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IV CRANCH.

4 Cr. 1, 2 L. 531, UNITED STATES V. KIDD.

No citations.

4 Cr. 2-29, 2 L. 531, JENNINGS v. CARSON.

Admiralty.— District Courts of the United States are courts of prize, with all the powers of continental courts of appeal in prize cases, p. 23.

Rule applied in dissenting opinion, Brown v. United States, 8 Cr. 137, 3 L. 514, majority denying jurisdiction where property left on mud by tide; Taylor v. Carryl, 20 How. 600, 15 L. 1034, holding further that seizure must be valid, and control of marshal actual; The Hiawatha, Blatchf. Prize, 7, F. C. 6,451, and holding jurisdiction not restricted to seizures made within territorial dimensions or on high seas; The Actor, Blatchf. Prize, 200, F. C. 36, holding question as to whether seizure is one of prize, is one for court in first instance; The Lizzie Weston, Blatchf. Prize, 265, F. C. 8,425, as to procedure; The Wave, Blatchf. & H. 252, F. C. 17,297, holding act of congress unnecessary to establish jurisdiction in civil causes; Fay v. Montgomery, 1 Curt. 269, F. C. 4,709, holding that court will first ascertain whether case is one of prize; The Emulous, 1 Gall. 573, F. C. 4,479, as to captures made in port; The Centurion, 1 Ware, 480, F. C. 2,554, to point that one court may enforce decree of another court; Jones v. The Richmond, 13 Fed. Cas. 1013, holding action against vessel for salvage, service does not depend upon question as to whether vessel was arrested or brought within territorial jurisdiction of court. Cited generally in The Rio Grande, 23 Wall. 465, 23 L. 159. See also The Ella Warley, Blatchf. Pr. 207, F. C. 4,371, citing note to principal case on this point. Approved in The Anna, Blatch. Pr. 339, F. C. 402, discussing general subject.

Distinguished in Assign v. The G. B. Lamar, 2 Fed. Cas. 69, holding judgment against master for wages recovered in common-law court cannot be enforced in admiralty; Slocum v. Wheeler, 1 Conn. 447, where property seized on shore held not to be subject to admiralty jurisdiction; Braithwaite v. Jordan, 5 N. Dak. 216, 65 N. W. 707, holding action on bond given for stay of proceedings not to be part of original prize action.

Admiralty.- In all proceedings in rem the property is presumed to be in the custody of the law unless the contrary appears, p. 25.

Cited and principle applied in The Celestine, 1 Biss. 7, F. C. 2,541, as to attachment in State court, denying control to a creditor in United States Court; aso in The Bolina, 1 Gall. 81, F. C. 1,608, as to seizure for violation of revenue laws; Burke v. Trevitt, 1 Mason, 100, F. C. 2,163, as to libel for restitution of goods seized under revenue laws; and in The Robert Fulton, 1 Paine, 626, F. C. 11,890, as to libel for materials furnished; The Phebe, 1 Ware. 364, F. C. 11,066, holding attachment will issue where property taken from custody of officer of court; United States v. The Pitt, 27 Fed. Cas. 542, holding that court may order delivery of property to claimants upon filing stipulation bond; so also in the Frank Vanderkerchen, 87 Fed. 765; Tracey v. Corse, 58 N. Y. 151, as to property seized for violation of revenue laws. See note 62 Am. Dec. 245, on general subject. Approved in Cushing v. Laird, 107 U. S. 78, 27 L. 394, 2 S. Ct. 202; and The Young America, 30 Fed. Rep. 791, discussing general subject.

Admiralty.- Belligerent cruiser seizing a neutral with probable cause, and taking her in for adjudication, proceeding regularly, is not a wrong doer, pp. 28, 29.

Admiralty — Appeal.- The property does not follow the appeal into the higher court, and the lower court may order it sold notwithstanding the appeal, pp. 26, 27.

Rule applied in The William Bagaley, 5 Wall. 412, 18 L. 591. Discussed in Young v. Kellar, 94 Mo. 594, 4 Am. St. Rep. 413, 7 S. W. 298, and principle applied to sale of perishable goods held under attachment; so, also, in Cilley v. Jenness, 2 N. H. 92.

Miscellaneous citations.- Cited in Averill v. Smith, 17 Wall. 93, 21 L. 616, to the point that custodian of goods seized is responsible for loss or injury due to neglect.

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4 Cr. 29 46, 2 L. 540, RHINELANDER V. INSURANCE CO. OF

PENNSYLVANIA. Marine insurance Abandonment. The capture of a neutral vessel by a belligerent constitutes a constructive total loss, and entitles the insured to abandon at any time before restitution, p. 42.

Discussed and followed in Marshall v. Insurance Co., 4 Cr. 206, 2 L. 597, under similar facts. Cited in Olivera v. Insurance Co., 3 Wheat. 195, 4 L. 368, as to vessel in blockaded port; Thompson v. Insurance Co., 2 La. 240, 22 Am. Dec. 136, as to unwarranted seizure on ground of illicit trade; Bohlen v. Insurance Co., 4 Binn. 441, but holding that assured need not abandon before vessel condemned Approved in Peele v. Insurance Co., 3 Mason 65, 67, F. C. 10,905, and Thompson v. Insurance Co., 2 La. 240, 22 Am. Dec. 136, discussing general subject.

Marine insurance. — The state of the loss at the time of the offer to abandun fixes the rights of the parties, and subsequent release does not prevent recovery for total loss, p. 46.

Cited and rule applied in Bradlie v. Insurance Co., 12 Pet. 397, 9 L. 1132, where value of vessel, at place where repairs must be made, held to govern right; Orient Ins. Co. v. Adams, 123 U. S. 75, 31 L. 67, 8 S. Ct. 72, holding, where abandonment is in good faith, it is not affected by change in circumstances rendering repairs less expensive; so, also, in Peele v. Insurance Co., 3 Mason, 37, F. C. 10,993, holding further act of underwriter, in taking possession, constituted acceptance of abandonment; and, conversely, where abandonment not made when right accrued, but vessel repaired, owner could not afterwards abandon, Humphreys v. Insurance Co., 3 Mason, 436, F. C. 6,871; Fuller v. Insurance Co., 31 Me. 327, holding repair of vessel by purchaser after abandonment not to impair validity of abandonment; Dickey v. Insurance Co., 4 Cow. 243, holding repairing of vessel by master destroys right, although unknown to owner; Radcliff v. Coster, 1 Hoff. Ch. 103, holding offer to abandon must be based upon information of facts sufficient to warrant abandonment.

Miscellaneous citations.- Cited in Flanagan v. Insurance Co., 25 N. J. L. 521, to the point that, when policy is open, insurer can only recover to extent of damage, although loss be total.

4 Cr. 46–47, 2 L, 545, MONTALET v. MURRAY.

Jurisdiction of U. S. courts.— Facts necessary to give jurisdiction must be averred, p. 47.

Cited and applied, in dissenting opinion, McNutt v. Bland, 2 How. 22, 11 L. 164, majority holding it sufficient if parties beneficially interested be competent; dissenting opinion, Marshall v. Railroad Co., 16 How. 341, 14 L. 964, declaring corporation not a citizen and that citizenship of president and directors should be averred; Dred Scott v. Sandford, 19 How. 402, 15 L. 699, holding free nezro, born of slave parents, not a citizen; Childress v. McGehee, Minor, 133, and principle applied to Justices' Courts as being of limited jurisdiction; also in Commissioners' Court v. Thompson, 18 Ala. 697, as to Commissioners' Court of Roads; and in Ingraham V. Arnold, 1 J. J. Marsh. 407, to the “ General Court; Clarey V. Marshall's Heirs, 4 Dana (Ky.), 97, holding, further, that facts may appear in any part of record; Beebe v. Armstrong, 11 Mart. (La.) (O. S.) 441, as to removal of causes; Florence Co. v. Baker Co., 110 Mass. 81, on same point. Cited generally in Blair v. West Point Manfg. Co., 7 Neb. 154.

Jurisdiction.- Federal courts have not jurisdiction between allens, p. 47.

Doctrine applied in Picquet v. Swan, 5 Mason, 55, F. C. 11,134, holding citizen of Territory not citizen for purpose of suing in Fed

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eral courts; Pooley v. Luco, 72 Fed. 561, under facts similar to those in principal case; Petrocokino v. Stuart, 19 F. C. 385, holding that fact that foreign corporation has office within jurisdiction does not render it competent to sue another alien; Orosco V. Gagliardo, 22 Cal. 85, denying petition for removal to Federal court.

Distinguished in Hinckley v. Byrne, Deady, 227, F. C. 6,510, where plaintiff was citizen of United States.

Jurisdiction.- Where payee and maker of note are both aliens indorsee cannot sue in Federal court, p. 47.

Cited and principle applied in Morgan v. Gay, 19 Wall. 83, 22 L 100, where payee of inland bill of exchange not competent to sue; Parker v. Ormsby, 141 U. S. 85, 35 L. 656, 11 S. Ct. 913, dismissing suit where citizenship of payee not averred; Shurford v. Cain, 1 Abb. (U. S.) 308, F. C. 12,823, where original parties citizens of same State; Rogers v. Linn, 2 McLean, '127, F. C. 12,015, sustaining demurrer where citizenship of assignor of bond not alleged; Hampton v. Canal Co., 9 Sawy. 383, 19 Fed. 3, ruling similarly as to mechanics' liens; New Orleans, etc., Co. v. The Recorder, 27 La. Ann. 293, dismissing suit where original parties to mortgage not competent to sue. The rule has been approved in Bullard v. Bell, 1 Vason, 251, F. C. 2,121, and Donaldson v. Hazen, Hemp. 425, F. C. 3,984, discussing the general subject.

Distinguished in Coffee v. Planters' Bank, 13 How. 187, 14 L. 106, and Phillips v. Preston, 5 How. 291, 12 L. 157, where suit was not upon note assigned but upon new agreement between maker and assignee; Wilson v. Fisher, 1 Bald. 137. F. C. 17,803, holding that where original parties competent, intermediate assignment to one not competent is immaterial; Dundas v. Bowler, 3 McLean, 208, F. C. 4,140, denying application to case of mortgage; Towne v. Smith, 1 Wood. & M. 119, F. C. 14,115, where note payable to maker, and by him indorsed, held payable to bearer.

Costs on appeal.- If a judgment is reversed for want of jurisdiction costs are not to be allowed, p. 47.

The rule has been applied in Hornthall v. The Collector, 9 Wall. 667, 19 L. 562, and Abbey y. The Robert L. Stevens, 1 F. C. 12, in admiralty proceedings, dismissing libels for want of jurisdiction; Burnham v. Rangely, 2 Wood. & M. 421, 422, F. C. 2,177, ruling similarly in dismissing suit in equity. Cited approvingly in Miller v. Clark, 52 Fed. 902, and Jim v. State, 3 Mo. 163, discussing general subject.

Rule limited in Mansfield, etc., Ry. Co. v. Swan, 111 U. S. 388, 28 L. 466, 4 S. Ct. 514, awarding costs against party wrongfully removing cause to Federal court; Bradstreet v. Higgins, 114 U. S. 264, 29 L. 176, 5 S. Ct. 880, holding party entitled to costs incident to motion to dismiss; Bitz v. Meyer, 40 N. J. L. 256, 29 Am. Rep. 236, awarding costs where trial of issue of fact necessary to determine jurisdiction.

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4 Or. 48–59, 2 L. 546, UNITED STATES v. WILLINGS.

Admiralty.- Vessel may be transferred, by parol, at sea, and, if resold to vendor, on arrival in port does not lose her American character and no new register is necessary, pp. 55–59.

Rule applied in Calais Steamboat Co. v. Van Pelt, 2 Black, 285, 17 L. 289, and in Scudder v. Calais Steamboat Co., 1 Cliff. 380, F. C. 12,565; also in Barnes V. Taylor, 31 Me. 334. See also Vinal v. Burrill, 16 Pick. 406, discussing subject generally.

Denied in Ohl v. Insurance Co., 4 Mason, 394, F. C. 10,473, holding written contract necessary.

Vessel.- Transfer of, at sea, without change of papers does not work a forfeiture of her national character, p. 56.

Rule applied in D'Wolf v. Harris, 4 Mason, 533, F. C. 4,221, also In The Forrester, Newb. 94, F. C. 15,132, holding further as to distinc tion between registration and enrollment.

4 Cr. 60–62, 2 L. 550, ONEALE v. LONG.

Appeal and error.- - Exceptions will lie to refusals of the court to give instructions when requested to do so, p. 62.

Rule applied in Emerson v. Hogg, 2 Blatchf. 7, F. C. 4,440, holding that where charge does not comply with prayer, instructions are to be considered as refused.

Alteration of written instruments.-Alteration of a bond by prin. cipal, in substituting a surety without consent of the other sureties, renders the bond invalid, p. 62.

Cited to this point and principle applied in Anderson v. Bellenger, 87 Ala. 337, 13 Am. St. Rep. 48, 6 So. 82, holding contract of surety. ship should be construed strictly in favor of surety; Sans v. People, 8 Ill. 336, as to alteration of penalty in bail bond; Covert v. Shirk, 58 Ind. 268, as to withdrawal by surety on appeal bond before approval by court; People v. Brown, 2 Doug. (Mich.) 13, as to alteration of penalty in sheriff's bond. Discussed in Humphreys v. Guillow, 13 N. H. 387, 38 Am. Dec. 500, and principle applied to material altera. tion of promissory note. See also note, 25 Am. Rep. 709, on general subject.

The principle has also been approved in the following cases discussing the general subject: Taylor v. Johnson, 17 Ga. 533; Barrett v. Thorndyke, 1 Me. 76; Walla Walla County v. Ping, 1 Wash. Ter. 844, where authorities are collected and compared.

Distinguished in State v. Pepper, 31 Ind. 86, holding that where spaces are left for subsequent insertions, surety is estopped from denying validity; Yeager v. Musgrave, 28 W. Va 111, as to imma. terial alteration by third party.

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