of which he referrea its owner to the cOmpany for compensation. This notice and this knowledge bound Devlanto make a thorough examination, and to warn away all other boats from the place of the accident, or, at least, not to invite or direct them there until the obstruction was removed. This dnty pertained to him as superintendent of the defendants' business. The evidence shows that the examination made by Devlan was inefficient, and apparently of a perfunctory character, with no real desire to find the obstruction. Had he wished to find it, nothing would have been easier than to call to his aid his employe, who knew just where it was, instead of saying that he would discharge the man if he knew who he was. After the previous boat had caught, and full notice of this had been given to Devlan, it is but just that any subsequent damage should be made good by him and his principals, rather than by innocent persons who moved their boats to the same place by his directions without any notice of danger. The defendants were fully represented by Devlan, and are bound by his neglect. The libelant is therefore entitled to judgment. A reference may be taken to compute the damages, and, at the same time, any further evidence desired by either party may be given as to the exact place, nature, and ex.tent of the injury, and of the previous condition of the boat.
HUNDRED ',AND FIFU-SIX BUNDLES
(Di8trict Oourt, N. D. Ne'IJJ York. 1. 2.
CARRIER OF' GOODs-BILL OF' LADING-QUANTITY Oli' GOODS SHIPPED.
A bill of lading is not conclusive upon a carrier of goods as, to the quantity received for carriage, but, like other receipts, may be explained.
SAME-EvIDENCE OF' Loss OF' GoODs-ACTION TO RECOVER FREIGHT-Oli'FSET.
Upon examination of, the evidence in this case, held, that it does not show conclusively that the alleged loss of a portion of the cargo occurred while the same was on the schooner, and that damages for such loss could not, in the abo sence of proof that the carrier was at fault, be allowed as an offset in an action to recover the freight.
In Admira.lty. Cook' if' Fitzgerald, for libelant. Marshall, et Wilson, for claimant. This is QBaction for freight. The defense is non-delivery of a. part of the cargo. On the tenth of May, 1884, the libelant, who is the owner and master of the schooner Seabird, for and in concsiderationofthe ButtI of $121.65, agreed to convey from New Baltimore, 'Michigan, to Buffalo, New York, certain' property described in the bill of lading as "5,256 bundles of staves and 259 barrels of headAs, no tally was made at New Baltimore, the only evidence at
BROUTY ". 5,258 BUNDLES Oll' ..ELK BTA VU·
.that time of the number placed on board is furnished by the bill of lading. . .On or about the sixteenth of May the Seabird arrived at the port of Buffalo. The consignee was duly notified and the cargo immediately discharged. The greater portion thereof was, the same day, placed in freight cars by stevedores employed by the claimant. Two and a half car-loads, however, remained on the dock all night. When the cars were loaded they were sealed, and were soon afterwards, by order of the claimant, conveyed to his manufactory, five or six miles from the dock, where they remained on a siding till June 28th. On that day a tally was commenced, which was not completed till July 5th. It was then that the deficiency of 631 bundles of staves and 5 barrels of heading was discovered. So far as is disclosed by the evidence, no other authentic tally was made at any time. The claimant refused to pay the freight until the libelant furnished him a statement showing that the full number called for by the bill of lading had been delivered. He now seeks to offset against the freight the value of the missing property. There is no theory upon which he should be permitted to do this. The libelant did all that he was bound to do. There is not a particle of evidence that any of the cargo was lost, stolen, or destroyed while in his possession. It was not of a character to e'Keite the cupidity of seamen. It could not be secreted or easily carried away, and it is absurd to suppose that it was wantonly destroyed. No motive, or opportunity even, for fraud has been. shown; no negligence has been proved. Indeed, nothing has been found in the testimony which would justify . the court in the shadow of a suspicion against the libelant or any of his crew. Every witness who speaks upon the SUbject swears that all of the cargo put on board the Seabird at New Baltimore was delivered at Buffalo. This fact must be regarded ,as conclusively established. It is argued for the claimant that the libelant by the allegations of his libel and the statement in the bill oOading signed by him. That having receipted for 5,2.56 bundles and 259 barrels, he will not now be permitted to say that a less number was, placed on his vessel. Assuming this position to be well founded;there is, not, as before stated, sufficient to charge the loss upon the libelant. The tally, showing the alleged deficiencY, was not made untiL after the property had remained six weeks in freight cars on a side track ill a populous city. The libelant may, with l'eason, retol't that if tions and suspicions are to. be indulged in" it is quite as reasonable weeks that the propto suppose that the loss ?ccurred during .ertywas on land as durmg the oJ;le week 1t was on the water. Had claimant brought an action for.dama,ges founded upon such proof, itwould have beeu the duty of the court tQdismiss it.. The evidence is too speculative and conjectural. But the 'billof.ladingisDotconclusive upon the libelant; like other receipts it may be explained. Abbe v. Eaton, 51 N. Y. 410. It would be an intolerable doctrine
to hold the cartier'irrevocably bound by every statement signed b, him in the bustle and excitement of commerce. He should always be permitted to show the truth. Whether the mistake or loss oc. curred at New Baltimore or Buffalo is not material so long as no fault can be imputed to the libelant. There should be a decree for the libelant, with costs.
(Dist1'l'ct Uourt, N. D. New York.
ADMIRALTY PRACTICE-MARSHAL'S FEES-COMMISSIONS.
Where a marshal has been paid his fees and commissions on the sale of a vessel under decree of t.he dist.rict.· court, and a claimant files a petition, on whicil monition is issued, asking that the balance of the proceeds of the sale in. t he registrY of the court be paid to him, and it so ordered, the marshal is n()t entitled, in addition to his fees for serving the process, to a commission on the amount paid to the claimant.
Appeal from Taxation of Marshal's Costs. James A. Murray, for marshal. William B. Hoyt, for respondent. COXE, J. In May, 1884, the propeller Colorado was sold by the marshal, under a decree, and the procee.ds were paid into court. His fees and commissions for this service, estimated on the entire amount realized, were paid him in full. .After discharging the debt of the libelants there still remained a large sum in the registry of the court. On the seventh of June, 1884, the present proceeding was instituted by Frederick L. Danforth, as receiver, to reach the amount so remaining. A petition was filed and a monition issued which was placed in the hands of the marshal for sen'ice.· In addition to his fees for serving mesne process, mileage, etc., he charged $49.58 "per cent. on amount recovered." This item was disallowed by the clerk. The marshal now appeals. The clerk was his commissions. clearly correct. The marshal had already The money was in the registry of the court and under its control. No action: on the part of the marshal was necessary to restore it to its rightful owner. When its owner was found the clerk was directed to pay it over. That was all. No process was required and none was issued, there was ·no sale and no settlement. There is no section of the fee-bill which directly or indirectly makes such a "charge permissible, and it is not a case where the discretionary power of the eourt on the subject of costs can be invoked. Taxation affirmed.