cOpies' on"b'ltnd;and thattbe,balanee oftbose received ftqmtheprinter had been disposed of. 'l'binvouldtend to show that '4;875 'copies in all had been disposed of, and'S,375of them in this country, which l'night displace sales of thl'lplaintijj"s book to that extent, on which his profits might have been $2,116.25. But this state'ment of. Gronlund would no't be evidencefl.gainst the other defendant, a cOl'poratilm, that the fact was as stated, although he was an officer of the corporation, and might act for it in some respects. It might' tend to impeach his credibility as to what he had testified to in fhi!'! case, but that would not furnish evidence of facts of which there was no other proof. Without this statement, there 'was nO evidence that more than 2,875 copies had been disposed of·out of the possession of the deor thatxnore than 1.375 had h(Jen disposed ofin this country, aside',from the evidence of diminution of the plaintiff's sales on the appearance of the defendants' book. Thedefendants cannot be holdeI'!. together. for more than is proved against both;. and there is no competent evidence against both ofany greater damage than thatof 81,064.32 from the diminution of sales. This 3:\'I1y 17, 1889jand the plaintiff is not entitled to recover for anything done by since that time. They stopped, or claim that theY'did, at that time;. but the Qooks which they had disposed of previously may have affected the sales afterwarcJg. and down to, ·tbe time of the verdict. ,While the verdict is ,clearly right in being for the plaintiff. it ia as clearly excessive for all the damages found by it above 81.064.32. Tha.t is the uttermost tf) which the defenrlantscan, on the proofs submitted, be justly together held. As the jury have found morA than this, withQut being led by any error made .apparent, they have found this; lind the plaintiff' may cnre t.ha verdict of the excess by remitting·it,if he chooses to do so. 10he plaintiff, w:thin .10 days, .ples a remittitur of all damages beyopd, $1,064.32, let the motion be thereupon overruled, a.nd the stay be vacated. Ifhe omits so do, 'let thev6l'dict and judgment thereon beset. aside.
THE CAPTAIN JOHN. 1 UNl'.l'ED STATES 11.
TBm
CAPTAlN JOHN.
Oourt. L'UNITBD STA'l'lIS
E,. D.New York. JanulU',Y 80.1890.) FeBS·
.A J;Darshal mayreceive more;than, $2.50 .per aay fOIr custody fees on proof to the court ohhe existence of extraorqinary requiring extraol'dinarr ex. periditure morder·to maintain his custody. '
B.1hKB.,
A s.ml¥lBteamer was libeled by the government and attached by the marshal, Who plaoed extra·keepers on her, and, on taiBtion dfhis bill. sougbt te' 12.50 for . 1'·
c'·
','..
' .
,
lReport6(}b1Edward.G·.Benedict,Ei!q.·
each oftbree keepers tbe day, and 12.150'for eacb of two keepers' M' n,gbt. ,A,l'lilference being ordered to 'take Proof" as to the items in the marshal's bill"U · .,peared that 'hen the steamer was attached she was'lying at a doolnvl.thout 'crew, engineer, or provisions, and no evidence was given from which an intention on the part of the claimants to remove her from the marshal's custody could be inferred. The marshal showed that the proceeding against the vessel had been charaoterized by the treasury department as an important one, and, that he had informed t.he district attorney of bis employment of extra keepers, Which had been approved by the latter. tbat the testimony did not show a state of facts requiring an extraordinarye:lq)tlllditure, and that the marshal was entitled to $2.50 per day for custody fees, but no more. 8. SAME.
Pers/i'Verance, 22 Fed. Rep. 462,
A marshal cannot oharge $2.50 custody fees for the day and $2.50 for night.
T1wJ
SAME-REFERENOB TO AsOBRtAIN AMOUNT Oll' FEES-COSTS OF REFERENOE.
In a proceeding by the government to obtain a deoree of forfeiture against a vessel, when the forfeiture 'is remitted oil condition that olAimants of the vessel pay all costs and expenses, the ol;n!ts of a refereuce to, asoertain the amount of the marshilts fees must be Qome byolaimants, even though, on such'reference, the sum claimed by the marshal has been reduced by tne court to a sum less than what the ,claimal;lts were at all times wHling to pay. , OnPElttlement of a prooeeding by the;goyernment to obtain forfeiture of a vessel, the t!ilitshal is entitled, ,under Rev.St. i,1l29" to commissions O. tole valu,e of the Tessel proceeded against. .' " ' ." .
5.
SAME-.G0MMISSIONS-REV. ST.
S 829-S11TTLEMENT
Oll' FORFEITURE ,PROOEEDING.
In Admiralty. On hearing to aSciertain amount of marshal's fees. H. D. Hotchkiss, for :cla:irnant. ' , . Charlea M. Stafford, U; is. Marshal, in pro. per. BENEDICT, J. The steRm-boat Captain John was seired by the collector of customs for violations of law which subjected her b forfeiture. A libel was thereafter filed against harto enforce and on October 4, 1889, she'wa$ seized by:tne'marshal by..virtue of process in rem, issued in accordande'withtbe prayer of the libeL, ,,·Thereupon proceedings wete taken under the statute to obtain a of the forfeiture, and the secretary oHhe treasury remitted the forfeiture, and directed the boat to btl released on the claimant's paying al1.00sts 8:nd expensesitlcurred in the Case by the'United States. The marshal accordingly presented his bmitb thecoux:t for allowance, which being objected to by the claimants, a reference was ordered to take proof as to the facts touching the items in dispute. The..only disputed items are these: For three keepers, at $2.50 each day; for two keepers, at $2.50 each night; for pumping, $25. Section 829 of the RevfsM' Statutespt0vides that there shall be allowed to the marshal, for neces,sary e,x.penses .of vessels, or other property 'aUMhed'or lIbeled' 1D' admIralty, .not exceedmg $2.50 a day. 'fhis interpreted to apply to expenses of maintaining the actual custodY' of vess'els by the marshal under ordinary circumstances. It has no a,pplicatioDr·to 0therkinds ofexpeuses, nor was "it to limit of e*peps,fin cases, such as appeared in the ease o(The F. Merwi7i., 10 Ben. 403., or, for instance, in a case where it is mage to appear that the removal of the vessel from the .cnsto\lY,or control of theillarshal hl;isJ:>een threatened llY a mob, or by persons, without authority of law, intending to use force, or where there is reasonable ground ·to believe that:the. removal. of. the vessel from the
. THE CAPTAtN .TOHN.
custody of the marshal is contemplated by means of fraud, deceit, or bribery. In such cases the marshal may, in my opinion, receive more than the sum of $2.50 per day, upon proof to the court of the existence of extraordinary circumstances, reqniring the extraordinary expenditure in order to maintain his custody. The testimony in this case does not, however, in my opinion, show a state of facts calling for extraordinary expenditure. The vessel was a small steamer. She had on boarp 103 tons of coal, but she had neither crew nor engineer nor provisions. She was, when attached, lying at a wharf in the Atlantic dock, from which it seeniS clear that it would have been impossible for the claimants to have removed her, so 10nK as a single keeper was present, on board; and there is nothing from which an intention to remove the vessel from the marshal's custody can be inferred. The marshal has sought to justify the employment of extra keepers by proof that the proceeding against the vessel has been characterized by tnetreasury department as an important one; that he bad informed the district attorney that 'he had put three keepers' in charge, and his employment of extra keepers was approved by the district attorney.' The evidence is not sufficient to throw upon the district attorney any responsibility for the empbYnient of extra keepers; and; 'besides, in !tIl such cases marsbal's right to charge for extra keepers must depend upon the facts made to appear to the court. As already stated, I am unable to find from any facts proved in this case that there was a necessity requiring tpeemploymentof extra keepers. The m,arshal is entitled. to $2.50 per day forthe days the vessel was in l:iiscustody. but no niore. That heciJ.nnot charge $2.50 for day and $2.50 for night was decided by tjJiscourt in thec8:seoff'he Per8everance,22.Fed. Rep. 462. This view of the case, as I understand the briefs, renders. unnecessary the consideration of any of the other questions raised by counsel in regard to keepers' fees. . ". . . . . . . 1n regard to the charge of $25, expense of pun)ping, it app'earsthat - the owners of the vessel maiiltained a man of their own on board, who did some pumping, and, all that appears, was able to do all the pU':llping required; for there was no serious leak 01' sudden emergency demanding unusual pumping. It also appears that $10 was paid by the keepers forsOIne P11mping,-$3 toa longshoreman. and $7 to an Italian. The payment of this money is positively sworn to; a,nd, whileit is easy to see Why the receipt said to have been taken from the Italian was not produced, still I think the $10 may be allowed upon the' proofas it stands, especially as the expense of sending the case back to th,e referee for further proof on this point would probably exceed the .10 in ON .MOTmlJ TO CQMPEL'fARSHAL TO PAY COSTS OF REFERENCIil.
(Febl")lary 20, 1890.)
BENEDI¢r; J. In this action, which is a proceeding in admiraItyon ihepart ()fthe United States to obtain a decree of forfeiture a.gainst the
tiO Of the laws {)f the Uijited States, and lI-riswer, au the secre4tryof treasury ,0: petition, aspro:vided 'by.law; fora remission of'the for'; ff'lit'tlire, whichwaElthereaftergranted, upon the cqnditi,on that the claimpay all costs and expenses incurred the ca!;!!:! by the United States. In., ascertaining the. amount of the costs. and expenses so. incurred by the Unit.e4 States, a question. arose as to the amount of' the marshal's costs.' .T.llis questiori ..was.Ilotpresented .in the ordinary way, by a taxationof}he and an appeal therefrom to the judge,btit, without objection, was to the court in the first a controversy existed instance. apd, when it appeared to the court liS to the facts, the a reference toihe to take such testimony as might be offered bearing upon the amount of the marshal's having been taken and reported to the court by costs. ,Much the clerk, the Illatter was argued before the when, by the decisthe item in the marshal's costs of expenses of custody ion was The now. comes before the' courtnpon two rnised):>ythe claimant, who thatthe ex-, other pensesof.tpe'reference abovementioned should. be directeq to be borne by the mlll'Shal, ·upon the grollnd of the extensive. r.e\luction made by the couJ;'tin:th,EHnarshal's bilt; as fact that the claimants were always willing to allow the marshal,for his expenses of custody more tijan was a:Ilowed by ,the cOurt. , ,Upon thisquesiion my opiqioil is :thatthe be comThose'expenses were a pelled to Qljar theexpel1ses necessaryp to the casepelJdiJlg qourt, in the marwhich lnade a reference necesshal was. ,riot ,a, party. UnitedStatl¥3 and the claimant. lam unable to sary was discover whjcli allY part of the qosts ofthesuitcan be charged uporithe marshal. In' ordinary cases, the expense 'of ascertailling the marspal's, costs by the the clerk, statute, is never cparged. tije marshal, but which is forms part 9£ thej:losts of the ca1';lse,. to paid by So, in in .ordinary cases,owing this case, to the natureqf ,the disputew;h,icb ,arose about the, marshal's bill, th,e, expense mU,st b,eJ.)o;rI1e by one or tlie other, of the parties to the litiga:' the claiwant 'is the party to tion, and bear. it. '. ' , ' ,,' . ..' ., ' ,. ,The is raised bY, who by virtue of section 829, to upon the valu,e of the prqceeded ' The. section 829 on isas follows: "When the 'debt or claim in admiWty is settled by the parties without the sale of the property, the marshal shall be entitled to a commissIon of one per cent. on the first five hundred dollarl'l, by the claim or decree, and one-half of one per 'cent.'on: tih'e excess of the sum thereafter from live llUndred dollars." , The contention of the claimant is that this statutory provision is COllfined by its terma:to cases aLa persqnal demand, ip a ,proceeding. to collect a debt,\)t ,dePlau,d, and, does"not cover a case where the govern; &wamsbip Captain John for
any
.' THE CAPTAIN
JOHN<.
\151
ment is 'seeking to enforce a forfeiture; and it is said that never until now has a marshldclaimed commissions'in'sucha case! There is a mistake here. In the case of United State8 v. The Florida, decided in the southern district of New York in December, 1854/where the language of section 829 was brought to the attention of the by Mr.dEvllrts, ,the, was held, to be entitled to commissions, under a state of facts precisely similar to the facts of this case. This decision has never, so far as 1 know, been questioned in this circuit, and I see no for ,declining to apply it in, the ,present case. The word "claim," as used in the statute, can, with entire propriety, be held to include a claini of forJeiture to the a proceeding in rew-.a,gainsfavesseli ana the claim is settled by the parties, within the meaning of the statute, whepJh!'l United States cot;lsents to relinquish its claim to the Vessel on ,payment of.costs. Unless the marshal can be compensated by virtue of this statute, be will receive no compensation whatever for thecareanli ,$k. the ctlstody of this vessel for a ,period of 39 days. :ItJ eannotbe supposed· to have been. the -intention that such a: should be rendered without compensation. Says Mr. Justice BLATCHupon tbisstatute:, " , . "The theory of this allowance is that the marshal in an A(1mi ralty suit in rem has attached the property, and holds it. and that theIl:without ,sale of the property by the marshal, the controversy is 80 disposea of by the par'tiel! that the marshal iscalled upon to give up of the property, that hel9seB -the fees i for: selling it and paying over the money. In such ..a,paBe h."is.,allowed a commission, which is intended as a compensation for .hisriBkand:r'l&ponsil)i1ity. just ""the final, proctll\s"awI .the allowed on.the, sale of property inadmlr,alty, are each of 'acbmpensation for risk and reS'ponsibility, not merely inselli'ngthe proper·ty,blitin holding possesllionOfft under he can h'ave ·otber compensation for keeping safely the properly: expense of,keeping it, i)ot6,xceeding $2.50 a' 'day', can be 'allowed only when to a keel?er." In re Johnston; 8 Ben'; 201. ' . . ', ' My conciusion, therefore, is that the' expenses of the referezice above fmenilioned must be paid'out of the fund now in the registry, in place of ,the,' vessel, and that, in' addiHan to the costs y, aUol'ted the marsbal, bEl entitled to the' commission provided by section 829, to be 'oaJ.cu1at!:ld'lipon th,e vahifl,of(he v¢SSel'proceeded'p.glUnst. lfthe parties upon t4eyalp'e o(the to tbe clerk wiU ;be'ordered to ascertain the same.
is
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I'N ot l'eporl.eiL
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FEDERAL REPORTER, vol.
41.
Ross et al.
'V. SOUTHERN COTTON-OIL
Co.
(Oircuit OO'lI/rt, E. D. Louisf.ana. January 21, 1890.)
Trial in the federal circuit court, on appeal in admiralty caslls, being de novo, appellantmayobject to damages found by a commissioner In the' district court, to n,oexceptions were filed. lI. SAM"'OOSTS ON ApPEAL. Toough thl!rdecree is reduced in amount,oosts of appeal will be 'given against appe¥lI:nt,.where the. reduction is by striking out items to which no, objection was made below.'
Novo.
In Admiralty.
Libel for damages. f<,>t-appellant.
On appeal from district court.
E. D; fJrd:ig, for appellees:
c9wW,in;r. t,brough Steinhardt & Co., of New OJ'leami, respondent loaned to thern Cotton-Oil Company the barge.Jim my, for the use and transat tbe lJort of New Oi'leans, upon the wa.ters of the Missis· sippi river, lor the accommodation and use of said oil company." ',['0 this'l'e$pondent answers-:"That "hll,matters and things therein alleged are In great part untrue, and pleaded; and the trutb.is thatdul'lng the month of Decem· bel', baving sold a large quantity of cotton-seed meal to L. Stelt:Jbardt & Co., of New Orleans, and blling unable t9 deliver it on shipboard as prolDptl'y and quickly as they desired, respondent not being able t() furnish suftleklrit transportation, that in' consequence thereof said Steinhardt & Co. said to respondent's local manager-fA. C. Landry, · If we procure a barge. can you [meaning respondent] deliver the meal?' and respondent tbereupon replied that it could; and Steinhardt & Co. then st.ated that they could obtain a barge from Ross, Kepn & Co., New Orleans. said Ross. Keen & Co., being agents of the S. S. Mandelay, on which the cotton-seed meal was. to be delivered for account of Steinhardt & Co.; that it was generally understood in the port of New Orleans that when the barges of Ross, Keen & Co. were spoken of it meant the barges of the Harbor Transportation Company, Which. were usually employed by them, and were insurable, as well as their cargoes WE're also insurable; that subsequently Steinhardt & Co. informed re· spondent that respondent could have the use of the barge called the · Jimmy · without rental, but that the Southern Oil Company would have to pay th& tOWing. Whereupon, on or about the 19th of December, 1887, respondent
PARDEE,J., The transaction between the libelants and the respond. ent, l'I'hichis,the basis ofthe action in this ease, is'Shown by the pleadingsto 'J;iave beenoneof1oll,n. The second article oftile libel chnrges.or' about .the. 19th. of. December, 1887, at Tel}uest of said oil