a mile distant, or less than three lengths, and when within some 11) or 20seoc>ndsof collision, and this attempt was immediately reversed by an to move on at all possible speed. It is most probable, from the situation, that a collision at that time was unavoidable, and that the order 'by the captain of the Adelaide to go at all speed offered the only' chance of escape then remaining, and that this wonld have been successful if the Grand Republic had earlier slackened speed, and, stopped and backed seasonably, as she was bound to do. Although I am not prepared, therefore, to hold the Adelaide in fault for this: last order, nor for her hard-a-port wheel in connection with it, this does not in the least diminish her responsibility for her previous neglect of rule 21, which required her to slacken her speed from the time of the first contrary signals, when there arose obvious risk of -collision. Had the Adelaide then slackened her speed, she would after'lfll.rds· have had no difficulty: in reversing at once, if necessary, and thus have easily avoided the collision. The damages must, therefore, be'apportioned between the two ves'sels,f'and a reference ordered to compute the amonnt; and, at the .same time,proof may be taken as to the rights and interests of tha various libelants and petitioners.
(Oircuit Court, E. D. Penna.1JlfJania.
1. ADMiRALTY PIiAOTICE-Al'PEAL-SUPER8EDEAS.
An appeal to, the supreme court o.f the United States from the judgment of the circuit court, a decree made by the district court, duly entered, with stipulations approved by the court, does not operate as a 'Ruperaedeaa, or vacate the decree, so as to prevent the entry of judgment agailist the stipulator& in the district and circuit courts.
2.,JUDGU\J:NT 0:1'1 ApPEAL-LmN OF'. . '
Upon an appeal to the supreme court, duly entered, with stipulations approved by the court, a judgment will be entered against the stipulators in the' district and circuit courts, and such judgment will remain 8S a lien against them until ihe appeal t(l the supreme court ,shall have been flna])y determined.
Petition to Vacate the Entry of Judgment against stipulators the circuit courts in admiralty. '
_Reported by' Albe. t B.Guilbert, Esq., of the Philadelphia bar.
THE BELGENLAND. :
In a cause of libel for collision by the bark Luna againsttlie steamship Belgenland, the district court decreed, in favor of the libelant, and upon appeal to the circuit court this dec'ree was affirmed. The Belgenland, 5 FED. REP. 86; 9 _FED. REP. 126; ld. 576. The petition of William G. Warden et al. wca.s now presented to the circuit court, setting forth that upon the same day that the circuit court firmed Baid decree an appeal therefrom to the supreme court of the United States was duly perfected, and a bGnd filed, .with sureties, in the sum of $70,000, duly approved by the court, but that judgment had been entered against the petitioners as stipulators in the district and circuit courts for $51,954.14, and that this judgment was entered as a lien againBt all the real estate of the petitioners. The petition further alleged that each olthe: appeals was a. Jlildeas, and that, therefore, the' judgment had been improvidently entered, and prayed that the same might be'vacated. The condition Qf the stipulation taken in the district court was:
"Now if the ll<l;id claimant shall ;well ,and truly abide by all prders, inter19cutpry or final, of pf court in the suit may be he.reafter dePfnding, a.nd fu\fiU and perform, t1.le judgmen,t ·or decree which may be rendered In the' and.aiso pay all costs, this stipulation shall be void, otherwise in force, and execution may issue by virtue thereof at one and the same tiille against any or all the parties to this stipulation."
The condition of the bond tiled upon appeal to the Bupreme court was that appellant Bhall prosecute his appeal with effect. Morton P. Henry, for petitionerB. An appeal is a supersedeas, and vacates the judgment of the district and circuit courts. The cause is heard de novo upon appeal, and no judgment can be entered up as a lien until after final hearing. The General Pinkney, 5 Cranch, 281; U. S. Y. Preston, 3 Pet. 66; The New Orlea.ns, 17 Blatch!. 216.
Henry Flanders, contra.
The stipulator takes the place of the res, and if the decree be for the libelant a judgment should be entered against the stipulator. The Alligator, 1 Gall. 145; The Wanata, 95 U. S. 600-616; Rev. St. §§ 941,967; Ben. Adm. § 547. BUTLER, J., (ll,fcKENNAN, J., concurr·ing.) Counsel for the petitioners admits that the court cannot interfere with the decree ex.cept upon the ground that it was entered without authority, and is .(herefore null and void-the record having been removed by appeal
and the term bavmg passed. It is sufficient, therefore, to say that I do not doubt the court's authority to enter the decree against the stipulators, as it did. The uniform practice in the district has been to do so, under similar circumstances, and it is, in my judgment, sustained, not only by the general authority of courts of admiralty everywhere, but here especially, by the act of congress relating to this subject, approved March 8, 184'7. Whether, in view of the fact that new sureties are required on taking an appeal,-thus securing the libelant under such circumstances beyond all danger of loss,-it would be wise to so mould the decree as to avoid creating a. lien against the stipulators pending the appeal, may well be considered hereafter. The inconvenience of sucha lien may be very great, and the danger of ha.ving.to submit to it may deter the most desirable individuals for such a service from assum. ingthe obliga.tions of stipulators.
The petitioners afteI'wards .presented .3 petition to the supreme court of the United States for a mand<:unus to compel a modification of the decree as prayed above, which has been refused. 2 Sup. Ct. Rep. 864.-[REP.
FREENEY V. FIUST NAT · .IJANK OE fLA'l"l'o:iMOUTH.
433 and others.
FREENEY and others v . .FIRST
NAT. BANK OF PLATTSMOUTH
(Oircuit Court, P. Nebraska.
As it is the settled law of Nebraska that the county or probate court llas original and exclusive jurisdiction in the probate of a will, and the distribution of the estate therein, and that its judgment and order in such matter is ti.nal and conclusive unless appealed from, this court can take no step that would interfere with the administration and distribution of an estate in course of administration in such court. .
·This court can neither enjoin 'the executor appointed by the probate court from proceeding in. the his dllties, an I from attempting to take possession of the estate, nor the probate court itself from proceeding further.
SAME-PLEA TO IN STATE ColmTS.
Where the parties have an ample uy proceedings in the state' courts, and this court clearly has no jurisdiction over most of the matters complained of, and as to. the others the question of jurisdiction is extremely doulJtfuJ, a plea to the jurisdiction should be sustained.
In Equity. Plea to the jurisdiation of the court. M. A. Hartigan and Webster tf Gaylord, for cOlhplamant. J. C. Cowin, for respondents. MCCRARY, J. The difficulties in the way of maintaining the jurisdiction of this court are the following: 1. It is now the settled law of Nebraska that the county or probate court has original and exclusive jurisdiction in the probate of a will, and that its judgment and order in such a matter is final and con· clusive unless appealed from. Loosemore v. Smith, 11 N.W. Rep. 493. It follows that we have no power to grant any relief except such as might be granted upon the assumption that the will is valid. 2. The statutes of Nebraska not only give the courts of probate exclusive jurisdiction of the probate of wills, but also of the administration of the estates of deceased persons. Compo St. Neb. p. 205, § 3. Thus it appears that we can take step that would interfere with the administration of the estate by the probate court. It is said, however, that courts of chancery have a general jurisdiction to decree a distribution of an estate among the persons entitled to share therein. No doubt this is true as a general proposition, but we think it must also be true that, while the estate is in the hands of the proper probate court for the purposes of administration, no other court can in. terfere with it for the purpose of dist1·ibution. Indeed, it is not easy