anirriputationof negligence'. , Was the tug derelictin <JIiyof spepts,? She: might have started when the tide JVIl,tLat .a higher than it was when she began her movement up.the nvef, and thus, with deeper wmet, have insured the safety of her tow·. approached bridge she might .and rightly ought to h3ve kept· furthet away from it, for which there was ample room, and thus. have avoided the, risk of collision with',it, Qtwith the obsU'uctionunder the surface of the This was .the mistake, which haEl'resulted in the injury complained of, and I am satisfied it is chargeable solely,to the tug.. Was' thescbooner in fault? Her movements were under the control of the tug,: and that sbe endeavored to follow as neatly in the wake (jf she could is not. only probable, but. the hypothesis is sug.. the weight of the evidence. Upon the wholeca.se, I isfied:thatthedecision of the ,district court is right,and therefore the amount awarded by it, viz., $1,333.40, is decreed by this court to be paid by Thomas Gould, <Jlaiman.t,and William R.Morris his stipu. latal, to the libelant, with interest from 7, 1888, and with costs ,to be taxed.
(.DlBtrict Oourt, D. Mas,ach.usettB.
DmnmBAGB-LIA.BILlTY OJ' CONSIGNEB-BILL OJ' LADING-STIPUI...l.TIONB.
Where the bill of does not provide for lay-days, nor stipulate as to the time of unloading, the consIgnees are not liable for demurrage because a cargo was not unloaded until 17 days after arrival, where it appears that the delay was caused by the vessel waiting her turn at the consiA"llees' wharf according to the usage of the port, and that she was then unloaded with reasonable dispatob.
In Admiralty. Libel in personam for damages. E. P. ilirver, for libelant. C. T. HUBBell, Jr., for respondents.
NELSON, J. The respondents are lumber merchants, with a wharC in Boston, where it is customary for vessels, arriving with cargoes oflumber to them, to be unloaded in turn in the order of their arrival, according to the usage of the port. The schooner City of Ellsworth, of which the libelant was master, arrived in Boston, July 10, 1888, with a cargo of lumber on board, consigned to the respondents. The next morning the master reported to the consignees, and, as their wharf was then fully occupied in unloading other vessels, which had arrived before the City of Ellsworth, he was told he must wait his turn. On the 24th a part of the cargo, consisting of laths on deck, was unloaded, and the vessel again hauled into the stream. On the 29th the rest of the cargo was discharged. Nineteen days elapsed from the time the master r&o
'ttDtll she was The whole time; spent in' unloadingw8s two days. The,bill"of lading contained no provision upon thfl Bubjeetof demurrage. The claim of the libelant is that the discharge ought .to have been begun' immediately uponthearri\ral of the vessel, andl ' as 2 days were sufficientfol' discharging her; he is entitled to recover for 17 days' demurmge. This claim be allowed. Where no lay-days are providedin the bill of lading or charter-party, and there is no eXlJress stipulation a.sto the time of unloading, the consignee is notiiable for delays occurring without his fault. The only obligation resting on the consignee, under such circumstances, is to take the cargo in the usual and custontary way, with reasonable diligence j and the burden of proof, in order:to reco\'er for demurr8.Ke,is upon the Ship-owner to show that the consignee is chargeable with some negligence in unloading, or that he exceeded the customary period.' The Hyperion's Oargo,2'Lbw. 93, on appell.l; Holmes, 290; 8 Ben. 471, on appeal, 14 BIatchf. 522,; RJikfuv.A fF4rgo .jlrcmPipes, 40 Fed. Rep. ,605. There is nothing in the case to show that the respondents were guilty' of any negligence, or Axceeded the customary period in unloading. The only complaint here is that the vessel was required to wait her tum at the wharf. n is conceded that she was then discharged with all reasonable dispatch. As the vessel was discharged in the usual way, and within a period sanctioned by the usage 'of'the port, there is no ground for charging the respondents with demurrage for unreasonable detention. Libel dismissed, with ·costs.
'1JNl'Bfi RAm· t. BROWN.
(OfrcwU OOW'C, E. D. Mf.880'Wl'£, E. D. February 28, 1SllO.)
L Co11l'lTY WARRANTS-LIMITATION 0 ... ACTION-PLEADING STATUTB. Under Rev. St. Mo. 18l:l9, § 8195, providing that county warrants not presented within 51ears, or being presented, within that time, and protested for want of funds, an not presented again within 5 years after funds shall have been set apart for payment thereof, shall be barred, an information showing that warrants were dUly issued and presented within that time, and that they have notsinee.been paid, is good on demurrer, though more than 5 years have elapsed since their pre.. entation, as the appropriation of money for their payment, and non-presentation within 5 years thereafter, should be shown by plea. ..
&xB-MA'ND.uroS TO COMPEL PAYMENT.
On for a writ of mandamiuB to compel the payment of county 'Wal'rants, an information showing that the relator has valid warrants against the general funds of the county, and that the treasurer holds funds. which appear to be applicable to their payment, is suftlcient to require the treasurer to show cause Wh7 such funds should not be 80 applied. .
Equity. On application for writ of mandamm. The controversy in this case arises in the following manner: On the 15th of March, 1879, the county court of Knox county, Mo., caused two warrants to be drawn ·on the county treasurer, in favor of the relator, for the sum of $3,258.15 and $6,764.44, respectively. These warrants were issued in obedience to peremptory writs of mandamm, obtained in this court, commanding said c011nty court tocause such warrants to be drawn on the general funds of the county, and to be de-livered to the relator, in payment of judgments that he had theretofore obtained in this court on certain county bonds. Warrants were directed to be thus dl'awn on the county treasurer in lieu of a tax levy being ordered, for the reason that the bonds in question had been issued under a statute, which did not auihorize a special tax levy to pay the same in excess of 1-20 of 1 per cent. annually, as is more fully explained in the case of U. S. v.Countyof Olark,96U. S. 211, and in County Court v. U. S., 109 U. S. 229,3 Sup. Ct. Rep. 131. The information in this proceeding shows that the warrants so drawn were presented to the county treasurer for payment on the 18th day of March, 1879, and that payment was refused for want of funds with which to pay them, and that no part thereof has since been paid. On the 26th uayof December, 1889, there was paid to Joel Brown, the present treasurer of Knox county, the sum of $2,128 in satisfaction of a judgment which the county had theretofore obtained against the sureties on the bond of a former county clerk for a violation of his official duties. The damages assessed in such suit, and for which judgment was rendered, appear to have been the amount of certain fees earned by the county clerk, for which he had failed to account as required by law. After the payment of. such judgment, the relator herein presented the aforesaid warrants,· and demanded of the eQunty treasurer the sum of '2,128 in part satisfaction thereof. The demand was refused, whereupon the relator applied for and obtained a rule upon the county treasurer to show cause why he should not be v.41F.no.9-31