of'iiuties'if otherWise. shown· to be entitled ·to free: entry. But; not. liable to duties, when the ,identity of the: articles is properlyestablished this must be done under regulations pl:esc;ribed by-the: secretary of the treasury... Thi13 is a condition upon whic.h the property may be admitted duty free, and rno other testimony as to the ori:- . gin, character, or shipment of the goods oan entitle them to this benefit. The proof. of identity must be -,made fin the: diredtedbythe regulations of tpe treasury depatt1I\ent, (articles 375. and 8.76,) as far as the.ciroumstancespossibly,permit. Theproperty applirehtlyneter having been landed in a foreign port, it will be impo8sible::to furnillh the statement required in artiole 377, which "ill not·· therefore,. be:required. Time will be allowed the parties to. make 'such proof as the regula..; tiona, not exoeeding six time. given, il:dhe ,form Of bondprescribed,-and in the .meantime. the entire,amount o! dutieaelaimed will be xetainedriB.the registry. Of the court·
(District 'Court, E. D. New York·· 1882.)
COLLI8ION-CnOSSING COUHSES-MANEUVER IN ExTREMIS.
Where it was not possihleJor II pilot-boat, by holding her course land bel'ling out her tack, toeross the bows of a tug without collision"she is justified in attempting at the la.st moment to avoid the collision by keeping away, and lier failure to accomplish this'is no fault.
2. B.urn-CHoICE OF MANEUVERS. ' Where it was doubtful whethel:,shll :cQ\lIIi< have accQmpliR'hed such a ver in safety, it is no fault to declipe the hawser l.ietween the tug anll her tow. " . 3. BAME-ERROR IN ExTREMIS-NoT A FAULT. A mere error in the selection of means to avoid a danger cast upon a vessel erring :vessel by the fault of the other ve$Sel woulp. not render for the result.
HiU, Wing It Shoudy, for l i b e l l a n t . , Ohas. W. Sloane and Beebe, Wilcox It Hobbs, for
BENEDICT, D. J.This action.is brought to recover of the tug John Mitchell and the pilot-boat Alexander M. Lawrence. damages for a collision with the bark The place of oollision, was in the bay of New York, just above the Narrows. The tug "was towing the bark in from sea, on a hawser, intending to stop off the..bdarding station. The tide was flood, and the wihd from the s(mthwal'd." The pilot-boat was ·beatingdown the bay. On her port tack ahe crossed the bows.of
the tug, standing in ·to too J8taten island shore. The tug, after the pilot-boat had passed her bows, .turned about in order to stop head to the tide, swinging toward the Staten island shore as she turned, and the bark followed her. upon the swing. The bark, meanwhile, beat out her tack at the Statenishmd shore, and when in the act of falling away upon the starboard tack found the tug then heading down the bay, almostdiiectly in her traok, with the bark still on the swing. The tug then stopped and hailed the pilot-boat to go across. the hawser by which the bark was being towed, and between the tug. and the bark.' Instead of doing so, a pilot on the boatseizing tbewheel putit hard up, with the intention of keeping the off, so-as, if possible, to clear the bark to the westward. But the time was not sufficient, and the pilot-boat came in collision with the bark on her port. side. . It is manifest from this statement of facts that the tug when she pilot-boat being then about to tack undertook to tum around, between her and the Staten island shore, took the risk of keeping out of the course of the pilot-boat as she came out of her starboard tack, and at the same time had the right to rely upon the pilot-boat's beating out her tack, and holding her course after she came on the starboard tack. It is conceded that the pilot-boat beat out her tack. The case turns, therefore, upon the question whether the pilot-boat, by holding her course upon the starboard tack, could crO&8 the bows of the tug. The testimony for the tug, shows that it was not possible for to cross the bows of the tug without collision. She was, therefore: justified in attemptipg, at the last moment, to avoid collision by keeping away; and her failure to accomplish this was no fault. Neither was it a· fault to decline to attempt to' cross the hawser between the tug ahd the bark. It is at least doubtful whether she could have accomplished such a maneuver $n safety. But, whether feasible or not, the maneuver was one not by any means obligatory upon the pilot-boat. Having been placed in a position of immediate peril by the fault of the tug in getting upon her course, it was the right of the pilot-boat to judge what it was best for her to attempt; and if it were true that she erred in the selection of means to avoid a danger cast upon her by the fault of the tug, suoh an error would not render her. responsible for the result. It is plain, therefore, that the tug is liable for the danger caused to the bark; and she is the only. one responsible, for the bark had nothing to do, and did nothing, but to follow in the course prescribed for her by the tug. There must be a decree in favor of the libellant against the tug; and the libel as against the pilot-boat must be dismissed, with costs.
P:lTERSV. LINCOLN &5 :N. W. B. CO.
& N. W. R. CO. and others.
(Cil'cuit Court. D. Nebraska. May, 1881.)
Where the language of the statute is that no lease of one railroad by another shall be perfected .. until a meeting of the stockholders of each of said companies shall have been called by the directors thereof, at such time and place and in such manner as they shall designate. and the holders of at least thirds of- the stock of such company represented at such meeting, either in person or by proxy, voting thereat shall have assented thereto." the stockholders' meeting, and the vote in sueh meeting upon the question of assenting to the proposed lease, are matters of essence. of substance. and not of mere form; and their assent individually obtained outside of such meeting, and in the absence of deliberation. would bind no one.
On demurrer. E. Wakeley, for complainants. T. Jf. Marquett, for respondents. MCCRARY. C. J. The bill does not allege that the agreement to lease was assented to by the stockholders of either of the companies, in stockholders' meeting assembled, as required by the statute; but it is insisted that it does show such assent in fact, and that the provisions the statute requiring a meeting of the stockholders, and a vote upon the question at such meeting, may be regarded as ory only, and not mandatory. The language of the statute is that no lease of one railroad by another shall be perfected "until a meeting of the stockholders of each of said companies shall have l?een called by the directors thereof, at such time and place and in such manner as they shall designate, and the holders of atleast two-thirds of the stock of such company, represented at such meeting, either in person or by proxy, voting thereat, shall have assented thereto." Can the meeting, and the vote at such meeting, be dispensed with. on the ground that the assent of the stockholders has been expressed in some other mode? The distinction between things which are of the essence of the act required by the statute to be done, and those which are not of the essence, is recognized. Marchant v. Langworthy, 6 Hill, 646; Rex v. Loaxdl1,le, 1 Burr. 447; Dwarris, Statutes, etc., 222. Such provisions of a statute as relate to the former are mandatory; but such as relate to the latter, as, for example, to matters of form, or time and manner, and not appearing essential to the judicial mind, may be regl,trded as directory only. 1.12,no.6-33