FEDERAL REPORTER, vol.
cannot well be doubted; the conduct of the officers shows it. They resorted immediately to extreme measures, such as are only taken to escape threatened danger. It is evident they were seriously alarmed. The steamer's claim to damages cannot, therefore, be sustained, and a decree must be entered accordingly.
THE JERSEY CITY. 1 CoRNELL STEAM-BoAT
tI. THE JERSEY CITY.
(Dt8trLct Oourt, E. D. New York.
CoLLISION-FERRY-BOAT AND TOW-CROSSING COURSES.
A tug, with several boats in tow along-side, came down the North river, rounded to,and lay about 850 feet from the New York piers, holding herself against the ebbtide, and waiting for the steam-boat City of N., which was coming up astern, to pass inside of her; While so waiting, a ferry-boat, bound from Jersey City to New York, attempted to pass between the tow and the City of N., and her paddle-wheel struok the outside boat on the starboard side of the tug,causing it to sink. Held, that the ferry-boat was liable for the damage.
In Admiralty. Suit against the ferry-boat Jersey City for damage by collision. See 43 Fed. Rep. 166. R. D. Benedict, for libelant. Robinson, Bright, Biddle Ward, for claimants.
BENEDICT, J. Upon the merits of this case, it need only be said that the libeljtnt is entitled to a decree, unless the defense set up by the ferryboat is maintained. That defense is that there was room enough for the ferry-boat to pass between the tow and the City of Norwich in safety, on her way to her slip, but that she was prevented from passing in safety by the action of the tug in dropping down the stream, and thereby so narrowing the space between the City of Norwich and the tow as to make it impossible for the ferry-boat to pass without striking the stern of the tow as she qid. This defense, however, is not supported by the evidence. The weight ,of the evidence is the other way. There must therefore be a decree for the libelant, with an order of reference, to ascertain the damages.
by Edward G. Benedlot, Esq., of the New York bar.
BAKER et aZ. v. HOWELL et
(Cf,rcuit Court, D. Nebraska.
December 4, 1890.)
COlTRTs-J"URISDICTJONAL AMOUNT-PROTEST FEES.
Protest fees are taxable costs within Rev. St. U. S. § 983, providing that "lawful fees for exemplifications and copies of papers necessarily obtained for use on trials" shall be taxed as costs; and though Compo St. Neb. c. 41, § 6, provides that the holder of a note may bring" an action for principal, damages, and interest, and charges of protest, .. yet such fees for protest cannot be considered as part of the "matter in dispute"withinActCong. March 3, 1887, S1, (24 St. 552,) as corrected by Act Cong. Aug. 13,1888, (25 St. 434,) restricting the jurisdiction of the United States circuit court to suits "where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of 12,000."
Gregory, Day & Gregory, for plaintiff. E. M. Bartlett, for defendant. Before CALDWELL and DUNDY, JJ.
CALDWELL, J. The act of congress of March 3, 1887, § 1, (24 St. 552,) a8 corrected by Act Aug. 13, 1888, (25 St. 434,) restricts the jurisdictionof this court, in respect to the amount necessary to give jurisdiction, to suits" where the matter in dispute exceeds, exclusive of interest 'costs, the sum or value of two thousand dollars." This suit is founded on a promissory note for the sum of $2,000, and is brought against the makers and indorsers. The petition contains an allegation "that the notary fees for the due presentation and protest of said note were and are of the full sum of three and 50-100 dollars, which the plaintiffs were required to pay, and did pay;" and this is set up and relied on as an additional substantive indebtedness to make the matter Ll dispute exceed $2,000. The question for decision is, are the fees to be treated as "costs," within the meaning of that word as used in the act of congress, or as an independent substantive debt, whicr may be used to increase the sum of "the matter in dispute." The stat ute of this state provides that the holder of any note may "an action for principal, damages, and interest, and charges of protest against the drawers, makers, and indorsE'rs" of the same. Camp. St. Neb. c. 41, § 6. The act regulating and establishing the fees of public officers in this state fixes the fees of a notary for each protest, recording the same, and giving notice of protest, (Id. c. 28, § 19,)and makes his certificate, that he demanded payment and gave notice of non-payment, presumptive evidence of these facts, (1<1. c. 61, § 6.) The sum paid by the plaintiffs to the notary was for an official service performed by a public officer for a fee fixed by statute. This official act was a necessary step to be taken by the plaintiffs to fix the liability of the indorsers, and to perpetuate and procure record evidence of their cause of action against them. It is true thattbe demand of payment may be made, and notice of non-payment given, by any person competent to testify as a witness, but in such a case there is always the danger that the witness may v,44F.no.2-8