FED&lU.D· :REPORTER.
uo fespe.ct different. She did bring up agaiust the shed, .touching the. schooner. The latter foundered in the attempt to extricate herself from a posi,tion ,of imminent danger. That. attempt she had already upon:, apd the result would have been the same if additional fasts sufficient to secure ship hadbeen pnt out, and her further drift ing thereby arrested, just as it was a very short time afterwards by her coming in contact with the sheds.· The negligence, if any, to be imputed to the Austria, is negligence in the original mooring; and of this, for the reasons a.ssigned, I do not find her guilty., Libels dismissed.
THE FlUTHEOFll'.
(District Court, D. California. February 8, 1881.) WAGEI!-'- PAYMENTS TO lUll AFFIRMATIVELY ESTABLISHED.
the seaman shows himself entitled to a certain amount of wages, it 1& for the master to show payment in whole or in part; and'where the testimony isconfticting and equally balanced on the question of payments claimed by thlt master to have been made, but of which there is no corroborative evidence, and to justify rejecting the seaman's eVidence, the case must be decided against the party: on whom rests the burden of oroof and duty of making out hi'S case affirmatively. .
Daniel T. Sullivan, for libelant. A. P. Van Duzer, for claimanl·. HOFFMAN, D. Thereis no dispute as to the amount of wages. earned by the libelant on the two voyages., viz., $184.94. The captain ,claims to hav:e paid him on account, various sums, the' greater parto! which the steward. admits.. The master took no receipts, and kept no accounts. He fails to produce a single written memorandum of ',any .payment whatev.er. The man having shown himself entitled to. -a certain sum, ,it ,is for the masoo:z:: to show payment in whole or in part.;: The; te.stimony being conflicting, and there being no circumstances developed which justify me in rejecting the steward's -8videna.e,.I must decide ,thematteragaiust. the party upon whom rests the burden. of pl!'oof and the dllty, of making; out his case a:'ffirm.:atively. T..qe,man, admits having:!received. He charges the capt!l.in ,$L50.·for a ,pig "wm.This,does uotappear to be disputed. I think, too, the. p,fet,tyclearly:, that d.ol-
laifs' should·the cMrg.ed· tQ.him,·for time lost, and one dollador a'boat; making in.all $32.50 to,b,8iledtlctedfromgroslJ earnings. If themas-' tElr is not allQwed' aU credits payments On account to :which he is entitled,. be has only himselfto blame for ·the·loosemalmerin which he conduGted his bl1Siness. It seetns incredible thata.:.person' owning several vessels, and commlln.ding one, should harve failed,to: obtain'receipts'or make any wrIting whatevei' shoWing the numerous payments hecbims to have mOrde. Thetnaster alsocla.imsanoffset against the stew-aid on account of the balance of,s. lot of cigars given' or sold to the steward a year and a half ago" atihe .beginning of a former voyage. It is not quite clear from the oaptain's statement what the transaction was;-,-whether a sale to the steward,pwith the' right on the part of the latter to return as many of the cigars as he' should he unable to dispose 6f, ora bailment to him to sell them'on the account. " The steward denies the whole matter;andbl·· sists that he never bought or had anything to do with the oigars;' There is no written memorandum 'olany kind of nor' ahy corroborative proof;' I must· apply the saine rule to this claim as. to the payments on account.' The case is even stronger; .for this demand is claimed ,to have arisen at the or in the course: of a voyage long since ended, and for whi.chfullsettlement was'n1ade, and the man paid by a draft'on this city. Two voyages have sin{le been made by the libelant in the s8>ine'vessel, and it:.is to hisciaitn f<>r wages on these that the demand in question is set up as an offset. It is evidently a stale and, I think, doubtfulcraim... rtis oe,rtltinly llot established by a preponderance of affirmative proof. The most that can be said is that the proofs are '", , :' , .I shall allow the claim for $6.50 paid by the master to one Rich. ards atlibelant's request. His testimony is corroborated byth,at of another witness. '., . ........ : ,;. :' '.: ] The four dollars for a woolen shirt I cannot allow, for the reasons alJove.giyen,. tWtt .he j tl,l;e, m!tsterhas 'no testimony but his own oath, steward. ' ,." '. I shall allow the steward $8.75 which he appears to have paid for a chart, etc., furnished to the vessel. He bought the articles, perhape, without authority, but the captain ratified the purchase, by accepting and appropriating them, and he admits they were needed by the vessel. I at first thotlght the captain's claim for $14 for a gun purchased by the steward should be peremptorily rejected, as the credit seemed
804:
FBDBBAL .BlIPOBTBB.
to have been given by the vendor to the man; and the master has neither paid nor was under any legal liability to pay for the steward's purchase.! On examining my notes, however, I find that the clerk of the veudor swears that the gun was bought by the steward in the captain'!! name. If so, the credit was given to the latter,-a view of the transaction corroborated by the fact that the gun was charged in the vendor's books against the master, and not against the steward. The master, on being applied to, seems to have assumed the liability. My recollection is that he only agreed to pay it out of the steward's wages; but my notes contain no such qualification. The gun has since been returned by the steward to the vendor, who seems not to have rescinded the sale, but to hold the gun for his lien. It would evidently be unjust to deduct this amount from the steward's claim, unless the master pays it; and he may very probably defeat any action by the vendor against him. On the other hand, if· the vendor' should recover from the master, injustice will have been done him by<a.refusal to recognize his liability and to allow him the deduction claimed. I shall, therefore, hold this item in abeyance. If the steward will produce a memorandum from the vendor rescinding the sale, or accepting a sum in settlement thereof, and releasing the master, I will disallow the deduction. Otherwise, I shall impound the sum in the registry until the master's liability is determined. The accounts will therefore stand: Amount earned, Less payments, etc., $32.50, Add Dayment
8134 94 32 50 $102 44 8 75 $111 19 6 50
for chart, $8.75,
Less $6.50, paid by libelant's request,
8104 69
--For which Bum a. decree will be entered, but of which $14: will be retained in the registry.
GOLLINSOB
801
COLLINSON
t1.
JACKSON and others.
(Oircuie Court, D. Oregon. November 1,1882.)
t.
AMENmffiNT ON FINAL HEARING.
An amendincntallowed to the bill on the l1nal hearing. stating the nIne of the matter in dispute to be over $500. A voluntary conveyance of real property by a husband to his wi.fe through the intervention of her father, which left him unable to pay his debts, or if made for a valuable consideration, as claimed, it being also made with the intent to hinder and delay creditors, to the knowledge of the wife, held. fraudulent.
2. FRAUDULENT CONVEYANCE.
S. PROMISlIl 0,. WIFlIl TO HUSBAND.
At common law a husband and wife cannot contract with one another, and therefore the promi8e of the wife to release her right of dower in certain property of the husband's is not a valuable consideration for a conveyance by him to her of other property. ·· BILL BY JUDGMENT CREDITOR TO
SET ASIDlIl CoNVlIlYANCE.
The assignee of a promissory note brought an action against the maker, in this court, and had judgment therein, and then brought a suit to set aside a certain conveyance of the judgment dehtor to his wife &II fraudulent. Held, that the wife was entitled to shOW as a defense to the suit that the jUdgment was void for want of jurisdiction in the court to pronounce it. 6. ACTION IN THE NATIONAL COURTS BY THE ASSIGNEE 0,. A PROMISSORY NOTlll.
The allsignee of a promissory note may now sue in the national courts without reference to the citizenship of his assignor, (18 St. 470;) and if the assignment is absolutely and legally made, the motive which induced it in nl> way affects the right of the assignee to sue in said courts. 8. CoNVEYANCE TO HINDER, ETC., CREDITORS-GOOD BETWEEN THE PARTJES.
In Equity. Suit to set aside cl1nveyance. M. W. Fechheimer and Hpnry Ach, for plaintiff. T. B. Handley, for the defendants Beauchamp and Mary Jackson. DEADY, J. This suit is brought by Thomas Collinson, a citizen of California, against Eugene S. Jackson and Mary Jackson, his wife, . and Tilden Beauchamp, her father, all citizens of Oregon, to set aside two certain conveyances of over 160 acres of real property, situated in Washington county, Oregon, as being made to hinder, delay, and defraud the creditors of said Eugene Jackson. The case was heard upon the bill, the answer of the defendants Mary Jackson and Beauchamp, and the replication thereto and the testimony. As against v.14,no.6-20