IN RE WILBON.
(DiBirict Oourt, S. D. :New York. June 1,1882.)
LAw-LIEN OF. An attorney's lien upon an uncollected judgment is limited to his taxable costs and reasonable compensation in the cause itself, or in the same subjectmatter, and may be enforced by active proceedings;
SAME-DEPENDS ON POS8EsBIO:N.
An attorney's general lien for the balance of his entire account extending to all papers, documents, and vouchers in his possession, depends wholly upon possession, and is a right merely to retain such papers till his bill is paid, and cannot be otherwise actively enforced.
Such a general lien does not extend to a judgment uncollected by the attorney, so as to bind the proceeds, when collected by the judgment creditor or his assignee, or other attorneys who may collect the same, without the use of papers in the hands of the original attorney.
4. ATTORNEY'S FEES-AGREEMENT OF ASSIGNEE-GENERAL LIEN.
Where an assignee in bankruptcy, desiring to change the attorneys in legal proceedings which the bankrupt had instituted, .received from the latter's attorneys all the bankrupt papers and vouchers, including substitution upon outstanding executions on judgments previously recovered, agreeing to satisfy the attorney's lien out of the first moneys collected in the pendil1gsuits, and the executions were afterwards returned unsatisfied, and the other attorneys .of the assignee subsequently collected the first two judgments through supplementary proceedings in the nature of a creditor's bill, upon which the former attorney claimed a lien for his costs and counsel fees in a third judgment, which remained wholly uncollected, held, that the agreement was not binding upon the bankrupt's estate to any greater extent. than the legal lien of the attorney at thc' time the agrecment was made; that he had no lien upon the proceeds of the first two judgments for his costs and counsel fees in the third judgment" or for his general bill, the first judgwents .having been collected without the use of any papers in the attorney's h8.nds at the time of the agrcJl· ment; and that upon the suits not in judgment, and the papers nccessary in the prosecution thereof, thc attorney had a general lien; that the agreement was valid and binding to that extent, and certain proceeds.of. such suits having been collected by means of papers surrendered under it, tJ;le attorney was enti. tIed to have such proceeds applied to his general bill. Case of the Bowling G'NJcn &wing8 Bank v. Todd, 52 N. Y. 489, qualified.
5; SUm-LIEN ON
An attorney's lien upon an uncollected judgment is not increased by subsequent services in independent matters.
Hearing on report of the register upon petition of J. H. Goodwin for payment of an attorney's lien. The assignee of the bankrupts was appointed in June, 1879. Prior thereto the petitioner had, been employed by.the bankrupts 88 their attorney in the prosecution of several 8uitswhich: were pending at the, time: of the appointment>of the. assignee. The petitioner, as
attorney, had also recovered for the bankrupts, in January, 1879, two judgments against one. J ames Wilson by default upon promissory notes for about $877, upon which judgments executions were then in the hands of the sheriff uncollected. The assignee desiring to employ other attorneys in the prosecution of the suits pending, and the petitioner claiming a general lien upon all the papers in his hands for his costs and services, an agreement was made between him and the assignee, on June 7, 1879, reciting that the petitioner had "commenced a number of suits against persons, debtors of said Wilson & Greig, and which said suits have not been finally concluded; that the assignee recognized the petitioner's lien thereon, and desired all papers therein to be surrendered to other attorneys to be substituted;" and providing that the papers in said suits should all be transferred, and substitutions given, and that the petitioner's lien should not be waived thereby; but that the "lien should be first paid and satisfied by the first moneys coming into the hands of said assignee out of said suits, a list of which is annexed," Among the papers transferred were those in the two judgments aga.in.st James Wilson, which, in the receipt given by the substituted attorneys, are recited as given under the terms an.d conditions of the agreement above referred to. 'fhe execntionsthen outstanding upon these two judgments were afterwards returned wholly unsatisfied. Blumenstiel & Hirsch, the substituted attorneys, subsequently, upon proceedings supplementary to execution, in the nature of a creditor's bill, recovered the whole amount of those two judgments, being about $1,900. A third judgment had also been recovered by the petitioner, as attorney for the bankrupt, against Hine, Phillips, and others, upon charges of embezzlement, in which the petitioner's taxed costs were $326.69, and in which his services were reasonably worth, as reported by the register, $500 more, making $826.&9 for his bill in that suit; and the papers in that .case were also ,among those transferred. and receipte(1,for. In the variolls other suits. transferr.ed the sum of $144.57 only was collected by the assignee. All of the petitioner's claims have been paideicept his bill for the recovery of the last-mentioned judgment, upon which he has received only $4Q.86, leaving $782.83 justly owing to him for his services in that suit. The petitioner,elaimeda, general lien upon each and all of the suits aI1d judgtnentatransferred :for his entire bill, and that he was entitledJo be paid wbat was due.to him upon the third -judgment Qut ofthEl,pr@ceeds collected by Blumenstiel & Hirsch upontha two
prior judgments against James Wilson. The assignee refusing to recognize this claim, the matter, upon petition, waa referred to the register, by whose report the above facts appear. S. B. Hamburger, for claimants. Blumeustiel <t Hirsch, for assignee. BROWN, D. J. It is not disputed that the sum of '$826.69 would be a fair compensation to the petitioner for his services to the bankrupts in obtaining the judgment against Hine and Phillips in May, 1879. Nothing; however, has been recovered thereon. All claims of the petitioner, aside from those connected with that judgment, have been paid, and the only question presented is whether the petitioner has a right to be paid the balance of $782.83 due tQ him for his services and costs in obtaining this judgment out .of the proceeds collected by the assignee, through his subsequent attorneys; upon the two Wilson judgments recovered in January, 1879, The effect of the agreement of June 7, 1879, between the assigpee and the petitioner, was to preserve whatever. lien or equitable rights the petitioner then had. It was sufficient for this purpQse; it was not intended for any other purpose; it was not approved by the court; and if its terms were in fact such as to enlarge the petitioner's claim& beyond his then existing legal lien, it would not bind the ba.nkrupts' estate, and the petitioner would be obliged to resort to his personal remedy against the assignee. The assignee, however, took the rupts' estate charged with whatever legal or equitable lien existed against it in· favor of the petitioner, and by the agreement made these liens were preserved as they existed at that date. , On the pal't of the assignee it was contended that nothing having been collected by the petitioner upon the two judgments againstJames Wilson, the attorney's lien thereon was limited. to his taxed .costs anll reasonable compensatioIJ. in obtaining those judgments. The petitioner contends that his general lien for his whole bill, which legally attt\ched upon the pa.pers U;1. his hands, the notes upon which the judgments were mll.intained, followed the, judgments and legally bound whatever Was BUQsequentJ,y collected thereon by. the assignee. " [,.After examination of thenumerouB authorities on this"subject; English and American, I am satisfied that the .chtim of· the petitioner cannot be sustained, and that an attorney has no general ,lien .upon an uncolle.cted judgment for services inother suits, but only a pwrticcosts and compensation in that particular
. An :attorney's lien, as now generally'recognized, is of two kinds: First,a general lien resting wholly upon possession, which is a mere deeds, vouchers, right to retain, until his whole bill is paid, all etc., in his possession upon which, or in connection with which, he has expended money or given his professional services. This "retaining lien" is a. general one for whatever maybe due to him; and, though a client may change his attorney at will, if the latter be without -fault and willing to proceed in pending oauses, none -of the papers or vouchers can ordinarily be withdrawn from hini except upon payment of his entire bill for professional services. In re PasIn re Brown, 1 N. Y.Leg. Obs. 69; Inre chal, 10 Wall. 483, Broomhead,5 DowI. & L. 52; Blunden v. Desart, 2 Dru.& Warr. 423; Ex parte 2 Soh. & LeI. 279; Ex parte Sterling, 16 Ves. 258; GrijjithJJ v.Griffiths, 2 Hare, 592; Ex parte Pemberton, 18 Ves. 282; Lord v. Wormleighton, 1 Jacob, 580; Bozonv. Bolland, 4 Myl. & C. 354, 356; Ex parte Yalden, L. R.4 Ch. :Div. 129; Colmer V. Ede, 40 Law J. (N. 8.) Chane. 185; Hough v. Edwards, 1 Hurl. & N. 171; Cross, Lien, 216; Stokes, Attys.' -Liens, 28,38; 2 Kent, -641. This lien, like otherm.ere possessory liens, is, however, purely passive, being a bare right to hold possession till payment.' Thea.tticles cannot be sold or parted with without loss of the lien, nor can any active proceedings be taken at law or in equity to procure payment of the debt out of the articles so held. Cross, Lien, 47; 48 ; Thames Iron Works v. Patent Derrick Company, 1 Johns. &H. 93; The B. F. Woolsey, 4 FED. REP. 552, 558. The statute of this state passed May 8, 1869, (Laws 1869, C. 738;) which was designed to afford means of realizing payment upon such mere possessory liens, applies only to liens "upon any chattel property." Mere ohoses in action, such as the notes or demands placed in the petitioner's hands for collection, are not "chattel property," (2 BI. -387; Ingalls v, Lord, 1 Cow. 240; Ransom V. Miner, 3 Sandf.692,) and therefore not within the statute. As this general lien of the attorney upon the notes and demands in suit depended wholly upon' possession,and was a mere right of reteJltion, incapable of any active proceedings to enforce payment, it could not be transferred, nor attach to the judgments obtained npon them or to any proceeds th'ereof, unless such proceeds came into the attorney's possession, which is not the fact in this case. second kind of lien which an attorney has' is that existing upon a judgment reoovered by hini, or moneys payable thereon,oi
IN BE WILSON.
upon some fund in court. This lien, so far as it extends, is not merely a passive lien, but entitles the attorney to take active steps to secure payment. It did not exist at common law. It is stated by ancient. 1 Doug. 104; Stokes, 3. Lord Mansfield to be not It does not depend upon possession, but upon the favor of the oourt in protecting attorneys, as its own officers, by taking care, ex teqU4 et bono, that a "party should not run away with the fruits of the cause without satisfying the legal demands of the attorney by whos.e industry and expense those fruits were obtai,ned." Read v. Dupper, 6 T. R. 361. As this equitable right rests solely upon the compensation due to the attorney for his services, and money expended in procuring the judgment or the fund secured, it is manifest that it cannot upon principle be extended beyond the services and expensel;l in the suit itself, or in any other proceedings by which the judgment or fund has been recovered, or in the same subject-matter. The distinction between an attorney's "retaining lien" upon papers in his posses'sion, and his "charging lien" upon a judgment or other fund, is carefully pointed out by the lord chancellor in Bozo'lt v.Bol. land, 4 Myl. & C. 354, 359. "The solicitor's claim upon the fund," he says, "has been called transferring the lien from the document to the fund recovered by its production. But there is no transfer; for the lien upon the deed remains as before, though perhaps of no value; and, whereas, the lien upon the deed could never have . been actively enforced, the lien upon the fund, if established, would give a title to payment out of it. The active lien upon the .fund, if it exists at all, is newly created, and the passive lien upon. the deed eontinues as before. If the doctrine contended for were to prevail, the lien of the solicitor upon the fund realized would in most cases extend to his general professional demand, and not be confined, as it always is, to the costs in the cause: for it must very generally happen that the plaintiff's solicitor has in his hands the documents necessary to establish his client's title to the money." In Lann v. Church, 4 Madd. 207, the vice-chancellor said that he "had not been able to find any case in which it had been held that a solicitor had any lien on the fund recovered in the cause, except for his costs incurred 'in such cause." English practice. Stephens v.Weston, Such is the 3 B: & C. 538; Hodgkinson v. Kelly, 1 Hogan, 388; Hall v. Laver, 1 Hare, 571, 577; Perkins v. Bradley, Id. 219, 231; Lucas v. Peacock, 9 Beav. 177; Stokes, Attys:Liens, 138. The same principle has
been repeatedly affirmed in this country where the English practice of recognizing a lien upon a judgment has been followed. In Phillips v. Stagg, 2 Edw. Ch. 108, the vice-chancellor says that "the attorney's lien is not to extend beyond the costs in this action. He cannot claim the amount of other costs due to him in other suits at law." In Adamsv. Fox, 40 Barb. 442, 448, Morgan, J., says: "This lien is totally different from the lien upon the papers. The lien on the judgment is confined to the costs of the particular suit, and the attorney can actively enforce it. The lien on the papers is merely a right to retain them, and applies to all his bills of costs." In St. John v. Diefendorf, 12 Wend. 261, the .precise question. presented in this case was decided adversely to the' attorney's lien. Having recovered a judgment, the plaintiff's attorneys there gave notice to the defendant to pay the damages, as well as the costs, to them, on the ground that they had a demand against their client,. for costs in other suits, to an amount equal to the damages. The court say: "The question is whether the attorney has a lien upon his client's money, before it comes into his hands, to satisfy the demand he has against his client for costs in other suits. · .. · An attorney has a lien upon his client's papers; but he has no lien upon anything which belongs to his client until it is in his possession. The costs belong to the attorney. There can be no lien upon what belongs to another without possession." Pope v. Armstrong, 3 Smedes & M. 214; Cage v. Wilkinson, Id. 223; The Hektograph Go. v. Fourl, 11 FED. REP. 844. The petitioner contends that by the law of this state, as established by the court of appeals in the case of the Bowling G,'een Savings Bank v. Todd, 52 N. Y. 489, affirming 64 Barb. 146, the lien of an attorney for his general balance, which exists upon all papers and vouchers in his possession, is extended equally to any judgments recovered or moneys collectible upon them. In that case a. receiver of the plaintiff was appointed after a decree for the foreclosure of a mortgage had been obtained, but before the sale of the premises. The receiver employed Cullen & McGowan, the previous attorneys of the plaintiff, b proceed in the cause, and they afterwards caused the mortgaged premises. to be sold and received the proceeds,from which they claimed to deduct not only their bill in that action, but also a bill .for professional services due to them from the plaintiff in other matterspreceding the appointment of the a.nd also a third bill
due to McGowan individually for still prior services. At special term both the last-named bills were disallowed. The general term, on appeal, allowed the prior bill of the firm, but disallowed the individual claim of McGowan; and this was affirmed by the court of appeals. The court last named say: "The attorneys of the bank had a lien upon the papers in the foreclosure, not only for the costs and charges in that suit, but for any general balance in other professional business;" referring to 3 T. R. 275; 8 East j 362. Neither of those cases, however, sustain the doctrine of a general lien upon a judgment beyond the costs in the particular cause. In the court below, Ingraham, J., says, (64 Barb. 155:) "Most of the cases in which this lien [upon the judgment] is recognized are cases where the claim was for costs of that particular action in whioh the motion was made. But the rule is equally well settled as to any claim which the attorney has for his services, and attaches as well to the proceeds of a judgment as to the papers on which the judgment was founded." No authorities are cited for this last proposition, nor after much search have I been able to discover any in this country or in' England. We have seen that, so far as respects a general lien upon a judgment, or fund in court, the authorities are all to the contrary. Where an attorney has collected :inoneyforhis client, and no rights of third persons have intervened, through assignment, death, or bankruptcy, he might, doubtless, offset his own gen'eral bill. Patrick v. Hazen, 10 Vt. 184. In the case of the Bowling Green Savings Bank, however, the appointment of a receiver before the of the moneys prevented any legal right of set off. The · moneys were collected by the attorneys upon the employment,of, and as the attorneys of, the receiver; as, in the case of Schwartz v. Schwartz, 21 Hun, 33, the moneys were collected upon the employment and as the attorneys of the assignee. In neither of these cases does the distinction seem to be noted which has been so long established between a mere "retaining lien" upon the papers in the possession of an attorney, which is general but purely passive, and his "charging lien" upon a judgment or fund recovered, which is limited to services in the cause, but capable of being actively enforced. Numerous prior decisions of the court of appeals have declared, like the English cases, that an attorney's lien upon a judgm('.nt is based upon the equitable consideration that it is by the attorney's labor and skill that the judgment has been recovered; the judgment 1'.12,no.3-16
being within the control of the court, and the parties within its Jurisdiction, the court will see that no injustice is done to its own officers. In Rooney v. Second Avenue R. 00. 18 N. Y. 368; in Ely v. Cooke, 28 N. Y. 373; in Dunkin v. Vandenbergh,. 1 Paige, 626; and in many other cases, the attorney has upon this ground been regarded as an equitable assignee of the judgment. to the extent of his demands in the cause. Prior to the adoption of the Code of Procedure the extent of this lien was limited to the taxable costs. The Code has made no other change than to extend the lien to any agreed or deserved compensation. Marshall v. Meech, 51 N. Y. 140, 143; Haight v. Holcomb, 7 Abb. Pl'. 210; Ackerman v. Ackerman, 14 Abb. Pl'. 229. Harris, J., in the Case of Rooney, above cited, says that the attorney is now "to be regarded as the equitable assignee of the judgment to the extent of his claim for services i,£ the action." In the same case Comstock, J., says: "The attorney is entitled to a lien, as against his client, because his labor and skill contributed to the judgment, · · ." and he "has an interest in the judgment either to the amount of those, or for some other amount which he is entitled to claim (by agreement or on the quantum meruit) as the measure of his pensation. " In Marshall v. Meeck, 51 N. Y. 143, the court Bay that the "aiitbr. neyhas a lien for his costs, and compeDsationupon the judgment recovered by him. Such a lien existed before the Code, and is not affected by any provision of the Code. The lien exists, not only to the extent of the costs entered ,in the judgment, but for any sum which the client agreed his attorney should have as a compensation for his services. To the amount of such lien the attorney is, to be deemed an equitable assignee of the judgment." In Wrightv. Wright, 70 N. Y. 100, the court say:' "The attorney had a lien for the amount of his costs and agreed compensaticm upon the judgment, and to that extent may be regarded as an equitable assignee of the judgment." See, also, Ward v. Syrne, 9 How. Pl'. 16. Neither in the decisions nor in the principles announced in any prior cases do I find any warrant for holding that an attorney has any lien upon an uncollected judgment beyond his compensation in the particular cause. In the case of Wolfe v. Lewis, 19 How. (U. S.) 280. a case very closely analogous to that of the Bowling Green Saving, Bank, the attorney had obtained a judgment of foreclosure,. but the money due was paid into court without sale. Upon the attorney's claim
of a general lien for other services, and an order for payment thereof out of the fund by ,the court below, the supreme court reversed the order and directed the fund to be paid to the complainants. In a recent case (In '1'6 Knapp, 85 N. Y. 284) Danforth, J., says: "The lien of the attorney upon a judgment recovered by him is upheld upon the theory that his services and skill pr00ured it," (71 N. Y. 443;) thus reaffirming the only ground upon which this lien has ever been put, and which, while it explains the reason for the lien, also necessarily limits it to the services and charges in the same action. In the case last cited the same eminent justice adds: "No new rule was enunciated in Bowling Green Saving8 Bank v. Todd, 52 N. Y.489, where it was said that the lien of the attorney attaches to the money recovered or collected upon the As the prior rule was undoubted that the lien upon the judgment did' not extend beyond the costs and compensation in the 'cause, or Bame subject-matter, and as no new rule was intended to be enunciated in the Case of the Bowling Green Saving, Bank, it must be understood that the conrt of appeals did not intend in that case to overrule so many express adjudications that where the moneys have, not been reduced to the attorney's actual possession, his lien upon the judgment does not extend beyond the amount of compensation due to him in the particular cause, or in the same subjectmatter. In n Paschal, 10 Wall. 496; The General Share T. Co. v' Chapman, L. R. 1 C. P. Div. 771. In the present case the petitioner never came into possession of the moneys claimed; they were procured by the services of mher attorneys, by legal proceedings subsequent to the date of the petitioner's claim. These subsequent services were necessary to realize anything upon the judgment, and the subsequent attorneys .have their own lien upon the judgment and its proceeds for· their subsequent services in, the cause; and, upon. the doctrine contended for .by the petitioner, they might have a conflicting lien for their own general balance, to the full amount collected, if their bill amounted to so much. Were the doctrine to be recognized that attorneys have a general lien for all their professional services upon each and ev'ery uncollected judgmeut which they might ;have obtained in behalf of a client,through an indefinite period, very great oonfusio)) and inconvenienoe, would be the ,necessary result. The petitioner's general billj\ in this case, exceeded each of the judgments against, James If one of them only had been collflcted by
a,ttorneys, the prior equitable to the petitioner, upon the doctrine contended for, would either have entitled him to the entire proneeds, to the exclusion of the subsequent attorneys who might have had greater equitable claims for their services in obtaining the money upon the judgment, or else would compel a further judicial as between the former and subsequent hearing and attorneys, as to the apportionment of the proceeds between them. 'fhe bill of services which the petitioner now seeks to charge upon the two earlier judgments is, moreover, a bill for obtaining judgment against Hine and Phillips, some four months afterwards. How much, if any, of this bill existed in January, 1879, when the judgments against Wilson were recovered, does not appear; and, by the. rule that formerly existed, the attorney had no lien, except upon papers in his hands, until judgment, or, at least, till a verdict. Sweet v. Bartlett, 4 Sandl. 661; McCabe v. Fogg, 60 How. Pr.488. This latter bill, as it now stands, could not, therefore, have been a lien upon the prior Wilson judgments when they were entered; and if not a lien then, how could it become so afterwards? Neither prinoiple' nor authority can sanction an inorease In the amount of a lien upon an uncollected judgment through subsequent·· services in independent matters. Section 66 of the new Code of Procedure, 1879, which gives an attorney "a lien upon his olient's oause of action" from its commencement, refers, I think, to his serVioes and charges in the oause itself, and no more, and does not affect the questions here considered. The petitioner's claim to a lien upon the judgments against Wilson must therefore be disallowed. Upon the. pending suits, transferred by the petitioner under the agreement, the assignee has collected $144.57. The petitioner had a lien upon these suits and on the papers th.erein for his general bill, which·the. agreement has preserved. Those' papers were essential to the further prosecution of these suits, and to the recovery -of the moneys afterwards collected therein. Upon the authorities 81bov6 citeJ (InrePaschal, 10 Wall. 483; In re Broomhead, 5 Dow!. & L. 52, etc;, supra) the court would not 'have ordered those papers to betra.nsferred by the petitioner exceptiuponpa,ymentof his general bill, Qr some security analogous to that of the agreement made. Carver's 7 Nott.& H. Heslop Metcalfe,.3 My!. & C. Oane:v; Martin, 2 Beav. 584; The 'Hektograpk Co. v. Fourl,·ll FED.: REP. 844. By.that agreement this lien must .be paid "out of thEdust mon.
UNITEP STATES 'V. THOMSON.
eys collected from those suits." I find a balance of $74.55 collected upon these suits not applied to the petitioner's benefit, and he is, therefore, entitled to that amount. The substitution of attorneys upon the Wilson executions, and the surrender of the notes upon which those judgments were founded, were not necessary, and were of no value in the subsequent collection of those judgments; they were not even clearly embraced in the terms of the agreement between the parties; and, as they were of no beneficial use, the surrender of them cannot now serve as a basis for any claim to a upon the Wilson judgments which did not previously exist. In Hodgins v. Kelly, 1 Hogan, 388, the court say: "The general lien exists as to the papers and deeds in his [the attorney's] handa, but cannot be extended to the funds in the cause if the plaintiff can obtain payment without his assistance or the use of those papers." The petitioner may have an order for the payment of $74.55, and his disbursements in this proceeding.
UNITED STATES ",.THOMSON.
(District Court, D. Oregon.
1. TAXmG PASSENGERS ON BOARD.
May 23, 1882.)
Passengers who go on board a vesse]open]y and in the usua] way are pre:' surned to have been taken on board by the master, within the purview of sec-' tions 4252-3 of the Revised Statutes.
2. ll<TENT TO CoMMIT CRIME.
Neglect in the discharge of a duty or indifference to consequences Is in many' cases equivalent to a specific criminal inteJ;l.t
3. CASE IN JUDGM;ENT.
The defendant, being the master of avcssel under charter at the port of Hong Kong to carry passengers to Portland, Oregon, permitted the charterers to load , her, under the inspection of: the port officers, without himself knowing or ing any steps to know how many passeJ;igers were board; and URon in Oregon it was found that there were '160: passengers in excess of the number' allowed to be carried by sections '4252-3 of the ReVised Statutes. Held, that it was the duty of the defendant to hilvetaken steps 1:lefore leaving the port to ascertain how many passengers he' bad on board, and that the omission of this duty was such negligence on his pai't as made him guilty of a violation of the statute. '
Information fox Violation of section 4253 of the Revised Statutes.·
J. P. Watson, for John W. Whalley, for defendant.
DEADY, D. J. Section 4:253 of the Revised Statutes provides thatif .. the master" of any vessel at a foreign port, not contigno'uB to the territory of the United States, "shall take on board such vessel" "any greater number of passengers" in proportion to the space allowed them thereon than is prescribed by section 4:252 of the Revise'd Statutes, "with intent to bring such passengers to the United States," alld does bring the same within the jurisdiction of the United States, "he shall be deemed guilty of a misdemeanor," and fined $50 for every such passenger, and may also be imprisoned not exceeding six months. The defendant, as the master of the English steam-ship Bothwell Castle, is accused by the information herein of violating this statute, by taking on board said vessel on April 21, 1882, 'at the port of Hong Kong, 160' passengers more than the number allowed thereby to be carried thereon, with intent to bring the same to the United States, and by afterwards bringing said passengers on said vessel within the jurisdictiqn of the United States, to-wit, the district of Oregon. The defendant pleaded not guilty to the charge, and by the stipulation of the parties the case was tried by the court without a jury. From the evidence, including, the testimony of the master, his chief officer, and two' of the seamen, It appears":'"
That within a past the defendant carl'ied a cargo of Chinese passengers on this vessel from Hong Kong to San Francisco, consisting of 1,033 adults j that on April 18, 1882, the" administrator" of the port of Hong Kong licenSed the Bothwell Castle to carry, under the English passenger act, not exceeding 1,09; Chjnese passe,ngers from that, pprtto Portland, Oregon j that on April 20th, the" emigration officer" of the same port gave the vessel a .. ciertificate," to the effect that she had space and was furnished to carry 1,094 adult gers on said voyage, and that there was then on board 1,032 men and 20 chilo dren, equal to 1,042 adults j that on the same day the Ii harbor master" gave the vessel a .. clearance" for Portland, with 1,052 Chinese passengers in the lower berths, .. under the' emigration officer's certificate j" that a', passenger list attached to said documents and signed .. George Holmes, passenger br.oker," and containing the names of 1,015 ordinary paSsengers, and 37 doctors, interpreters, stewards, cooks, etc., or in aU 1,052 passengers, was delivered by the defendant on May 14, 1882, to the collector at Astoria, verified by his oath then made as· containing" the 1,lames ,and descriptions of all the passengers who were on the said steamer (Bothwell Castle) at the timeo! or since herJast departijre ftom the said port of Hong Kongj" that said vessel on said voyap;e was chartered to carry Chinese passengers to Portland, and while lying in the stream at Hong Kong, not less than a mile from the shore, on April 20; on board 1,198 of 8uch:j)assengers, of whom about 1,041 h:ad
UNITED STATES V. THO,MSON.
"contract passage" tickets, containing the terms of the contract, a receipt for $50 in payment of the with the name of the passenger, his age, occupation, and place of birth, signed by "George Holmes, passenger broker," and signed and certified by the" emigration officer," to the effect that he had ., explained and registered .. the same, and about 157 had similar tickets not signed by anyone, and brought the same to this port, when by law she was not entitled to carry more than 1,038 such passengers, being an excess of 160; that after all said passengers were on board said vessel' there was a count of the same made by the" harbor master" and" assistant health officer" of the port, on said April 20th, and the defendant, upona statement then given him by them, and by him delivered to the proper local authorities, obtained his clearance and gave bond to convey the passengers as per agreement,'and at 6 o'clock the next morning sailed for Portland; that soon after starting a strict search was made for stow-aways, or persons who had not paid, and'onefound and put off the vessel, but no attempt was ever .made by the master, or anyone under bis direction or authority, to count the passengers or ascertain how many were on board until the vessel was within two or three days Qf the mouth of the Columbia river, when the defendant ordered the tickets taken up, and found that he had about 160 passengers inore than he was entitled to carry; thl\t on April 19th, the" government marine surveyor" measured the 'vessel, accordingto the American law as furnished bim by the American consul, and furnished the defendant with a written report thereof, from which it appears that she was not entitled to carry more than but upon a survey made by the collector at Astoria, it was ascertained that she had space enough for 1 , 0 3 8 . ' .
The defendant denied in his testimony all knowledge of the excess of passengers, or of his liability therefor under the United States statute, and said ,that he paid no attention to the matter, and supposed that the port officers would duly attend to it and not allow him to sail with more passengers than there was.on .his l\st,; and..when the collector at Astoria ascertained that there was an excess of passengers on board by counting them, and asked the defendant how cit came that there were 160 too many, the defendant said he did not know; that it was not a matter that he was bound to look· after-;-.he went by the list; that the company had sold 3,000 tickets and he supposed they were short of ships. There is no conflict in the evidence, and assuming that th'e facts are substantially as stated, counsel for the defendant inaistB!that he cannot be found guilty because tqere is no evidence- of a speoific criminal intent; that as he did not kn9w he had taken on more .paasengers than the law allowed. he can;not be ,held to have taken· onAhe excess with the "to t.othe pp.ited States.
And, first, what constitutes a taking on board within the meaning of the statute? I suppose that all passengers who go on board openly in the usual way-not clandestinely and without the master's consent, expressed or implied-are taken on board by him. It is not necessary that he should see them come. He may, and usually does, commit that duty to his subordinates. But as no one has a right to come on board without his consent, a passenger found there is presumed to have been t,aken on board by him until the contrary appears. There was a suggestion in the argument that the excess of 160 might have .gotten on board surreptitiously after the count by the port officers, during the afternoon and night of April 90th, by climbing up the ship's sides. But that was impossible, unless with the connivance of the officers and crew.. And the proof is that a strict watch was kept on board during that time, and that only one little boat approached the vessel and it was sent away. It must be assumed, then, that all the passengers on the vesse! came on with the implied consent of the master·.. He took no steps to prevent any of them coming on board; gave no directions to his officers to allow only so many passengers to come on board ; and therefore, in contemplation of law, they were taken On by him. But, nevertheless,. if there must have been a positive or specific "intent," in the mind of the defendant, to take on this 160 passengers for the purpose of bringin.g them to the United States in the same way that a specific criminal intent is necessary to constitute larceny, then the prosecution must fail; for, whatever the fact may be, no such intent has been shown. But in many cases negligence or indifference to duty or consequences is equivalent to a criminal intent. 1 Bish. Crim. L. § 62; 1 Whart. Crim. L. §§ 89, 125. Under the circumstances, the statute forbid the defendant from taking on board any of these 160 passengers; and he could not knowingly have done so without intending to violate the statute. What was his duty, then? To leave the matter in the hands of his charterer and their broker, who were only interested in getting as many passengers on board as possible, and the port officers, who were under no obligations to prevent a. violation of a United States statute, but only concerned to see that the regulations of the port were complied with? I think not. In· my judgment it was the duty of the
mastel:, hefore leaving the port of Hong Kong, to have taken steps to ascertain how mariy passengers he had on board, if he had not taken an account of them as they came on, as he should have done. This duty should have been performed in person, or by his officers under his directiou. The omission of it was an act of gross negligence, in consequence of which this 160 passengers were unlawfully brought to the United States, which consequence he must be held to ,have intended. Any other construction of the statute would make it a dead letter. Neither ship nor owners are responsible for its violation, as they ought to be, and the master can always be kept in convenient ignorance of the facts until the vessel has sailed from port, and then it is too late for him to commit the crime of taking them on board with a. specific intent to bring them to the United State,s. There are also some circumstances In the case which tend to show that the defendant was not altogether innocently ignorant in this matter. When off the mouth of the Columbia river he found out that he had a large excess of passengers on board. It would have been natural for an innocent man to have reported that fa:ct to th collector when delivering his list of passengers. Still he might and the master says he did not, because he was not interrogated about it. But how could an honest" truthful man, not only suppress this faet of the excess, but also declare on oath that the passenger list contained the names of all the passengers on board, when he absolutely knew that it did not, by a large number. But as to a portion of this excess the evidence is satisfactory that the master knew he had them ali board, and therefore must have taken them on with a specific intent to violate the statute. He says that he knew, or supposed, he had 1,052 passengers ,on board-the number contained in the list furnished by the passenger broker. But the survey of his vessel, made by the surveyor of the port under the American law, on April 19th, a written report of which was furnished the defendant and brought by ,him to this port, shows that the vessel was only entitled to carry 1,005 passengers, or 48 less than the list. This was the knowledge which the defendant had when he took these 48 passengers on board and left with. them for this port. The only reasonable inference from the premises is that he took them on with the intent which constitutes the violation of the act, if followed up by bringing them here. True, the measurement of the vessel by the col·
lector at Astoria shows that she has space for 1038 passengers. But. that· is the defendant's good fortune rather than the result of his goodconducrt. He did not act upon that impressioD. And still there are 15 passengers on the list in exoess of what the vessel was entitled to carry by the Astoria measurement, of which the defendant must have had knowledge.. '. The finding of the court is that thedefanda,nt is guilty as charged in the information.
UNITED STATES V. THOMSON·.
Jpformation· for Violation of section 4266 of the Revised Statutes. The defendant was also charged With the viol'atiqnof section 4266 of the Revised, Statutes, by failing to deliver a correct list of his sengers on board to the collector at Astoria. The case was submitted to the court on the evidence in the above case, and the court found him guilty and sentenced him to pay the fine prescribed by statute -$1,000. , .
CASTRO V. DE URIARTE.
(District Oourt, 8. D. N6'IJJ York. March 25,1882.
FALSE IMPRIBONMJnNT-WHEN AOTION
Lms. Where the subject-matter of an offence charged on the accused is wholly beyond the jurisdiction of the committing magistrate, only an action for false· imprisonment, and not an action for malicious prosecution, will lie.
2. MALICIOUS PROSECUTION-AcTION FOR. ' But if the subject-matter and the person be within the proper jurisdiction
of the magistrate, and the papers upon which the process was issued, or the process itself, be defective or irregular merely, upon the proceeding beillg minsted, if the prosecution was maliCious, the accused may maintain atl action eitherfor false imprisonment or for malicious prosecution. Although the magistrate who issues process without jurisdiction is liable in trespass only, the complainant is liable to trespass on the case as the indirect cause of the injury.. . .
COMPLAINT CHARGING BOTH OFFENCES-JOINDER.
In an action brought by a person who had been arrested for the purpose of extradition, under the treaty with Spain, upon the complaint of the defendant, the ::3panish consul, and the complaint in. the present action charged in the first count false imprisonment, upon the ground of defects in the affidavits submitted to the United States commissioner, upon· Whose order the arrest was