F. HUNT, JR.
(District Court, D. Ha88a"hu8ettB. April 17. 1888.)
Where a vessel, in a collision caused by the fault of another, lost her jibboom, bowsprit, head-gear, and rigging, and all her head-sails except the forll,stay sail, had her forward bulwarks stove, and her head carried away, luld, that the expense' of a tug to tow her through dangerous no.vigation to her home port was a proper item of damage recoverable against the vessel causing. the injury, and the action of the master in taking her to the home port, instead of going into an intermediate port for temporary repairs, would be respected, unless he, acted dishonestly or ignorantly.
At Law. Exception ,to allowance Ofiteni of damages. O. '1. RlJ,8sell, for libelant. -
NELSON, ,T. At the J9rmer hearing oOhis case, the bark Benjamin F. Hunt, .'fr., was found' in fault for a collision the three-masted schooner Anna' A. Booth,' on' the 30th of August, 1886, The caSe wall afterwards referred to an assessor, who has made his report, and ,has included as I part of the damages the amount of a bill of $200 paid by the libelant ,to the Boston Tow-Boat Company for the services of the tug Storm King in towing the schooner from the place of collision to New York. The of, the bark excepts to the allowance of this item, upon the ground that the expense at the tug was unnecessartly incurred.'l'heschoonei',at the time was bound on a voyage from' $t. John to New York, which latter port was ,also her home port. In collision she lost her jib-boom and. bowsprit, and all her heact-gearftrld rigging. Of her head-sails only her fore stay-sail remained. Her forward bulwarks were also and her head carried away. Under the schooner was justified in proceeding to New York, which wasbotl,1 her home port. and her port of discharge, for her permanent repairs. In her disabled condition she was clearly not bound to attempt the difficult and dangerous navigation of shoals and Viney:ml sound without aSsh;;tance. She had, indeed, the. alternative of going into some intermediate port for. temporary repairs., and then proceeding on her way. But this would in all ;pi'obability have increased, rather than diminished,the damages recoverableagainst the bark. The expense of such repairl and the demur,rage, would, have exceeded the cost of the service of the tug. :Besides, the master was uncertain as to the condition of the hull, and in good faith came to the conclusion that the prUdent course for bim to pursue was to take the tug. His decision ought not to be overruled except upon proof that he acted dishonestly or ignorantly. Exception is ovelTuled.
PLATT V. MANNING.
(OVrcuit Court, S. D. New York.
May 7, 1888.)·
CoURTS-JURISDICTION BY CONSENT-AMOUNT IN CONTROVERSY.
Defendant in a suit involving less than $2,000 was served with summonl!' February 2, 18:37, by an unauthorized person. He appeared generally on February 23, 1887, and answered. Held, that the appearance cured the defect in service, and gave the court jurisdiction, and therefore the case was riot affected by act 'Cone:. March 3, 1887, increasing the jurisdictional amonnt to $2,000.
At Law. Motion by defendant for a new trial. This is an action by Jonas H. Platt against Jerome F. ,Manning upon a promissory note given to the plaintiff for services rendered, and also to recover a small balance due upon a check drawn by ,the defendant. On the 24th of January, 1887 ,the clerk ofthis court issued aSUQlmons in the usual form. On the 2d of February, 1887, the summons and complaint were served on the defendant by an individual .who was neither the marshal nor the marshal's deputy. On the 23d of February, 1887 I the defendant appeared generally in the action by an attorney, and obtainedan extension of time to answer. The answer was served by the same attorney on or about the 12th of March, 1887. The action was tried at the. ,February circuit, 1888. The defendant having failed tOo prove a defense upon the merits, the court directed a verdict for the plaintiff in the sum of $650. The defendant thereupon moved for a new trial upon ,the minutes of the court, and upon exceptions. Pending this motion a stay was granted. D. Hotchki88 and William S. Maddox, for plaintiff. Jerome F. Manning, pj'O se.
COXE, J. As the defendant does not move upon a bill of exceptions, or even upon the minutes of the stenographer, nothing is bofore the court but the pleadings and a statement of fact relating to the question of jurisdiction. The defendant is not in a position, therefore, to review the proceedings upon the trial. But, as the arguments there presented are again asserted in the brief, it may be proper to say that, as the evidence is now recalled, the defendant entirely failed to establish a defense. The testimony was overwhelming, and hardly disputed, that the plaintiff rendered BeI'vices for the defendant, or at his request, for which the agreed to pay; that a note was given for these services, the note in suit being a renewal, with interest added. The plaintiff never knew anyone but the defendant in thetransaction; and the fact that the latter expected to collect the money from his clients' is, of course, immaterial. The theory that the note was an accoIllmodation note was wholly against the weight of evidence. As there was no material question of fact in. the dispute, and as the plaintiff was entitled to recover when the 'rested, it was the duty of the court to direct a verdict in his