DBBUIBB tI. BAVEBMJilYElU! & ELDEBSUGAB REFINING CO.
BOND, J. ·'fbis cause coming on to be heard on the pleadings and proofs on the plea to the jurisdiction of the court, it is ordered, adjudged, and decreed that the decree of the district court be affirmed, and the libel herein dismissed, on the ground that the district court had, and thil1 (,.Qurt had, no jurisdiction of this cause, because, at the time of the service of warrant of arrest, the vessel was without the limits of the district of South Carolina, and without the territorial jurisdiction of this court. It is further ordered and decreed that respondent'sstipulation for value be canceled, and delivered up to respondent'. proctors.
CHuRNSIDE tI. (.DfItrIct
May 13, 1890.,
. . .
cOurt, 8.:D. New Yorl;.
8JIJnnI..-J'JQlIGD'l'-8UOBTAGB Dr DUdT1IBY-EVIDBNCB.
TwO vessels delivered sugar In bags to the respondent, and tbereafter, on IUt' broughti"to recover their freight, the defense of short delivery was Interposed. .T1le. vesselll proved that theirhatohes were kept battened down until the ·wu takeuoharge of by the res.,ondent, and that all the sugar received was deliv:ered. The evidence showed rough usage of the bags by the respondent in unloading, whereby some bags and their marks were destroyed. No direct proof was given by respondent of the number of bags actuauy received. . HeZd that, though the ship was bound to aooount for the number ofbaga shipped, under luch circiililatances, the burden of proving shortage being on the respondent, the mere absenoe ofa few marks was notsufDclent proof of shortage, and that the alleged offael faUe'd, ve_is were entitled to recoverthelrfreight.
In AdD;l.iralty. Action for ·freight, with offset of shortage of cargo.
Con"""8 Kirlin, for libelants. John E. ParBfmB, (H. B. CloaB<m, of counsel,) for respondent.
BBOwN,J. The Hampshire and the Ixia were both chartered by the respondent for the transportation of sugar. The shortage in weight of the sugar delivered is not 1 per cent. upon the amount stated in the bills of lading. This is so sIPall that, considering the liability of sugar to vary from inherent quality, it affords no presumption of neglect of duty on the part of either ship in transportation. No allowance can be made, therefore, .Plerely for this difference in weight. But the ship is accountsblefor the nqmber of bags that she received on board. There ought to be no shortage on these. There is no exceptionin the bill of lading that can shortage of the 15 bags in one case, and. of 11 bags in the cover the other.. The ship must account for the bags she does not deliver. There is. evidence in behalfof each ship that her hatches were kept battened ,q0W'Il· until the unlading was takeo ·charge of by the. respondent, and that all the sugar received was delivered. The respondent attended
'Reported by Edward G. Benedict, Esq., otthe New York bar.
FEDERAL REPORTER ,
to the discharge. The ship kept no tally. Under such circnmstances, the, burden of proving a shortage on, the number of bags received is on the respondent. There is no direct evidence of the number actually re.. ceived, and hence no strict proof ofshortage. No tally is proved. The respond,ent relies upon the libelants'answers to the third interrogatory. lfthe answer to this interrogatory admitted a short delivery of bags, the ship would, doubtless, be required, to account for the shortage, or pay fol' it. I do not think such is the eflect of the answer, and of the testimony.' The thi,rd interrogatory ,is: Il(a) How many bags containing sugar were delivered ex Hampshire to the respondents? A?lswer. 25,711 bags." This is 211 more than are called for by the bills of lading. The Ixia answered the same interrogatory, "19,085 bags," which is an excess of 76. The next interrogatory is: "(b) How many bags of sugar marked as deserii:>edin thesa!Q. bill of lading were delivered, ex Hampshire? An8Wer. 25,474 bags." 'The IxilL answers, "18,982." The third interrogatory is: "Question. How many empty bags marked as described in the bill ofladingwere delivered ?', The Hampshire answers, "2." The Ixia answers, "None.," The,libelants' testimony shows, however, that the bags, in course of the discharge, were roughly handled by the respondent's employes who unloaded the'cargoithat this tough handling was continued agl:J,inst the protest of tn,aship's officersjthat many of the bags were thereby torn, and some destroyed, and their contents;spille:di that an unusual quantity of sweepings remained after the bags were 9ischarged i and that those sweepings, together With old torn bags,were placed in other new bags or sacks. The..ship's own coopers were employed in repairing :new sacks, bag for bag, the injured bags and in sewing old bags upon so that the new bag should be counted in place of the old one. This is the practice on discharging. There was some dissatisfaction on the stevedore's part because the ship's coopers were thus employed., He complained that they did not work fast enough; and it was very likely, under such circumstances, that some of the old bags and marks were not kept separate and turned over to the coopers, or tacked to the new bags, as should hl:J,ve been done. I hate no doubt, from the testill1tlny, that a considerable number of the bags warLdestroyed, and their marks lost or obliterated, through the acts of the respondent's employes. The respondent cannot require the vessel to pay for bags whose marks, in consequence of such handling, were not produced. The testimony fully explains any apparent qiscrepancies in the anSwers to this interrogatory. The utmost that is admitted is that the number of bags" marked as described in the bills of lading" were a few less, while the number of bags delivered was more. The absence of the proper mark is sufficiently accounted for by the rough usage of the respondent in unloading, whereby bags and marks were destroyed together. In the absence, therefore, of any strict proof that the actual number of bags received was less than the amount shipped, the alleged offset failsj,and the libelil.nts in each case are entitled to a decree, with costs. ,
MELOY V. ORTON.
MELOY' tI. ORTON.
(Of,rcuft Ocrwrl, W. D. WfBcDnsin. May 30, 1800.)
ATTACHMENT-CO:NTINUATION OF LIEN P,ENDIKG ApPEAL.
In Wisconsin, ap appeal by plaintiff from a judlUDent for defendant on the merits, in a case in which an attachment has been issued on land, does not preserve the attachment lien pending the appeal,unless immediate notice of appeal is giv,en, a proper bone) tendc:red, and the lien continued by special order of the court.. Rev. St. Wis. § 2748, as amended by Laws Wis. 1881, c. 157, providing that, 'when defendant in the writ of attachment shall recover judgment in cases where real estate has been attached, the clerk shall certify the judgment to the register of deeds, who "shall enter such'certificate upon the records of his office in satisfaction of the lien of such attachment," is inconsistent .with the continuance of the lien proprl.a The lien of the attachment is discharged by the 1'l'lndition of a judgment against plaint-i1f, and cannot be continued by the failure of the clerk to perform the merely ministerial duty of certifying the j uilgment to the register of deeds.
SAME-DISCHARGE OF LIEN.
Rev. St. Wis. § 8061" providinlj\' that, on the giving of an undertaking on appeal from an Qrder "vacat\ng or m9dlfying" an attachment, the court shall order the a,ttachment to he continued, does not apply where the judgment is against plaintiff on the merits.
, In Equity. Motion for preliminary injunction. Wm. E. Carter, for complainant. Orton k OBborne. for defendant.
BUNN, J. This is a motion by the complainant, based upon tbebill of complaint, for a temporary injunction to restrain the defendant from selling or incumbering,during the pendency of the suit, a certain tract' of land which forms ,the subject of the suit, which is brought to title; Rnd the case turns upon the question of the continuance of an at-: tachment lien upon th El property in a suit in the state court during the pendency of an appeal froin the circuit to the supreme court, where' a judgment on the merits in the case where the attachment was issued went against the plaintiff in the trial court, and no 8ttperBedeaB or other bond ,was given or order made to continue the lien of the attachment during the pendency of such appeal. In Wisconsin, all actions are' commenced by the issue of a summons, and in cases upon contract, when (among other specified cases) the defendant is a non-resident of the state, an attachment may issue as a collateral proceeding, to attach and hold the defendant's property found in the state, to answer any judgment that may be obtained against him in the action. On the 22d of June, 1885, Elizabeth Lamar made an affidavit for an attachment in an action against one Frank Scales, stating that he was indebted to her in the sum 0[$6,000 upon contract, express or implied, and that he was a non-resident of the state of Wisconsin. This affidavit was made before a notary public in Chicago, Ill., and upon it a suit was commenced and an attachment was issued in LaFayette county, Wis., two days later, on June 26,1885, and a certain 60 acres ofland belonging to the defendant Scales was seized. Afterwurds, on August 30, 1886, the action wall tried by the court withv.42F.no.l0-33