for. then, it is safe to'say, the tow 'of ·the Morgan would have passed them without hurt· . Upon the whole case, I fl,:p1 of opinion that the libel should b,e dismissed, with costs. And now, February 7, 1881, upon consideration, it is ordered,adjudged, and decreed that the libel in this case be dismissed,. that the libellants pay the costs.
THE SOHOONER EDWIN POST.
(District Court, D. ])elawa1'e. March I, 1881.)
Amendments are allowable in admiralty, in the discretion of the court, at any time until the termination of the cause.
2. MARINER....:.WAGEs-REv. ST. H'4546, 4547.
The proceedings by a mariner to recover his wages, under the provisions of sections 4546 and 4547, U. S. Rev. St., are cumulative in the:r character, and do not interfere with his rights to recover his wages by a proceeding according to the ancient course of admiralty, as the same existed before the passage of the act of 1790, upon which the a:Jove-named sections are founded·
.3.. SAME-SAMIll-SA,ME. At most, the effect of the sections above referred to is to restraltl. a proceeding in rem against the vessel before the expiration of 10 days ' after the wages are due.
In Admiralty. Libel for Wages. Charles B. Lore. for libellants. . L. C. and E. G. Bradford, Jr., for respondent. . BRADFORD, D. J. The in this. cause filed their libel against said vessel, etc., fpr wages, alleging their shipm,ent for six months by the master on April 26, 1880, at the wag,es of $18 a month, and.theex;pirationof their term of service und!3l" said contract upon October 26, 1880, and the failure of the master to pay wages which they had earned and whic4 w.ere due upon tqe expiration of said contract. October 26.1!:l80, and that they had left said on
Janus,l'y2'3,1881 after she, was put into,wintear qtiarters/ iin orde:lo obtain thei.r wages. ,'The libel in filed JannaTy 25" t881,;naarlythree tnonth8'ia;fWi', the said wages were alleged to be earned. Exceptiohs by the respondent, mastetO'f"slUd 'schooner, alleging: tially (1) that the libel is irregnlar,becanse it ap!:' pear that the conrt bas of the CaUflEJ in First, that it does appeaithat ten days had elap's'edb'etween the time the' seamen were' entitled' to receive th'eii' wages and the time of filing thrii/libel; second, because preliminary steps pointed out by sections 4546, 4547', u. Rev. St., were not taken heforesnit' was court by the attachment of ve'ssel upon .I Whatever defect 'np()n, the face ()f libel which arose from not <Usclosing. the peri()d tween the earning of the wages tLnd the filing of h!l's been corrected by thefiling:Qf -the omission, which the court always' allo;ws with in'admiralty So that the exercising in this suit, because it that 10 days had elapsed between the earIlingof said and the time of filing the -libel, thns disposed of by amendment. It remains only·to consider· the. the respondent, going to the full length ings to be taken nnder said sections 4546,!454: 7,U.' St., as s, prerequisite hefore this oonrt takes jurisdictioo'of the cansa; We cannot, assent to the oorrec:tri:esl? efdili.is' proposition. The practice in this districtj;and we generally, is against decisions; lite: opposed: to': the speculationBof eminent law-writers,arB 'a;gainat it:"!h'i'a question has b'eenetamined';at -aofuelength by Mr. SiWagne, an eminent that the acts'of congress do n6t, lUaU :cases, lmptiStl:'B'duty on the sailor of proceeding to recover his wages in the ml:!'nner pointed ont in the sections of the Revised Statutes. In fact, he thinks that the statutes did not alter or restrain the
sailor in the pursuit of any remedy he had before the statutes passed, except as to proceedings in rem, leaving the sailor to pursue, at any time after his wages were due, the remedies of suit in personam and against the freight. He looks on the statutes as a restriction on the right of the sailor to pursue the remedy of attachment against the ship before the 10 et.a:ys provided by act of congress expire, except in the cases excepted in the Revised Statutes, viz., a vessel leaving port before 10 days after her cargo is delivered, and a vessel about going to sea. In all cases of proceedings in rem, he thinks that the operation of the Revised Statutes delays the filing of the libel until the expiration of the 10 days; but he is without doubt that when that time has expired, he, the sailor, can proceed in rem as properly as in the cases excepted in the Revised Statutes. Upon this point (the one which concerns us in deciding this case) his opinion is clear and conclusive. The dther cases cited-by Judge Acheson, of the western district of Pennsylvania, Murray v. Ferry-boat Nimick, 2 Fed. Rep. 86; another by Judge Dyer, The Waverly, 7 Biss. 465; and another by Judge Longyear, The M. W. Wright, 1 Brown's Adm. 290-make no fine distinctions in the matter, but take the ground broadly, that the whole proceedings, as laid down in the Revised Statutes, are merely cumulative, and can be substituted for the old admiralty remedies before the statutes of 1790, or not, as the libellant chooses. We feel disposed to follow these decisions, especially as the uniform practice, as I am informed, has been to proceed in either way the sailor might deem most available to procure the payment of his wages. As the libel has been amended so as to show the lapse of 10 days after the earning of wages before suit brought, I shall order t4e case to be referred to United States Commissioner S. Rodmond Smith, to take testimony as to the amount of wages due, and report the same to this court.
LATROBE v. HULBERT, Executor, etc.(Oircuit OOW/'t, S. D. Ohw. - - , 1881.) 1. lNTERJ!JST-Omo-LEGAL RATE-1863 TO 1869-PAYMENTS IN ExCEBB. In Ohio, from April, 1863, to October 1, 1869,6 per cent. was the highest rate of interest that could legally be contracted for, and all payments in excess of that rate were to Le deemed as payments upon the principal. and judgment could be rendered only for the balance. 2. USURy-EsTOPPEL TO PLEAD-RELEASE OF MORTGAGE SECURITY. A loan, secured by mortgage upon the borrower's propt:rty, was made in 1863. An usurious rate of interest was contracted for and paid until 1875. At that time, in order to pcrfe<:.t a sale of a portion of the property mortgaged, the mortgagee released his mortgage upon such portion, in consideration of the payment of all interest then due and half of the principal debt. There was no evidence that the arrangement was made in settlement of the previous usury, and the property remaining was more than sufficient to satisfy the balance of the debt. Held, that the mortgagor was not estopped to set up the usury.
B. 8.um-LEx CoNTRACTUS. Whether a contract is usurious, fs to be force at the time of the making of such contract.
by the law in
'" USU1UOUS CoNTRACT-SUBSEQUENT LAw. At the time of the execution of the contract, the rate of interest stipulated for therein-8 per cent.-was usurious. Subsequently a Jaw was passed which permitted persons to stipulate for that rate. HIld, that payments of interest thereafter, made in fulfilment of such previous contract, were usu.tious.
G. USURy-FICTITIOUS PRINCIPAL. Where the interest paid, in excess of the legal rate upon the amount sctually due at the time of payment, it is UilUl'ious.
Lincoln, Stephens cl Slattery, for complainant. Durbin Ward and Jordan It Bettman, for respondent. SWING, D. J. From the pleadings and evidence in this case it appears that on the tenth day of April, 1863, John W. Coleman borrowed of the complainant, John H. B. Lakobe, the sum of $25,000 for So period of five years, at8 per'
-Reported by :HOBBrs. Florien Giauque and J. O. Harper, of the Cincinnati bar.