This 'involves the danger of the service to the libellant, and the risk of declining it, to the respondent,-as the dan'at the time. In '1'heSt'etson, above ger and cited, the court awarded 5 per cent. ot the property rescued. Here a similar percentage would amount to $1,300. In view of the limited extent of the danger encountered by the libellant, and the prospect of succor from o.ther sources by the respondent, I believe $1,300 to be a larger sum than the former would have demanded, or the.latter have consented to pay. I am not unmindful of what Captains Randolph and Chester say of the situation; but their statements, when compared with those of other witnesses, seem somewhat exaggerated. $1,050 (one After careful examination of the case, I thousand and fifty dollars) a just compensation, a.nd this sum will be aW&l'ded, with costs.
(Diaerict Court, E.
NelD York. April 20, 1881.)
Where a cargo 'of mineral phosphate was gathered from the of Fernando de Noronha, and brought to New York in the brig D. t and an action'wAs commenced against vessel and cargo, the libel set· ting forth libellant's ownership of cargo and wrongful taking thereof from the island by the master of this vessel in violation of rights said to be exclusively given to the libellant by the Brazilian government to gather this phosphate, and the cargo had been sold, and the proceeds, by cons of libellant, paid into court to abide the event of l).t this action: It seems that the admiralty has jurisdiction to determine the own. ership of the cargo, It seems, also, that the vessel would not be HallIe , for ,the wrongful act of the master in taking the cargo, in the absence of any authority or ratification of his acts by his owners. Proceedings against vessel and against her cargo, for callses of action growing out of the same transaction, may be joined.
Dan. Marl:in, for libellant. Goodrich, Deady cf: Platt, for claimants.
, THE DAUN'rLESS.
BENEDICT, D. J. I think that a better justicecail be administered in ,this case .by reserving the principal points raised by the exceptions taken to the libel for determination at the final hearing, when the evidence shall be before the' court. At the same time I have no hesitation in saying that I ani not able to see how acts of the master of a vessel, such as described in the libel, can create alien upon the vessel, in the absence of express authority from the owner;; of the vessel, or a subsequent ratification by them, and no such anthority or ratification is averred in the libel. In regard to the j urisdiction of the court to entertain an action to obtain posses· sion of the cargo, while there is room for doubt, my present opinion is that it can be upheld. If the case were one of property stolen on shore and sul:>sequently shipped on board a vessel, and the ql1estion were as to the right of the rightful owner of the property to reclaim it from the vessel by means of a possessory action in the admiralty, a different case would be presented. Here, the character and situation of the property-being mineral phos. phates gathered from an island in the sea-was such that its shipment on board the vessel, and its subsequent transportation therein to the port of New York, constituted a tial and necessary part of the transaction. The intent to ship the property formed part of the intent with which it was gathered on the shore. It was there gathered for the sale purpose of being at once shipped. The gathering on the shore and lading on board of the ship were a single and continuous transaction, and the ultimate object sought to be attained by gathering and shipping the property was its transportation by sea to the port of New York. The con· summation of the wrong, if wrong was committed, was upon the sea. These circumstances would seem to characterize the transaction as a maritime tort, and entitle the owner of the property to reclaim it from the vessel by a possessory action in the admiralty. In Steele v. Tluttch an action in the admiralty for the abo duction of a minor and taking him to sea was upheld by Judge Ware. Ware's Rep. 85. See, also, The Bi,Td of [>ar·
adise, 5 Wall. 546.· Furthermore, the cargo concerning the
ownership of which the dispute exists has been converted into money, and the money has been paid into the registry by consent of the claimant, and the court, having the money, must of necessity have jurisdiction to determine to whom it belongs. The determination as to the person entitled to take the money from the registry, will, of necessity, involve the question of the claimant's right to the property which the money represents; and this is the very question sought to be raised by the libel. I see no objection to the joinder in a single action of the proceeding against the vessel and the proceeding against the cargo, inasmuch as both proceed.ings arise out of the same transaction, and it is not seen that the right of the parties can be affected by the joinder. Without, therefore, expressing a final opinion either in regard to the liability of the vessel or the jurisdiction of the court in the matter of the cargo, the order now made will be that the case proceed to a hearing upon pleadings and proofs, with liberty to the claimants at such hearing to raise and reargue either of the questions last above mentioned, in view of the facts as they may appear in evidence.
-See, also, TiUllWTe v. Moore; 4 FED. REp. 231.
OONTINENTAL NAT. BANK V. ELIOT NAT. BANK. CONTINENTAL NAT. BANK
ELIOT ·NAT. BANK and others.
(Circuit Court, D. Mas8achu8etts.
NATIONAL BANKS-TRANSFER OF STOCK-ATTACHMENT.
An unrecorded transfer of national bank stock will take precedence of a subsequent attachment in behalf of a creditor without
In Equity. W. G. Loring and J. G. Gray, for complainants. A. A. Ranney, for defendants. LOWELL, C. J. R. B. Conant was the cashier of the Eliot National Bank, of Boston, and owned 158 shares of its capital stock. Each of his cetjiificates contained these words: "Transferable only on the hooks of the bank by the said Conant, or his aUorney, on the surrender of this certificate." The Continental National Bank, of New York, was the regular correspondent of the Eliot Bank. In April and May, 1877, Conant borrowed $9,500 of the Continental Bank, in two sums of $5,000 and $4,500, and sent them as collateral se· curity certificates for 95 shares of stock of the Eliot National Bank, with a power of attorney to transfer them upon the books, but they were not so transferred. The by-laws of the bank provide that the stock shall be 'assignable only on the books; that when stock is transferred the certificate shall be returned to the bank and cancelled, and a new certificate issued. In July, 1878, Conant confessed to the directors of the Eliot Bank that he had embezzled the funds of the bank to the amount of about $70,000. They required him to resign his position as cashier, which he did, and he .has since been convicted, and is now serving a sentence of imprisonment for his fraud. The Eliot Bank attaehed his shares in an action which is still pending in the superior court for Suffolk county. Afterwards the Continental Bank sent to tho Eliot Bank the certificates and powers of attorney, and demanded a transfer and new certificate, which was refused. This bill is filed to require the transfer to be made, or fOl damages, or other relief. Conant is made a defendant, and v.7,no.4-24