grounds (1) that there was a short delivery; (2) that the cork was injured by being stowed in contact with salt, which formed the balance of the cargo, when the custom was to separate it from the salt by mats or boards; (3) that the captain had unwarrantably cut open a large number of bales, to the great injury of the cork. The testimony was conflicting as to the delivery, the custom of stowage, and as to the necessity for cutting the bales. John G. Johnson, for libellant. Chas. Gibbons, Jr., for respondent. BUTLER, D. J. The claim is for freight for carrying cork-wood. The defence set up is (1) short delivery; (2) unwarranted cutting of lReported by Frank P. Prichard, Esq., of the Philadelphia bar.
784
FEDERAL REPORTER.
bales; and (3) failure to deliver in "good order and condition. No question of law is involved; and very little space need be occupied in dit:lcussing the facts. An analysis of the testimony would require much time and labor, and be of little value. It is sufficient to say that, in the judgment of the court, neither of the allega tions is sustained. Unless the master and mate have sworn falsely, all the cargo shipped was delivered; and there is nothing to justify a belief that they have sworn falsely. A fair construction of the contract (in the light of surrounding circumstances) seems to justify all the cutting of bales shown by the evidence. The object of cutting, and of the provision respecting it in the contract, was to provide for convenient stowage. It does not appear that any more bales were cut than was necessary for this purpose. The obligation of the libellant, as respects delivery in "good condition," was an obligation for proper stowage, and did not extend beyond a requirement to comply with the usual custom of stowing such a cargo. The weight of the evidence justifies a belief that this custom was complied with. While the testimony here is conflicting, and the respondent's case was prepared with unusual care, and urged with much ability, a very patient examination has satisfied me that the weight of the evidence is with the libellant. A decree must be entered against the respondent for freight, with . costs.
UNITED STATES V. MULLAN.
785
UNITED STATES V. MULLAN
and others.
(Oircuit Court, D. Oalifornia. February 27, 1882.) 1. PUBLIC LANDS-KNOWN }lINES-COAL.
Whatever may have been originally the proper construction of the word "mines," as used in the pre-emption act of 1841, (5 St. 456,) the act of July 1, 1864, (13 St. 343,l gave a legislative construction to the term, which thenceforth attached to all known" coal-beds or coal-fields" in which no interest had before become vested, and withdrew such coal lands from the operation of all other acts of congress. 2. SCHOOL AND COAL LANDS-STATE SELECTIONS.
After July 1, 1864, known coal lands were not subject to selection by the state, in lieu of sections 16 and 36, for school purposes; and the secretary of the interior had no authority to list such lands to the state on such selections. S. PATENT LANDS.
Where the state selects a tract of land in lieu of a like quantity of unavailable school lands, which tract so selected is not subject to selection, and the same is listed over to the state by the secretary of the interior, and by the state thereupon patented to private parties, a court of equity, upon a bill filed by the United States, will annul the selection, listing over, and patent, whether the unlawful acts arose out of fraud, inadvertence, or mistake, or errors of law committed by the officers upon known facts, as to the authority of the state to select or the secretary of the interior to list over. ... BILL FILED BY ATTORNEY GENERAL.
Where a bill in chancery to annul a patent to land is filed in the name of the United States, having the sip;nature of the attorney general of the United States, subscribed by his authority, the court is authorized to entertain the bill. Ii. VESTED RIGHTS-POWER OF CONGRESS.
The state has no indefeasible vested right to select lands in lieu of sections 16 and 36, from any particular class of lands, at any time before selection actually made. Until selection, congress may withdraw any lands from the operation of laws permitting their selection.
In Equity. Philip Teare and W. H. L. Barnes, for complainant. B. S. Brooks, for defendants. SAWYER, C. J. This is a bill in equity to vacate a state selection, 8. listing to the state by the secretary of the interior, and a patent issued by the state in pursuance thereof, to the north half of section 8, township 1 N., range 1 E., Mount Diablo meridian; the said tract having been selected by and listed to the state as school lands, in lieu of a half section of one of the sections 16, which was for some lawful reason unavailable to the state. The claim is that, at the time of the selection, listing, and issuing of the patent in question, the land was known coal lands, not subject to selection in lieu of school v.l0,no.8-50
