'(District Oourt, So' D.
Although, tIle of a ship, or the ship'shusbanj, has no, mll,ritime lien for .. 1Uade in the usual course of his employment about the p1fsiness of the, ship, becaus\lmad\J presumably on the, <;redit of the owners.'Y9t when the show that his agency was an attendant upon his situation as mortgagee of the vessel, the pUl'pose of further security, his advances in the managemeJ;lt of the ship's business should be held to be made, not upon the 'of the mortgagor, but upon the credit of the vessel, and for the protection of his mortgage; and a maritime ·lien should, therefore, be sustained in 'his favor for such necessary payments and supplies as would be liens in favor of other persdns,'imd he should be deemed ' equitably subrogated to the liens paid by him.
2. SAME...,.Np !FOR The ,agen,t:s own not,'however, be
.for advancea al\d for as liens. . ,
lit. Admiralty. .;, 'W. R. Beebe,'proctot'for iibelant. John B. Whiting, proctor lor c!:",imant. BROWN, J. This caUse, 'having :been tried before a. commissioner to whom it was referred, comes before me upon exceptions to 'hhl'report in'ftJivot of·thErIibellintS' for the sum of $4;150.10. The 'lilielant is the receiver of Brett, Son & Co., who, in March, 1875, took a mortgage upon five-eighths of the bark, to secure $10,00() from John·C; Williams; to whom they advanced that money to aid in tbeconstruction of the vesseL The bark was built at 'N ova. Scotia;' was a British.vessel. At the 'time of the advances it'was agre-ed that Brett,' Son & Co.; for their security, should have· this mortgage, and also be the agents of the ship in New York. The Was filed in October, 1882, to recover a. balance due to Brett, Son & Co. for'various 'advances and payments on account of' the ship from Februaty 24 to 'Ma.ySl, 1882; and a supplementary'libel was aftez:watds filed for additional charges and payments. DtlI'ing several ye:a.rsafter the bark was finished, Williams was in eharg& Of' hernavigMion as master and as owner of five-eighths, BrtiH',iSOb.& .cd:; being her agents' in New York. Prior to the, -chai'ges for,whicn the libel is' brought, however, Williams had left the vessel, and was succeeded by the first mate, Smith, as master, who is not a part owner; and the· bushlessof the bark rema.ined under the management of Son & 0,;>., as before. . So ,far ,as appears from
evidence, the' bark liaveirun ifrom,New'!York to various pods and· back, an:ll ing charters, attending to' her outfili) paymen411ij(l:HllSl/1an<l the collection of freights, the hl1.ildiffof Brett, Son & Co. The' Of the 'other whoappaar,' as claimants of thevessel,rooeived their share 'of 'dividendsLfroni Brett, Son & Co. &s profits were made,' wbiIe,thepropor%ion; due to· Williams, !!os owner of the remaining five-eighths, was applied on'the! mortgage debt. ' . .. ., ,. Upon the hearing before ·the commissioner, sonie proofi1l' regard', to various items having beet!: giveh, the correttnes8 of thelibelafit's charges and credits 'Ware admitted by the; claimanta, reserving only the whether they' constitnted amaritinelienwMch:c01!lldba· enforced in rem against the vessel. " ;liT Ifthe situation of Brett,8on '&'00., andtheirrela:tion'to'tneitdHp' and her owners, were merely that efJ general agEmtsi or 'ship's thusband, making the advances he recove'redmerely in the vrdinary course oftheir'duties aas\!ch, 1 should be' compelledrtb hold; upon the authorities I that. they have no ;ship therElfdr, , although the'ijwners would be: peti30nally liable to them for tira.l shares. 1n the agent, 01' to act upon the personal responsibility only.B:4l rep:resents them in advancingmoIiOys or :in paying chitrgel5.,: His their aClt, and; ordiilatily,tntist'be preslimed-to:be: 'to' disthe ship from burdens, not to charge her, or to retain. ,liensl upon her, througH liny presumM equitable aseignment or ,subrogntion. The Larch, 2 Curt. 427; The Sa,.ahJ;· Weem.2'Low,"m>5,'562j 'The' Tangier, 2 Low. 7. Butinthisoltse the 'ageney of the vesse}Jwas' evidently attendantnpon the mortgage, and designed as a fMths!" security for the payment 01 the money advanced. Wh'en,Capt. Williams left the no: oonsidarable pa,rt oitha been paid, and from that time, at lett.st, Brett, Son &1:00.: :nad exoluof worksive management of the business 6fthe ship for tJ;1e :, ing off the mortgage d e b t . " Under such circomsta.n'Ces;it sMms to me that it :cannotbapre-' sumedthat the advallces and payments made by Brett, SiilIi; &;C6.,ill: +11e business of the ship, :were made upon ·the pergonal of owner. On the contrary, they were charges and payments necessarily made by Brett, Son & Co. in their endeavor to realize something to the credit of their mortgage on five-eighths of the veRsel, and, in my judgment should be deemed to be nude llIlon the creJit of the ves-
sel. This, 'it ,seems to me, would' be clearly so, as respects Williams, owner of the five-eighths, and as respects the three-eighths owned by the claimants. I think the same inference should be drawn from the faet that acquiesoed in the management of the vessel by Brett, Son & Co., and must have known the circumstanqes,' their situation as mortgagees, and the object of the manageruentof the ship by them. As all these payments and adthe cla,imants' knowledge and acquiescence, they would be, clearly, personally liable to Brett, Son & Co. Jor their shares of' thea6,necessary pa:yI1umts and disbursements. To them it does not ItPpea;r to have been Qf any practical account whether the the al',econsideted to have been maQ¢l:1Il:p.Pn credit of the, vessel or .upon, their own personal credit., The former was clearly the case as tl),the, and ftom that, I ,thi,nJi"arllimilar' intention should be inferred as to the three-eighths. All the evidence pqint,s to the, Qredit of the vessel and the recovery of the mortgfl,ge debt .as theg1:;O<ij;Uds ,of all the advances and paymentsby:arett, Son &; Co.; and ,<juch l I think, wust, in.this. case,be con'IMe,red' as. the ,understa,ndingof. .aJ.lthe parties. Liens arising in the course of the business of the ship in favor of other persons would, have priodtyover the mortgage lien. aud in paying the amounts of such pt,ior ,liens for the protection of: their mortgage interest, Bon & Co. should be deemed equitably subrogated C(1tbot, Abb. Adm. 1.50; The Tangier, 2.Low. 7; The Sarah J. Weed, Id.562... ' For these reasons I, think the present case should be held to be an exception ordinary rule as respects a ship's husband or general agent, and that the claim of. a maritime lien by Brett, Son & Co. should be sustained for such necessary charges and payments for . supplies or other necessaries furnished in the business of the ship as would have constituted liens if furnished by other persons, as being made in this case upon the credit of the vessel, and upon an equitable subrogation to the liens paid. Their own commissions, however, on the charter procured by them, should not be allowed as a maritime lien, nor commif3sions on their own advances, amounting together to $243.90. With this deduction the report should be con· firmed, and a decree entered accordingly for the libelant, with costs.
OBEGON B'Y... N. 00.
and others v.
By. & N. Co.
& C. By. Co.
(Oireuit Oowrt, D. Oregon.
ExCEPTION8 FOR IMPERTINENCE.
Exceptions to a bill for impertInence will not oe allowed, unless it Is clear matthat 'the matter excepted to cannot be material to the plaintiffs' case ;' ters which may be 80 m.aterial are not necessarily impertinent because they are such as the court may judicially take notice of.; nor is it necessarily impertinent in a bill for an injunction to refel!'to rehent adjudications of the; 'question .in'V6lved, in similar cases ill other courts.. , ,:' :, ',
ACT OF INCORPORATION-CHA.NGE OF CORPORATE NAME.
By an act of the,legislature of Colorado of, p:ebfuary 5, 1866,\cel;tainpers:>ns .were incorporated as the" Holladay Overland' Mail & Ex.presilCompany," with' the privilege and power of chariging its ;'name by an "order" of' its directors" approved" by the'stockholders; and the bill alleges thaUhe stdak. holders;,tn l?ursu.1nce of said IWt, ,name ,of tile corporation to "Wells" Fargp & Co.," which change was afterwards approved by the legislature by the act of .January26, 1872. Held, (1) that until the ccbitrary'appears; it should- be pre:romed that the tinal actianof the stockholders was 'had,fa pursuance of the order of the directors;, (2) tbat essentilll act in the proceed,. ing was the vote of the .stockholders. to which the order of, the board was therefore thatpflrtion t1le act providingfol' stich or- only preliminary,' der ought to be considered merely directory; and (8)8emble, that the act of 1872, approving the change, is not in cOllflict with section 1889 of the Revised 'Statutes, forbiddipg the legislat1,ue of Oolorado from granting .. private charters or especial privileges."
This term is probably a sufficIent rlescription of the accommodation or service IS ex.pected and Illay be rewhich a railway or other transportation quired to furnish a person or corporation engaged in the express business.
This business bas come to be a recognized branch of the carrying trade, of which the court will take notice; and a railway or other corporation created serve the public asa common carrier, is bound to furnish the by the state usual and proper facilities to persons engarsed in such bUsiness, who are so far the agents, bailees, and representatives of the public.
DECISIONS OF THE:UNITED STATES CmCUIT CoURTS.
The circuit courts of the UnftedStates arc co.ordinate, trihunals, constituting a single system, and the decisions of one of them, deliberately made, ought usually to be regarded as decisive of the question involved, until otherwise determined'by the supreme court.
COMPENSATION OF A HAlLWAY CoRPORATION.
Section 86 of, the incorporation act, (Or. Laws, 582,) whIch declares a railway corporation formed thereunder to be a common carrier, and empowers it "to collect and receive such tolls or freights for transportation of persons or property thereon as it may prescribe," authorizes such cOl'Doration to take reao