UNITED STATES V. FRENCH.
granting lands to the territory or future state of Minnesota to aid in the construction of railroads, and subsequent acts, disposing of those lands for that purpose, passed by the legislature of the state March 8, 1861, and March 4, 1864.
UNITED STATES 'lJ. FBENCH.O
(Oircuit Oourt, E. D. Pennsylvania. October 7, 1881.) 1.
Bection 4549, Rev. St., which requires that the discharge of seamen should, in certain cases, be made in the presence of a shipping commissioner, is qual. ified by the language of section 4504, and does not apply to a vessel which has been engaged in a voyage to the West India islands. .
This was an action against the master of a vessel to recover the penalty prescribed by section 4549, Rev. St., for the discharge of a seaman without going before a shipping commissioner. On the trial (booore Bradley and McKennan, JJ.) plaintiff proved that the defendant was the master of the American schooner Dora M. French; that>
""Reported by Frank P. Prichard, Esq., of the Philadelphia bar.
lJesailed from a port in Maine for a voyage from thtlnce to Barbadoes and thence to Philadelphia; and. that on his arrival at the latter port lle paid off and discharged one of his crew without going before a shipping commissioner. John K. Valent'ine, U. S. Dist. Atty., for plaintiff. J. Warren Coulston, for defendant. The court directed the jury to find a verdict for defendant, and su')sequently filed the following opinion: PER CURIAM. An examination of the Revised Statutes makes it very evident that section 4549 is to be qualified by section 4504. The act of June 7, lS72, providing for the appointment of shipping commissioners and for the further protection of seamen, required that the payment and discharge of seamen should in certain cases be made before a shipping commissioner, and that an agreement, in writing, in a certain specified form, should be entered' into with every seaman shipped for a voyage. See the act, 17 St. at Large, 262. The act, by its terms, applied to vessels bound from a port in the United States to any foreign port, or if of 75 tons, or upward, bound from 'a port on Atlantic to a port on the Pacific, or vice versa. It was provided, however, that the master might himself act as commissioner in ·anY customs district where no commissioner had been appointed, and that the act should not apply where the seamen are by custom or agreement entitled to participate in the profits or results of a cruise or voyage, nor to coastwise or lake-going vessels that touch at foreign ports. See sections 12-22. By a supplement passed January 15, 1873, (17 St. 410,) the above proviso was enlarged by excepting from the operation of the act vessels engaged iu the trade between the United States and the British North American possessions, or the West India islands, or the republic of Mexico. The Revised Statutes, in section 4504, embody all these provisos. The only question or doubt that can be raised, grows out of the. phraseologyof section 4549, which declares generally that all seamen,di8charged in the United States from merchant vessels engaged in voyages from a port in the United States to any foreign ports, or, being ,of 75 tons or upward, from a port on the Atlantic to a port on the ,Pacific, or vice vena, shall be discharged and receive their wages in the presence of a duly-authorized shipping commissioner, except in .cases where some competent court otherwise directs, without any refflrence to the excepting provisos. But if the master himself may not he regarded in certain cases as a duly-al,lthorized shipping commissi01ler, in the terms of the sectioil, there can benodQubt .that the
WHITE V. ORAWFORD.
section is to be qualified by the language of the 4504th section, which expressly declares that nothing in this title shall prevent the owner, consignee, or master, of any vessel, except vessels bound from a port in the United States to any foreign port, other than yessels engage,d in trade between the United States and the British Nodh possessions, or the West India islands, or the republic of Mexico, etc., from performing himself, so far as his vessel is concerned, the duties of shipping commissioner. This language expressly applies to the whole title, and, of course, to section 4549, which is a part of it. We are perfectly satisfied that the revision has not altered the previous law, and that the act does not apply to a vessel which has been engaged in a voyage to the West India islands, which was thepresAnt case. We think, therefore, that the defendant is not liabl(; for the penalty sued for, and that the verdict must be in his favor. The same. conclusion, in effect, was reached by the supreme court of the United States in the case of U.8. v. The Grace Lothrop, 95 U. S. 527, where the question was, whether a writ.ten agreement, as required by the act of 1872, should be executed in the presence of a shipping commissione!, when the ship had been engaged in a voyage to the West Indies; and it was decided that the act in its original form, or as revised, did not apply to the case.
WmTE V. CRAWFORD
(Oircuit Oow·t, D. Minnesota.
1. PROVING CLAIM
A creditor waives any lien he may have upon the property of his debtor, by proving up his debt 8S an unsecured claim.
Robert P. Lewis, one of the defendants, on the seventh day of June, 1875, gave his note, and a mortgage to secure the same, on the S. W. ! of secHOIl 22, in township 30, range 22, excepting therefrom five acres in the S. E. corner thereof, to John W. White, the plaintiff,intending, however, to convey such property in township 29 instead of township 30. On the first day of July, 1876,the said Lewis gave a second note, and a mortgage to secure the same, on the same property as described in the first mortga.ge, as also upon' piece of property ; but, in this second rriortgage, the a certain same mistake as in the first. Again, September 1,,1877, the said Lewis, having discovered his mistake made in the first and second mortgages, makes '8. third mortgage for the purpose of correcting the mistake, in which he describes the property as being in towIlship 29. Between the giving of the first two mortgages and the third, correcting the first two., one James A. Crawford, a