182

(I'EDERAL,RElPORT.ER.

\'01.1)3;

this! 'eDuct,' in order,: to seeureunlformity in the pl"bceedinga of the circuit and distrietcourts, as well as in its own, will 'heueafter il\Siat upon a strict i,compliance with the and we do this in the present case the ,more readily ldr the reason that its rellordshows that no substantial error was 'committed by the court . below, and that, consequently, no injustice will in fact be doneto.'the parties thereby, while, much good may result therefrom" we hope. The judgment below isaffirined.

THE, DAGO. UNITED STATES'v. THE DAGO. '(Circuit Court of Appeals, 'lJ'oW:th Olrcmt. No.S7. A reMearlng will not be granted on a petition not complying with any of presorlbE\d '1;herefor of court" but containing merely an' argument at'! to the Insufficiency of the proof to sustain the
; , .. : : . ' 1.,-(,.

June 2, 1894.)

" .", , '

,

', "

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Appe.u from the District Court of the United States for the trict of'MaryJand. This was ·a . o'Ii behalf Of, tbe steamship Dago to rescind a I1eversing a decree of a district court dismissing a libel by the, against' the vesseV '61 Fed. 986. The libel, was filed a forfeiture, linder the act of FeMuary 15, 1893, for enteri,ng a port of the United States withouthavingobfuined a bill of health "fl'omthe nae consul, or other consular officer of theUn;ited States at the port of: departure, as required by seCtion 2 of t.ht;! act., "' ' The petition was as follows:
The petltl(ln (lfthe steamship Dago andWilllam Scroggie, her master, blyshows, UntpY(lur honors that by the 'third section of, the, Acts of Congress, of 1893 (chapter ll'l),-tbf :,tct construed in the opinloll,of tUs cause,-it Is provided: "None ,of thepenilltles herein 'Imposed shall,attach to any vessel or owner, or the 'Officer thereof, until a copy of this aet with the rules and regulations D;l>llde in ,pursuance thereof, has been posted Up in the office of theconsul or otl1.,er cOJ;lsular officerpf the States for !ten days in the port froI1l which' satd vegsel sailed; and thfi! certUicate of such consul or consular' officer over Iifs official signatUre, shall 'be cpmrletent evidence of such posting In any court of the United Sta:teg.', By tlle }{evlsed Statutes of the United States (sectjlonl137"), the definitions are given:' "Consul general, consul and SllaUbe d me4 to denpte full, principal and perma' nent as, and substitutes. * * * ConsuIarofflcers shall be deemed to include consuls general, consuls, commercial. ill@:ents, 'deputy conSUls, vice consuls, vice agents and consular 1\;J;ld none others." T'he posting of the act of ,February 15, l8ltS, ft.!:j,c!. Ule, regul,atloll!l of the treasury department, was made February ,2, 4" 1893, ','Geral,dijq,seley, ,A,ctlng, "U,. S., Consul fO,r, B, rI,,stol" (RecoM,':7). ",The signer, accordihg't(l ,his signature, ,w,as not a fun, principal, 'and' permanent consular officer;: 'as distinguished, from a subordinate and 'a which is defined to ,betJle meaning of the word "consul" by section 1674. ,¥en.ce, his 0,1' the was SUch a posting as, is contemplated by the actnow under construction. Hence, there Is no proof (>f the pOstlng;aIidnone of the 'Perialtleg of the a<;t can be,vislted on the Dag() und,er 8,: supra. The 'provision which aJlo\vs'a certllleate of the doing:

DUDEN

v.

MALOY.

183

of some act as evidence in a ,criminal proceeding may perhaps be of doubtful constitutional validity, as every man is entitled to be confronted with the witnesses who testify to the facts which are necessary to make out a cl'iminai charge against him, but certainly no latitudinarian construction can be permitted to sUPDlement or eke out the inadmissible proof offered, "Statutes Prescribing: Forms of Proct;eding 0'1' Modes of Proof. In regard to these the maxim holds good, 'Non observaw forma, infertur adnuliatio actus.' In these cases the proof or procedure required by law is rigidly exacted, the restriction rigidly insisted, without regard to the facts or the hardship of the case, and this with abundant reason, for it is the evident intention of these statutes to preseribe fixed forms or rules to guard against certain abuses likely to occur from the absence of an arbitrary and peremptory provision." Sedg-. St. Const. 275, 276. It is therefore submitted that there is no proof in the record of a posting of the law as is required by section 3 of the act, and that, therefore; the steamship cannot be visited with any of the penalties mentioned in the act. The appellee therefore respectfully moves the conrt to rescind the decree heretofore passed, and to affirm the decree of the district court, because of the insufficiency of the proof upon the point mentioned.

J.Wilson Leakin,for appellee. SIMONTON, Circuit Judge. This is a petition praying that this court will rescind the decree heretofore passed, and that it' will affirm the decree of the district court because of the itlsufficienc"V of the proof upon a point mentioned in the petition. The paper is wholly abnormal in its character. It is not a petition for rehearing. for it does not comply with any of the requisites prescribed by rule 29, 10. O. A. xxiii., 47 Fed. xiii. IUs an argument applicable to a motion made after a rehearing had been granted. 'rIle petition cannot be entertained. It is proper to state that, were this matter presented in proper form, we see no reason to change the conclusion which the court has reached in this case, and a rehearing would have been denied.

DUDEN

v. MALOY.

(Circuit Court of Appeals, Second Circuit. No. 102.
1.

September 26, 1894.)

PARTNERSHIP-AcCOUNTING-INTEREST CHARGED BY ONE PA.RT:KER 'GAINST ANOTHEIt- WAIYElt OF OBJECTION.

In an action by a partner who furnished the capital, against the other partner, for an accounting, the master found that not only did defendant not insist, on his objections to certain charges for interest made against him by plaintiff, when the items were brought to his notice, but that from time to time during the partnership, when such charges were made, he acquiesced in them. HeUl, that neither the finding of the master nor the charges would be disturbed, though such charg.es were large, and snch as would not have been allowed on proper objection by defendant.

2.

SAME-LoI.ND PURCHASED WITH PAItTNEItSHIP ASRETs-INTEItE8T OF PARTXERS.

In an action between partners for an accounting, it appeared that defendant was to furnish nothing but his time, and the contract provided that he was to have one-fourth of the profits of each fiscal year by itself, computed in the manner specified, guarantied to amount, for him. to $5,000; that, if they exceeded that sum, he should draw out only $6,000, and leave the balance in the business at 7 per cent. interest,. until the end of the partnership, when such balance and interest should be paid to him; and that either party could terminate the partnership by six months' writ·