.. ,JuUm H.:He,Ywafdl'for,plaintiff. :i : ' 'H. A.,:fJeiSausw,fe,Asst.: U. S'.Dist. Atty.
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" is ,a of the 'courts of the United States ,in this. district·. He brings his action for clocket fees for the period beginning 12th March, 1886; and ending 23d June, 1888; in all, $517. Upon his account it appears that between 12th March, 1886, and 1st/August, 1886, he charged 19 docket fees, to"wit IS,at $3,$48; and 3at $1,83;: in all, $51. He presented in his accounts forwarded to the docket fees in due form. The department claim. for these departmentdisaUowedal.l docket fees anterior to July 1, 1886, and lowed all docket fees between July 1, 1886, and August 4. 1886. The amount thus disallowed is $39. The other items of docket fees were never inoluded in his accounts, and .the claim has never been made upon or disallowed by the department, and has .never been, until now, pre. sented to the court. , Inthe case of Calvert v. U. S., ante" '7,62, (decided this day,) it has been held that the p1'ov,ision inserted in the deficiency act of AQgust 4, 1886, depriving,cQmmissioner,s of docket fees, was not a condition annexed to the special 'provision then made. and was not confined to that aot; but that it was ,permanent in its character, and operated as.an amendment to section 847, Rev. St. U. S. If this is so, the section remained the law until thus,amended, and commissioners are entitled to the fees provided in it. amendment was passed, this plaintiff ,had performed certain servict:lsanterior to its passage, payment of which the section provides for, ltud has earned his money. The government then owed it to him. Let him have a decree for $39. The rest of the account comas within the ruling in Calvert's Ca8e, and must be disallowed. Since AQgust 4, 1886, commissioners have lost the right to docket fees. It is necessary to decide whether a suit can be maintained in this court on a claim not passed Qpon by the treasQry department.
(Circuli OOg,." E. :D. New York. February 12, 1889.)
PLEADmG-AJ(1l:NDMENT OF ANSWER-NEW DEFENSE-MATERIALITY.
In an action on a policy of marine insurance, on application to amend the answer by thll' insertion of a clause in the application for insurance warranting the vesselto be commanded by a certified captain, held, that if the clause to the defendant to accept the risk, defendant was at liberty to avaIl hImself. of sU.ch defense under an amendment made,since the tria!.. ·.U the statement was one not material to the risk, defendant should not now be allowed to set it up as a bar in a case where his amendment as to representation g-ave him opportunity to prove in defense whatever fact he selected for a defense when he made his contract. Hence the motion was denied.
lReported by Edward G. Benedict, Esq., of the New York bar.
, 'C.UUUNQT01l1 fl. POTTER,
At Law.' , On motion,for reargumentofamotion to,amend the answer by setting up as a defense a cla.usein ,the application for insurance that tbe vessel on which the policy sued on was issued was to be commanded, by a eertilled captain. Wing, Shoudy &: Putnam, for plaintiff. Lester W. Olark, for defendant.
LACOMBE, J. 1. Upon the trial it was held that the clause in the applicl;i.tion, fQr, insurance on ,the Altavelia could not be considered a warranty because it was not carried into the' policy. The defendant's contention then was (and still is) that, the policy being an open one, in fact completed as to the Altavelia until the application for that partieu1fl.r vessel was put in, the application is to be considered a part of th$ policy or Contract of obligation between the parties. If the contention of 'the defendant is sound, it will a\"ail him under hig original answer, Whi'cih contains a,denial that the plaintiff has duly fulfilled all the conditions Of the policy. , 2. If the clause warranting the Altavelia to commanded by a eer':' tified captain, which is in theapplicatibn forinsurance on that vessel, operated as an inducement to accept the risk, tM fact warriuited being deeihedby the insurer Dlatenal to the risk, the defendant should in all fairness be allowed to avail of such a defense. But ,he is at liberty to,do so now" nnder the amendment made since the trial. 'S. If the statement as to the certificate of the captain was one not material to theris1l;:, and of no effect as an inducement to the insurer to accept the plaintiff'sofIer,-in other words, if it is an after-thought,.:...then the defendant should' not now be allowed to set it up as a flat bar in a case where as to representation gives him every opportunity to prove in' defense wbatevet fact he selected for a defense when he made hi,s contract. ' ,
CARRINGTON ". POTTER
(Gifocuit Court. E. D. MiI,ouri. E. D. February 18, 1889.)
. Acertjfi\ld copy of a deed. though it the grantor's 'Signature, when theattestatioD clause recites that the deed was executed "UDder the hand aDd sel11" of the grantor. Following McOo1l v. (JaB:_idll,9 s. W. .', .. , .. ,J1pBLlC laNDs.... BY DlIiED Ol1'COIDlISSlONlj:R., Under gess. 'Mo. 1868, p. 67, declanng that deeds for county swamp , '.landi, theretofore executed by co.mmissioners, shoUld'De'" deemed and held to