sion, of course, but it is well enough to suggest that we should reserve any sanction of the idea that "likeness and similitude" are in all respects essential under these statutes to establish a counterfeit. 'fhe importance of an allegation as to the existence of a genuine note is made somewhat exceptionally prominent by the facts of this case. Here are two counterfeit "compound-interest treasury notes," nearly a quarter of a century old, which have lain in "the chest"-as she expressed it-of an old colored for nearly that length of time, having been brought home "after the surrender," by her husband, "from the war." The genuine, as the witnesses say, have been long since withdrawn from circulation, and none has been seen by any of the experts for eight or ten years. The truth is, they have been <:J.uite forgotten as a part of the circulation, or as ever having had any existence at all. It does seem to me that under such circumstances an allegation in some form of their existence formerly would have been best, although I have no doubt the indictment is good, technically, without it. It follows substantially the precedents. Whart. Prec. Ind. Nos. 312,315; Bish·. Dir. & Forms, §§ 331 et seq., 453 et seq; Motion overruled.
BROOMAN 'iI. THE WILLIAM
(Oircuit Oourt, S. D. New York. October 15. 1888.)
COLLISION-FAILURE TO COMPLY WITH SIGNAL.
The steam-tug Lee. coming down North river with libelant's boat In tow, while roundin$ to go to the Erie elevator. Jersey City, was delayed by another tow running Inside of her. She whistled twice. the latter of which was beard and answered b;r an assenting whistle from the Vanderbilt, coming Up' the river. The assentmgsignal meant that the Vanderbilt would keep to the eastward. out of the way, and that the Lee might wait in safety. Libelant's boat was in view of the Vanderbilt. and was gradualIy swinging down the river, until it came into collision with the Vanderbilt. The testimony as to whether the Vanderbilt immediately stopped and backed was conflicting. Held, that the finding of the district court that the Vanderbilt did not stop and back, or keep out of the way, as indicated oyher signal, and that she was liable for the injury, cannot be disturbed.
In Admiralty. On appeal from district court. Libel by Thomas Brooman against the steam-tug William H.Vandel"bilt, John H. Starin, claimant, and the steam-tug John Lee, Thotnas Curran and others, claimants, for damages for the collision of the Will· iam H. Vanderbilt withlibelallt's hoat in tow by-the John Lee.· In: the district court Judge BROWN delivered the f(,Hawing opinion:.
"The steam-tug Lee, coming down the North river with the libelabt'sboat in tow, while rounding in order· tQ go to the· Erie elevator, J orsey; City; was
THE WII,LIAM H.
delayed by another tow running inside of her. While waiting a few minutes to let that tow pass to the north, the libelant's boat was run into by the Vanderbilt coming up river from below. "I am satisfied that the Lee, in running in towards the New Jersey shore. went as near to the inside tawas was safe. No fault can be predicated ot her in this respect. "The Lee had a right to turn around in order to make her slip, and to stop for any obstacle in the way, until it had passed; but she had no right to turn so sUddenly as to make the necessary swing of her tow, which was in all nearly 400 feet long, dangero\ls to vessels coming up the river. I am satisfied that the unexpected long swing of the tow in prOXimity to the Vanderbilt was one cause of the collision, though the main cause, notwithstanding the Vanderbilt's testimony, was the failure to stop and back at once after her assenting whistle. I am satisfied that there was ample time and space to avoid the tow. had she reversed immediately after her assenting whistle. There is a difference of over 600 feet in the estimates given as to the distance of the Lee from the Vanderbilt when the whistles were exchanged between them. The Vanderbilt's witnesses are more likely correct as to her own positionat that time,i. e., opposite the stock-dock. A person looking from aboard the Lee would suppose the Vanderbilt furthersouth than she really was. The Lee. had preViously given a signal of one whistle, when the Vanderbilt was one pier further down the river. which was not answered, because not h':la.rd, 'l'heLee then stopped her engines, and gave It second whistle, but went on again as soon as the answer of one whistle from the Vanderbilt was received. Before this exchange of whistles the pilot of the Van<ierbilt supposed the Lee intended to wait and let the Vanderbiltgo inside of her. When the whistles were exchanged, the courses of the two tugs were crossing. The Vanderbilt, having the Lee and her tow on her own starboard hand, was bound to keep out of the way of the Lee and her tow. The answer of one whistle was an assent by the Vanderbilt and an agreement to go to the eastward. The tow was in sight. The Vandtlrbilt could see its length; and if her pilot thought there was not room to maneuver in accordance with the signals, and keep out of the way of the tow, she was bound to give danger signals, and not to have misled the Lee byauswering witha signal of one whistle, that the Lee should go ahead and cross the Vanderbilt's bow. It must be assumed from the assenting signal aud the Lee's testimony that there was room for the Lee to go ahead safely towards the dock, under all the circumstances of the situation. One of these circumstances was the inside tow, which was a partial obstruction, and required the Lee to wait, when she had got near ber, till the tow had got out of the way, and during this time the tow was necessarily gradually swinging down river. "It is immaterial just what was the precise position or heading of the Lee H she went as far in towards the tawas was safe, which I consider proved. It was not the duty of the Lee to go on up river, and away from her destination, in order to keep out of the way of the Vanderbilt, unless a special emergency Ilrose requiring it, of which the Lee hart knowledge in time to avert collision by that means. In general, the had the right to wait, holding her place in the river. as she did, till she could go into her slip, and. having given the Vanderbilt timely notice to keep away to the eastward, or avoid her by stopping, and having recei ved an assent thereto, she had a right to expect the VanderlJilt'to do one or the other, and thus avoid her tow. The Vanderbilt's signal I must consider confirmatury proof of the Lee's testimony that she had time and space; for keeping away; and that the only' reason she did not closo was because she either neglected to observe the inside tow and did not allow lor the Lee'fI necessary stop, or else miscalculated the length of the tow and .its swing, and did not stop and back as soon as she might and ought to have
done. I see no legal fault in the Lee, and think that the Vanderbilt must be' held alone to blame. "Had the Lee, in the situation as it actually existed during a minute before the collision, under the prior assenting signals, had clear reason to suppose that the Vanderbilt was not either stopping or backing in time, or not going to the eastward in time to avoid colliding with the end of her tow, it would doubtless have been a fault in the Lee that she did not hook up and go ahpad so as to aid in taking her out of the impending danger of collision. But the Lee was 400 feet away from the end of her tow, and it had all'eady swung nearly straight down river. It was not possible, I think, for the pilot of the Lee, in that situation, to have perceived that there was any necessity for him to hook up strong, in time to have started such a tow so as to be of any service. Had there appeared to be dangel', or need of the Lee's aid, it seems fair to as· sume, after the Vanderbilt's assenting signals had been given, that some further notice of danger or signal to the 1.ee should have been given by the Vanderbilt. No such notice or further signals were given by the Vanderbilt, and I cannot find, therefore, that the pilot of the Lee was chargeable with any timely notice that the end of his tow was in danger through any inability 01' neglect of the Vanderbilt so as to require him to deviate from the ordinary course in waiting until the inside tow had moved out of the way. The real cause of the collision, I am satisfied, was partly miscalculation by the Vanderbilt, but chiefly her tardiness in reversing after her assenting signal. "The libelant is entitled to judgment against the VanderbJIt, with costa. As againsttbe Lee, the libel should be dismissed, with oost$." Whereupon' respondents appeal. W. W. Goodrich, for Starin. Peter Alexander, for Curran. Josiah A. Hyland, for libelant.
LACOMBE, J. I see no reason for reversing the decree of' the court below. There is a conflict of testimony as to whether the Vanderbilt rlid or did not stop and back at once after giving her assenting whistle. The learned district judge, who heard the witnesses, credited those who testified that she did not so stop and back, and disbelieved those who swore that she did.· There is nothing in the case which makes that testimony so incredible that this court, which has not heard the witnesses, and is therefore without facilities for estimating the value of the personal equation, with which all human evidence is to be tested, should disturb his finding on that point. He has also found that the Lee stopped only to permit the inside tow to pass, going as near to such tow as was necessary and proper. 'The evidence abundantly sustains that finding. The Lee's tow, though a long one,wlls not improperly so, in view of the presence of ice ill the river. She had a right to stand to for her slip; and when the Vanderbilt, whose pilot could see both the length of the Lee's tow and the presence of the inside tow, avoidance of which would pecessarily delay the Lee, gave its assenting whistle, the Lee was justified in carrying out the maneuver which it had offered to make, au<i which would have been successfully accomplished had the Vanderbilt stopped and backed at once.
COOPER"'. THE SARATOGA.
(Diltrlct Oowrt, 8. ,D. NeLD York.
December 13, 1888
COLLISION-BETWEEN STEAM AND SAIL-NIGHT-NARROW CHANNEL-HIGH SPEED-NEGLIGENT LOOKOUT.
The steamer S., going down the Hudson river at the rate of 14 knots, on a night which was not intensely dark', and in a place where the channel was not over 700 or 800 feet wide. ran into a schooner beating down river. Held, that the B. was in fault for the collision for not seeing the schooner at least 500 feet away, and in time to avoid her, had the lookout been vigilant.
The schooner beating down, ,and having seen the steamer a mile distant, ra'Pidly overtaking her, and knowing that her own colored lights were not visible to the steamer. till a few moments before collision, held also in fault for not exhibiting to the steamer a flash·light, or any other signal of her presence. 8. SAME-REv. ST. U. S. § 4234. Bection 4284, Rev. St. U. B" applies to all sailing vessels.
SAME-BAlLING VESSEL-APPROACH OF STEAMER-FLASH·LIGHTS.
In Admiralty. Libel by the owner of the schooner L. Holbrook for damages ca.ttsed by collision with the stearp.-shipSaratoga. Wing, Slwudy Putnam, for libelant. Hyland Zabriskie, for claimant.
BROWN, J. On the night of August 15, 1888, as the libelant's schooner L. Holbrook, loaded with a cargo of brick, was beating down the Hudson river in a light wind, the tide being ebb, she was run into by the passenger steam-boat Saratoga, on her way f:r;om Troy to New York. The place of collision was about in mid-channel; nearly opposite Catskill Point, where the available channel-way was only some 700' or 800 feet wide. The wind, as admitted in the pleadings, was about S. S. E., and the schooner was on her starboard tack. She must have been heading, therefore, nearly directly across the river, or possibly one point down river; not enough to shutout her red light completely when on her course. She was struck on the port side, near the main rigging, and sank altnost immediately under the stem of the Saratoga. The claimants contend that the night was so dark that it wasimpossiblefor the pilot of the steamer to see the Holbrook, until they were close upon 50 feet; as her The steamer was going at the rate of about fourteen knots through the water; the schooner about one and one-half. The lights of the steamer were seen on board the schooner when she was over a mile distant. No flash-light was exhibited from the schooner. On the schoonel"s previous tack-her port tack--het bead was undoubtedly pointed so much down river that her green light was riot visible to the steamer behindjand the steamer, beingthen'bpon a bend in the river, showed her red lightouly. The
by Edward G. Benedict, Esq., of the New York bar.