fq'tiarters and threw a chip overboard. He conclude(t that the' current passed under the bridge at that stage of ·the tide \vitb a velocity of '2to 3 knots an hour, and at an angle 0[·20 to 22; H to 2points of the compass. Reis an excellent witness, and worthy,of all credit. On the 'other hand, Mr. James Allen,assistant engineer in the coast survey', made a careful experiment with all appliances, at this bridge, at various . stages of the tide, including· three-quarters flood. He found little or no current at that stage ofthe flood-tide, and its direction'was,as fa-r-as he 'could observe, parallel to the pivot pier. He also, is a: man of character and ability. It is manifest that the current vanes attimes, depending on the Winds, and perhaps the' character, ofthe tides, n¢8.p-tides, ordinary tides, The bridge itself is in evidence, and has been exarrtioed. I' prefer,however, further evidence on tb6lle two 'points: What ie' the angle, if any, that is made by the current of AShley river with this bridge at three-quarters flood-tide? Allowing for this angle, what is the clear width open across the channel, estimating with referEl!1ce totheobliquity,ofthe bridge? Letthe:caae be referred to Mr· .Seabrook ,fQrthis purpose. :
. THE CASSIUS.
·1. iAnMIltALTY--A:l'pBAL-EmrnQT.. . .."" , , .. : , ' 'By frOID,;the a libelant opens ,thEl,w);lole c&se,alld be allowed to cIaim,tha bimeJlt of the decree beloW', and also try hill fortunes J.1l the circll,it court.-; FollQwing ·The Hesper, 18 Fed. Repl61l6.· . .', ;, 9. B.um-CoBTs. .' . : . .. ; . ' . ' ' . . .' .. . Rev. St. U. S. S. 008, providing that where "a libelant, upon b.fS own appeal, recovers less than three hunC1reddollars, exclusive pf costll, he shall not be allowed, but at the discre.tionQUheC9llrt may De adjudged to plly,.costll." relates to wi the costs dected by the
In Admiralty. Ap'peal from district court. Miller cfcJi!inruw, for libelant. HOT'M1' &: Lee; for claimant.
PARDEE, J. . The case sho.wsthat the libelant had '8 consignment cif 8,800 bundles of cotton ties ,by the steaml.shipCassius.Ator:about time of arrival, he sold the entire consignment to four different pallties, to-wit:. Te:>'-Richardson& May, 500 bundles; to Bryan &Mi1e&, 300 .bundles William Dillon, 4, 900 bundles; and to Messrs. H. & O. Newman, 2,900 bundles. These purchasers gave orders for these oottonties in 10tstodiffel'ent persons, some to be delivered· for shipment by·rail. road,others to various merchants in the city, and some to their respootive wa:rehouseit :Thepraeticeoheceiving and: delwenng,the dottontles was to send orders through draymen, to whom, on presentation ofth&mders,
were delivered the ties called for, which was done by the officers of the ship, under the inspection of the revenue officers; the drayman giving a receipt to the ship for each lot received. Mr. William Dillon, on counting his tickets received from the drayman, but not counting the ties, (which was practically impossible by reason of the deliveries as aforesaid to various parties,) found himself 100 short. In one dray-load which was counted he found a hundles over. Crediting the 3 bundles, he made a shortage of 97 bundles. It is for tbis shortage that the libel is brought. Under the conc.eded facts in theca.se, the issue is brought down to the question of one certain delivery to prayman CloutDlan of 100 bundles. The claimant produces what.purPprts to be the receipt of Cloutman for 225 bundles,-one lot of 125; one lot of 100. The drayman swears that he received the lot of 125, but did notrecE'ive the lot of 100. The mate of the ship swears positively that he delivered. both lots to the drayman. The United States. inspectors testify positively that the entire consignment of8,800bUndles to lihelal'ltCharnock was delivered to the various draymen who came and presented orders, that they verified the count, and that the full 8,800 bundles were delivered. The weight of theevidenceseeems to bein favor of the claimant, and it seems to be clear that the libelant has failed to prove his case. The case shows, further, that on board the ship there were consignments of cotton ties amounting in all to 11,000 bundles; that all of these ties were delivered, and the count verified by the customs officers; and that after such delivery there were 83 bundles surplus, which were put in the government warehouse, and on this extra lot the government olaimed duties. It seems that before the libel the agent of the ship tendered to libelant these 83bundles. The judgment of the districfcourt was that the libelant should recover from clainlant these 83 bundles, subject to government duties, but not-warehouse charges, arid thllt the costs of the district court should be divided between the libelant and the claimant. The appealed from that judgment, and thereby opened the whole case. "Where libelants appealed, the appeal opened the whole case. They cannot be allowed to claim the benefit of the. decree below. and, standing secure on that, try their fortunes in this court." Saratoga v. 438 Bales of Cotton, 1 Woods,. 75. See The Hegper, 18 Fed. Rep. 696. There seems to be no good reason why the claimants should be compelled to pay costs when the court finds, as is done in this case, that.the ship made full delivery. It may be that section 968, Rev. St., providingthatwhere "a libelantj upon his own appeal, recovers less than three'hundred dollars. :exclusive of costs, he shall not be allowed, but at the discretion of the court may be adjudged to pay, costs," relates toaJI the 'tlOsts affected by :the appeal. For. these reasons it is ordered, adjudged, and decreed that the libelant, Henry Charnock, be recognized and declared as the owner of 83 bundles of cotton ties ex steam-ship Cassius, now iIi bonded warehouse; that said libelant take nothing further by said libel; and that he do pay the costs of the circuit and district courts tobe taxed, and for which execution may issue after five days from signing this decree.
UHLMANN ", AQNHOLT
UHLMANN etal. '11. ARNHOLT &; SCHAEFFER BREWING CO. SAMliI V. BETZ et al, SAME v. GERMANIA BREWING CO.l
(OiT/mit Oourt, .E. D. Pennsylvania. January 29, 1890.) 1.
The criterion of immateriality.of interrogatories in a bill in equity is not an aftlrmative answer will prove the bill, but whether it will tend to prove the bill.
BAME-ANSWERS-WAIVER OF OATH-EvIDENCE.
A defendant, in a bill for discovery and relief, whose oath has been waived, is not thereby excused from answering, and the only effect of dispensing with. the oath Is to deprive him of the benefit of his own declarations. Admissions contained in such answers are evidence al\'ainst him.
In Equity. Sur exceptions to answers. Bills in equity by Simon Uhlmann and Frederick Uhlmann against the Germania Brewing Company, the Arnholt & Schaeffer Brewing Company, John F .· Betz, and J9hn F. Betz, Jr., for discovery and relief. The complainants dispensed with the requirement of an oath to respondents' answers. .Respondents re1used to answer, alleging the immateriality of the interrogatories, .and the fact that complainant dispensed with the oath to the answer. Complainants excepted. Wetmore &- Je'll,ner, for compluinants. Witter &- Kenyon, for respondents. BUTLEl't, J. The respondents have ignored the interrogatories propounded, and put their .suppos'ed right to do so on the ground-Jilirst, that the interrogatories are immaterial; and, seccmd, that the waiver of an oath dispenses with an answer. As respects the first proposition,we disagree with the respondents. The criterion of immateriality is not whether affirmative answers will prove the bill, but whether thllY will tend to prove it. That they will so tend we cannot doubt. This applies to each of the interrogatories. Nothing further need be said on this subject. The second position-that the waiver of an oath dispenses with an answer-is, we believe, equally untenable. Whether the oath is dispensed with by law, as in the case of corporations, or by the complain,.. ant, is immaterial. The two classes of answers belong to the same category in this respect, and no distinction nee£). be Ulade in considering the point raised. The real question is, can respondents in such cases be required make discovery? The proposition that they cannot, rests upon an allegation that the answers will not be evidence. This allegation is, clearly, unfounded, and the proposition faIls with it. The answers. will purpose. be evidence, if the complainants choose to use them for Any admissions contained therein will be available. to support the hilI. The only eEect of dispensing with the oath is to deprivll respondents .of the benefit of their own declarations. They are not relieved from making discovery. The citations appealed to (U. S. v. Mcl-aughlin, 24 Fed.
'Reported by C. Berkeley Taylor, Esq., of the Philadelphia bar.