any court would be warranted in proceeding against it as such. Such attachments, and disputes concerning them, are very common under the laws of the state, yet no case is known where any person has been proceeded against as for a contempt, or otherwise criminally, for violating such an attachment. In any view which can be taken of it, the motion must be denied. Motion denied, without prejudice to any suit.
:Dist1'ict Court, W. D. Pennsylvania.
August 2, 1880.)
Libel for wages, etc. Clark Oids, for libellant. F. F. Marshall, for respondent. ACHESON, D. J. On June 18,1879, the steam barge James Davidson, having in tow the schooners Orgarita and J. C. King, left Chicago, bound to Frankfort, :Michigan, to load part of her tow with lumber, thence to Cheboygan, and thence to Buffalo or Tonawanda. The libellant was llo seaman upon the schooner King, and by the shipping articles, which are in the usual form, he, and the rest of the crew agreed "to work on any vessel in our tow, and on any lighter that may ·be used to load or lighten our vessels, and to work any place
SMITH V. SCHOONER J.
we are wanted in loading." The fleet reached Frankfllrt ()n the morning of Friday, June 20th, when the Orga;rita and King went inside the harbor for the purpose 'of loading with lumber. The Davidson, however, on account of an insufficiency of water in the harbor, was oompelled to remain outside in the lake. At the olose of the day's work on Saturday evening the Orgarita was loaded to nine feet, whioh was aU the water the harbor would allow, and i\ beoame necessary to finish on their load by putting it on the King, to be transferred at a proper point. On Sunday morning, after breakfast, . about 7 o'olock, the crews of the Orgarita and King, and part of the crew of the Davidson, were ordered to load the King with lumber to complete the cargo of the Orgarita. This ordet was promptly obeyed by all the men except four of the crew of the King, one of whom was the libellant. These four men declined to work. At first persuasion was tried to induce them to obey. ·They were informed that there would only be about six hours' work, and then they would have a rest of 30 hours, until the vessel got down to tb. liItraits at Cheboygan. Captain Sharkey, the master of the King, ordered them to go to work, but they positively refused. He then informed them they must either go to work or go ashore. They ohose the latter course and quit the vessel. The libellant oontends that he had a right to refuse to load the King because it was Sunday; that the order to work or go ashore was virtually an expUlsion from the Bchooner, and this without proper justification; and he sues for his wages for the whole voyage, and his travelling and other expenses. f The testimony for the libellant shows "that Frankfort is a land-locked harbor, and vessels are perfectly safe there in all kinds of weather." So far, then, as the schooners Orgarita and King are concerned, it may be conceded (especially in view of the Michigan Sunday law) that there was no necessity to justify the Sunday labor required of the appellant. But the steam barge Davidson was not able to enter the harbor. She lay loaded with a cargo of grain, out in the open awaiting her tow-the two schooners. Her safety was te be' considered. While the lake was not then "very rough,"· i.
appears "that the weather was threatening.· There was, indee<:l, no immediate danger to the Davidson, but the unoontradioted evidence is that "sp.e lay in a very dangerous place, " in the event of a change of weather. Captain Starkey swears it was his opinion that there was an "absolute necessity" to get the schooners loaded and out, for the safety of the DavidBon. James Carr, the master of the Orgarita, and James Davidson, the master of the steam barge and owner of the three vessels, testify respectively that they entertained a. similar opinion. Charles Cardnell, a mariner on- board the Orgarita, who helped to stow the lumber on the King, testifies: "1 considered it necessary for that loading to be done, on Sunday for the safety of the Davidson, or I would not have worked myself. I was a caulker on board the Orgarita, and was not obliged to work then." The alaority with which the other men, to the number of 40, worked in loading the King, indicates that they held the same view as the witness Cardnell. I am satisfied from all the evidence that, with reference to the situation of the Davidson, there was a. reasonable necessity for the Sunday labor which the libellant was called upon to perform. It was, however, for the master of the King, under the then existing circumstances, to determine whether the work of loading the schooner was necessary for the safety of the Davidson, and obedience to his orders was the plain duty of the libellant. It was not for him to set up his judgment against that of the master. That it was Sunday was no excuse for his refusal to perform the duty required of him, (The Richard Matt, 1 Biss. 440;) and I am of opinion that the master of the King had a clear right to discharge the libellant for his disobedience. Had these four rebellious Beamen bi:len permitted to remain on board their spirit of insubordination might have infected the rest of the crews. 1 think the libellant forfeited his wages for the five days he worked on the Jring, (The Richard Matt, supra,) and I will t.herefore diSJ;rliss his libel, but will deoree no costs against him. And now. to-wit. August 2, 1880, the libel in this case i. dismissed.
l1NI'rED STATES 17. PINOn..
THE UNITED STATES 'l1. PrNOVEll.
(District Oourt, S. D. NI?IID York. June 24,188O.)
1. NOTICE-PAPKR CONTAINING NOTICE.-A. person chargeable with the duty of giving a notice dues not perform that duty by handing the party entitled to notice a paper containing such notice, especially if the person to whom it is handed is directed to use it in a particular way and for a particular purpose, which does not require him to examine or read it. 2. AGENCy-PAYMENT-MISTAKE.-It is a general rule that an agent, known and treated with as such, cannot be compelled to pay back money received hy him under & mutual mistake of fact, and paid over to his principal. Bank of Oommerce v. Union Bank,3 N. Y. 230, and The Kingston Bank v. Ettinge, 40 N. Y. 391, considered. 3. SAME-SAME-SAME-AsSISTANT TREASURER OB' THE UNITED STATES.In such case an agent is liable for money received from an allliistant treasurer of the United States upon the redemption of a stolen bond, containing a forged indorsement, although the money has been paid over to the principal, upon the ground that such treasurer had no power to bind the United States by payment of the money, or to consent that such agent should pay the same over to his principal Oooke v. United States, 91 U. S. 389, followed. 4.. PRAC1'ICE-GENERAL AND SPECIAL VERDICTS.-Where a special verdict is inconsistent with a general verdict the former controls the latter. and the court must render judgment accordingly. N. Y. Code of eiv. Proc. 9 1188.
S. L. District Attorney, and P. L. Butler. Assistant District Attorney, for plaintiff. M. M. Budlong, for defendant. CHOATE, D. J. This was an action brought by the plaintiff to recover of the defendant the amount of a $500 government bond, paid by the assistant treasurer, at New York, to the defendant, on the presentation of the same at his office in New York. The bond was payable to the order of Robert Mickle. It had indorsed upon it an assignment purporting to be signed by Robert Mickle, transferring it to Levi H. Borne. It was overdue when presented for redemption. The defendant presented with it a power of attorney, duly acknowledged, from Levi H. Borne, who ·lived in Indiaua, anthorizing him, as aitorneyofsaid. Borne, to sell and assign or collect the said v.3,no.6-20