There was a light breeze from thenorth-w6st, and the .ebb tide made a ripple on the sand where the vessel lay aground.. On sighting the Bryant" the Cousins ran down iroql. the windward and hove·to some distance astern and south of the former, from whence the libelant, with the aid of another oarsman, undertookto pull up to the Bryant in a small boat, but on account of the wind and tide, particularly the latter, was unable to do so, and had to retO'rn to the schooner, which b-y this time had drifted· further to the southwest.' The schooner then beat up into the "icinity of the Bryant and hove-to again under the lee of the latter, in comparativ:ely still water, from whence the libelant; with the .aidof the oarsman,boa.rded her without :any trouble; the latter taking the boat ,back to the schooner, which then, by the libelant's direction, stood out to ,sea. In all this thflre wag sometime and labor spent, much of it'because of the libelant's mistake in 'not bringing his schooner 'aroundunder the lee of the Bryant in-the first instance, but, certainlyno."extraordinary danger or risk." And while on the vessel the libelant incurred nosuch dan· geror 'risk; for if there was any immediate prospect or probability of her going to pieces on the sand or sinking in the deep water, as there was not the least, all hands could safely have taken to the boats. But the libelant laas hilllself furnished very satisfactory, evidence that he did not,at the time, regard this service as dangerous,or otherwise than an ordinary pilot service·.' On September. 6th, it appears that he made out a bill against the Bryant for "pilotage" at the prescribed rates" amounting to the sum of $136, and delivered the same to the agent of the schooner,forc611ectiop, and as' his report of the transaction, which was paid accordingly. Nothing thenappearsto'have been said or thouglat of any olaim for salvage on account of any unusual danger or risk incurred by the libelant in this service. There must 'be, a decree for the claimant dismissing the libel, and for costs .
THE PRIDE OF AlIfE:aICA.
(District Court. N. D. New York.
MARITlMB LIEN--DHAFTRECOGNIZING THE LIEN.
JaIl;uary, 1884. 1
Where amaritimel1en attaches ,to a vessel, and owner gIves a draft for the debt, the draft in terms recognizing, confirming. and continuing the lien, an assignee of the'dra.!t !lud claim Can the lien against the vessel:'
George N. Burt, for intervenor. Webb Ii: Benedict, for owner.
Cou, J. In September, 1881, the schooner Pride of America was tying in the harbor of Cheboygan, Michigan, in a disabled condition.
As it was not possible to proceed under sail, an agreement was made with the tug George W. Wood to tow her to Milwaukee for $700. 1'he journey was safely and the master and owner of the schooner-James McDonnell-executed a draft for the amount. Indorsed thereon was a memorandum, signed by him as follows: "It is understood ihis draft takes the place of a receipted tow bill, and is good against the within-named vessel her owner and underwriters, until paid." The draft was not paid. Its holder, who is also the assignee of the claim, now seeks to enforce his demand against the remnants in the registry of the court, the vessel having been heretofore sold upon a decree in favor of seamen. That the intervenor has a valid lien there can be little doubt. The vessel was bound to the owner of the tug, the towage contract was executed and the maritime lien fully established. The Queen of the East, 12 FED. REP. 165. The services rendered were meritorious and satisfactory. It must have been the intention of all concerned that the lien should be continued. It is hardly conceivable that the tug would have consented to release the vessel and give a credit of 60 days, upon any other terms. That a sane man would thus surrender ample security and take in lieu thereof the personal obligation of a stranger, an alien ; nd a sailor, of whose responsibility he could know but little, is not within the limits of reasonable conjecture. The draft, with the indorsement, was given for a debt for which the vessel was liable, and it was given by her master a.nd owner. The lien was not thereby divested, but continues till the draft is paid. The Woodland, 104 U. S. 180. It was the evident purpose of the owner in executing a negotiable instrument, that the lien should be recognized, confirmed, and continued, in the hands of all bona fide holders. The reasons for the rule which discharges the lien in cases where there has been an assignment of claims for mariners' wages, etc., has little pertinency to the present inquiry. The Norfolk and Union, 2 Hughes, 123. Here the owner of the vessel to which the lien attached, in consideration of the credit given, expressly consented that the security should remain unimpaired. How can he now escape the· consequences of his own act, especially when he is seeking to avoid the payment of a valid claim the justice of which he has repeatedly recognized? The court should not permit merely technical defenses to prevail against a meritorious claim. Such considerations may be entertained in aid of equity, but not to defeat it. The intervenor is entitled to a decree for $700 and interest from December 5, 1881, besides costs. The commissioner's fees amounting to $18 should first be paid from the fund.
UNITED STATES UNITED STATES
ALEXANDRIA and another.
(Oircuit Oourt, E. lJ. Virginia. October 6, 1882:)
Time does not run against the sovereign government.
LACHES-AGENTS OF GOVEUNMEN'f.
'fhe government is not chargeable with laches by reason of the procrastination of Its officers.
LAPSE OF TIME-PUBI,IC COltPORATION8.
Equity will not refuse to enforce an obligation merely because of the lapse of time, unless evidence has been lost, or the rights of third parties have become involved, or the personal relations between the parties hl\ve been so much altered as to change the essential character of the obligation. Governments and. municipal corporations are of such a permanent nature that their mutual rela- . tions are presumauly unaffected by the lapse of years.
SPECIFIC PERFORMANCE-AFTER-ACQUIRED TrrLE.
A party to transfer property which he does not own at the time, cannot refuse to perform his contract after acquiring title. One who, by his own fault, is unable to perform a part of his contract, cannot upon that account resist II bill for the specific performance of the rest.
Ii. SAME-ONLY PART PERFORMANCE POSSIBLE,
SAME-PECUNIARY DAMAGES REFUSED.
Where congress authorized an advance of money to a city upon the surrender to the government of stock which it held, and the money was advanced but the stock was not transferred, held that, though specific performance of the obligation to transfer the stock would be decreed, 110 pecuniary damages could be awarded.
In Equity. H. H. Wells, for plaintiff. Kemper, Johnson tt Stewart, for defendants. HUGHES, J. The cities of Georgetown, Washington, and Alexandria united their corporate credit and resources with the United States, Virginia, and Maryland in the construction of the Chesapeake & Ohio canal. About the year 1836 they had exhausted themselves in this behalf, and the canal was unfinished. They applied to con· gress for relief. The form in which this relief should be given was not definitely settled upon in the first instance. But it finally took the form indicated in the" Act for the relief of the several corporate cities of the District of Columbia," passed May 20, 1836. 5 St. at Large, 32. The act provided that the three cities should convey the legal and equitable title in their stock to the secretary of the treasury, to be held in trust for the United States, with power in Jhe secretary of the treasury "at such times, within ten years, as may be most favorable for the sale of the said stock, to dispose thereof at public sale, and reimburse to the United States such sums as may have been paid under the provisions of this act;" and "if any surplus remain after such reimbursement, he shall pay over such surplus to aaid cities." The plan was that the United States should pay cer· tain debts of the three several cities, incurred on account of the canal, taking in lieu of them the shares they respectively held in the canal company. It was stated in argument at bar that the debts thus paid v.19,no.9-39