for his wages as master:. The debts of the boat (exclusive of his claims) far exceed the fund fOf distribution. They were contracted in the building, equipping, and running of the boat, and are liens under the local law. For the most part they were incurred upon the orders of the exceptant as superintendent and master. The exceptant is an original stockholder of the Six-Mile Ferry Company, holding stock to the amount of $300 at the par value. But no part of his stock has been paid up. He testifies, indeed, that there was an understanding between himself and the company that he was to pay nothing, as he "was poor and had no money to pay for it." He adds, however, that it was his calculation to pay for his stock out of his share of the profits. Now, the capital stock of a corporation is a fund for the payment of its debts, (Sanger v. Upton, 91 U. S. 56,) and the corporation cannot grant to an original stockholder an immunity from liability to stock payments to the prejudice of the creditofS of the corporation. Upton v. Tribilcock, 91 U. S. 45. If, then, there was an agreement, such as alleged, that the exceptant was not to pay for his stock, it was fraudulent in law, and void as against the creditors whom the exceptant is now opposing; and if he is too poor to pay his share of the capital stock he should not be permitted to diminish the scanty fund now for distribution, fOf, so far as appears, the corporation has no other property.
SCHOONER N IANTIO.
(District Court, D. Connecticut.
WHARF-LIABILITY OF OWNER.
Where a vessel voluntarily takes her own berth partly at the wharf of the consignee and partly upon the unwharfed outland of a third person, and neither makes a request for a berth nor inquiry for information, and the consignee does not know of her presence at the wharf, the latter is not liable because information was not furnished the master of the changed condition of the bottom in that neighborhood since the vessel had last lain at that wharf.-[ED.
THE SCHOONER NIANTIC.
tie being being about 32 feet below the. south end of the wharf, and opposite the land of said Hinman. The Niantic was 100 feet long, and drew, when loaded, eight feet of water. The Florence was about 75 feet long and 27 feet broad. The Niantic had not previously lain so far below the end of the wharf by eight feet. Captain Beebe did not know that any dredging had taken place. He asked nobody where he should moor his vessel. No officer or agent of the defendant was present when he mooredt, and there is no evidence that any such officer or agent knew that he had moored, or was at the wharf. Apparently there is no wharf master or other person in charge of either of these wharves. It was low water at about 8 o'clock in the evening. The captain knew nothing of any injury to his vessel during low water, or during the night, but when he. came on deck the next morning, about 6 o'clock, he found that she was leaking, and soon after that she was strained and broken amidships. She filled with water· and sank. Afterwards the cargo was discharged, and she was raised and repaired with considerable expense and delay. At low water thete were two and one-half feet of water under her stern. From that point the water increased in: depth until it was six and one-half feet deep abreast of the main rigging. At the forward rigging there were four and one-half feet. There was a gradual slope from the main rigging to this point. It did not appear that the Niantic could not have lain safely at the upper wharf. If the captain had known of the uneven character of the bottom, there is no question that he could have found a safe place to lie in. The accident was caused by the fact that she was lying too far below the wharf, so that her stern was in shallow water, where there had been no dredging. When she grounded she lay unevenly, her stem and stern being upon elevations, and she became strained amidships. At low water the fact is apparent that the dredging had not been continued far enough to make a good berth at that point. The foregoing facts do not, in my opinion, make the defendant liable for the injury. The defendant is a riparian proprietor upon a navigable stream, and has a right by the
la.w of Connecticut to wharf out in front of its land to the channel, provided navigation is not impeded, (East Havenv. Hemingway, 7 Conn. 186; Nichols v. Lewis, 15 Conn. 137; Frink v. Lawrence, 20 Conn. 117; Simons v. French, 25 Conn. 346,) and to provide in front of its wharf a safe and convenient berth for vessels. It does not appear that it had not provided such a berth. If the injury had happened by rea· son of the unsafe condition of the land in front of the wharf, or of the unsafe condition of the access to such landingplace, which was known to the defendant and not to the plaintiffs, and was negligently suffered to exist, and of which no notice was given to the plaintiff, he using due care, the defendant would be liable. Carleton v. Steel Co. 99 Mass. 216. Barrett v. Clark, 56 Me. 498. If the Niantic had been assigned by the defendant the place which she took, and had received an injury from the inequalities of the bottom, the defendant would have been liable. If a wharf master of the defendant had knowingly permitted the Niantic to occupy a berth known to be unsafe, though partly on land of a third person-the captain being ignorant of its unsafe condition-the rule is apparently the same. It would have been the duty of the wharfinger to give information of iuequalities of the bottom which endangered the vessel. Sawyer v. Oakman, 7 Blatch£. 290. When the Niantic voluntarily takes her own berth, partly upon the unwharfed out-land of a third person, and neither makes request for a berth nor inquiry for information, and the defendant does not know of her presence at the wharf, there is no liability because information was not furnished of the changed condition of the bottom in that .neighborhood. Had the defendant, knowing the fact that the vessel was at the wharf, but not knowing where she was placed, been silent in regard to any change, a question would have arisen which is not in this case. The defendant being absent, and the libellant's captain making no attempt to gain information by sonndings or by inquiry of any person, the charge of negligence rests upon him rather than upon the wharfinger. The defendant, at the suggestion of the court, offered but
little evidence on Its part, and left the question, 80 far as the present trial is concerned, mainly one of law, upon the testimony of the libellants. The libel is dismissed, with costs.
THE J. S.
(District Oourt, N. D. New York.
1. CANAL-BoATS-LmEL FOR WAGES-REv. ACT OF 1793-AcT OF APRIL 18,1874.
March 5, 1881.)
Section 4251 of the Revised Statutes, (9 St. 38,) which provides that .. no canal-boat, without masts or steam-power, which is required to be registered, licensed, or enrolled and licensed, shall be subject to be libelled in any of the United States courts for the wages of any person who may be employed on board thereof, or in navigating the same," is not abrogated by the act of April 18, 1874, (18 St. 31,) which provides that the enrollment act of 1793 (1 St. 305) shall not be so construed as to extend the provisions of the latter act to such canalboats.-[En.
In Admiralty. WiUiams cf: Potter, for libellant. Davis cf: Clinton, for respondents. WALLACE, D. J. This libel has been filed upon the erroneous assumption that an exemption from seizure upon process in rem in the courts of the United States, conferred by the act of July 20, 1846, upon all canal-boats liable to such process, has been abrogated by the act of April 18, 1874, in construction of the enrollment act of 1793. In 1846, by the accepted construction of the enrollment act of 1793, all canal-boats which were employed on navigable waters were required to be enrolled and licensed. In 1845 (act of February 26) jurisdiction in admiralty was extended over vessels of 20 tons burden and upwards, enrolled and licensed for the coasting trade, employed in commerce upon the lakes and navigable waters connecting the lakes. Thus, in 1846, all canal-boats which, from the char-