UNITED STATES tJ. MOLLOY.
19
note was .the debt of defendant's partner, upon which defendant was carity. . . The other point is equally unsound. The claim is that the note for 8650, upon which judgment was rendered, was a renewal, and that as a renewaL it was not binding on this particular defendant. Stark, because of the prior dissolution of the partnership, a fact which was known to the creditor at the time he took it. The truth of the matter is, the newal was consented to by this defendant. It was given as a renewal of a part of a $2,000 note upon which confessedly both defendants were liable. The renewal was some time about the twentieth of August. On the third .of August this defendant writes to his partner: "Friend Sanborn: Yours of twenty-eighth July just at hand. I wrote you some days ago I could not provide for payment of note due 18th, Exchange Bank; and I ca:nDot. It must be renewed." August 18th, Exchange Bank, 82,000, that was the note upon which both defendants were liable, and this defendant writes to his partner saying, "It must be renewed." And on the twenty-seventh of August, after the renewal, he writes: "Yours twentieth August received. I am surprised you should renew those notes for so short a time, as you must be aware collections are coming in very I cannot meet them.". Obviously both before and after he recognized and consented to the renewals. The JDotion will be overruled.
UNITED 1.
STATES. ",. MOLLOY.
(OVrcuit Oourt, E. D. Missouri, E. lJ. April 20, 1887.1 VOTERS-FRAUDULENT REGISTRATION.
Where the state statutes require voters to appear. before the register and take a prescribed oath before registering, it is an offense indictable under section5512, Rev. St. U.S., for a recorder of voters to kIlowingly, Willfully. and fraudulently enter in the registration books, or cause to be entered therein, the name of a person as a qualified voter who has not appeared before him and applied for registration, nor taken the oath required by law. Where the act is proved to have been done and willfully. and not m'erely through madvertence or ignorance of offiCial duty, a fraudulent motive may be inferred. .
2.
SAME.
3. SAM1j:-IGNORANCE AND INADVERTENCE.
To .register a voter who has not appeared or taken the oath is not a criminal offense, however, if done without any fraudulent or criminal motive, but ' merely through inadvertence or ignorance of official duties, or of the manner in which they should be performed. .. The mere writing ofa person's name in the registration books is in itself no uffen$e if the person whose name is written appesrs and applies for registration, OJ.' takes the·9ath, and expressly or by neces$ary implication requests the officer to write his name. ., Where 'pe1"sonsappear before a register and give false names or places of reSidence, ·a.nd apply for registration under such nRUles or from such places of residllnce, and the register is imposed upon a!14 places their names upon the registl'&tionbooks as dUly qualified voters. he'1s guilty of no offense.
4. SAM:q-WRITING VOTER'S NAME·
IS.
SAME':'-DElCEPttON OF REGISTER.
20 6. CRIMINAL PRACTICE-ARRAIGNMEN'J', AND PLEA,.
' Where a defendant was not arraigned and made no plea before the trial, but was identified, knew exactly the offense charged, denied the charge, went to trial on the denial, and went the witness stand and there denied the offense, and was convicted, held, that he was not entitled, under the federa1 statutes, to a new trial, because of the failure of the record to show an ar' raignment and plea, for the reas'On that the irregularity was a "defect or imperfection in matter ofform only," within the meaning of section 1025, Rev. 1St. U. S., and did not tend to his prejudice. '. .
.7. SAME-ExPERT EVIDENCE. . . . The jury in a criminal case are not bound by expert evidence as to bandwritin$: any further than it coincides with their own opinions,or than they think It deserves to be credited.
Indictment under Rev. St. U. S:,,§ 5512, forfraudulentregistration of .·· . . . . '. voters in St. Louis, Missouri. . For Missouri statute relative to registration ofvoters in' citie!, of over 1,000, see Sess. Laws Mo. 1883,p, 38. . . rhere was no fortnal arraignment and plea. Thomas P. Bashaw, for the United States. Naplon & Frost, for defendant. THAYER, J.,(charging jury.) If the testimony in tMscase you beyond any reasonable doubt this defendant ;Was a ,deputy recorder of voters for the Twelfth ward of this city at the registration held last September, for the November election of the year 1886, and that as such recorder of voters, having the registration books in his custody, he "knowingly and willfully," and not merely through ignorance or inadvertence, entered therein, or caused to be entered in such books, the in this indictment, as though they names of any of the persons were qualified and duly registered voters, when in point of fact such persons did not appear before him or apply for registration or take. the oath required of voters. then you will find him guilty. You may infer that he was actuated by some evil or fraudulent motive, if he committed the act charged in this indictment "knowingly and willfully," and not merely through inadvertence or ignorance of his official duties. Yo'u may judge of the credibility of all of thewitllesses, and give their testimony such weight as you think it deserves. . . The testimony of the expert as to handwriting is sitnply an expr8l3sion under oath of an opinion which he entertains, and you are not bound hy it any further than it coincides with your own opinion based on tEe examination you have made of thEl handwriting in question, or than you think it deserves to be credited with on account of the experience he has had in comparing handwriting. Now, on the other hand, you .will give the defendant the full benefit of the presumption that he is an innocent man, and you will not convict him unless the go\iernmentha.s proven the charge in the indictment beyond any fair or reasonable doubt; and even though you think that. he wrote the names mentioned in the indictment,· or caused some of them to be entered on the registration books, when the persons did not appear before him or take the oath, still you must notconvict him if the
UNITED STATES V. MOLLOY.
evidence satisfies you that, he had no fraudulent or criminal motive in so doing, but that his ,act was merely the result of inadvertence or norance of his official duties, or ignorance of the manner in which those duties ought to be performed. The mere writing of a person's name in the registration book by the registration officer is in itself no offense, if the person whose name is written appears before the registration officer and applies for registration, or takes the oath, and expressly or by necessary implica,tion requests the officer to write his name. It is immaterial who writes the name. In other words, gentlemen, the offense laid in this indictmentconsi!lts in the act of entering names of persons on the registration books who do not ,appear before the officer, or applyJor registration or take any oath such as ,the law requjres. If, persons came before this defendant and gave false names and places of residence, and applied for registration del' such assumed names or from false, places of residence, and the fendant was imposed upon by such persons and in good faith tered the oath andplaqedAheir names on the regist:r:ation books as qualifieq ;voters, and in that way some of names,mentioned in the indict., ment were placed upon. the b()qks, then the court directs you that you cannot convict the defendant by reason of any of his acts in respect to such names. · If all the names in the indictment, as the defendant has testified, are names thll,t were given to the defendant by persons who uaVy came before him and gave such names and their residences, and took, the oath and applied for registration, and the defendant accepted them and placed their names on the books in good faith,that is,he ing ignorant of, any wrong-doing on the. part of those persons making the .application, (if there was any wrong-doing on their part,) then you must .acquit him. You can take the case. The jUl'ybrought in avel'dict of guilty.
A for a new trial was then filed, and the following opinion was -delivered, thereon: BREWER, J., (oraUy.) While this case was not tried before me, yet I was present and heard the argument yesterday, which was before both ,of us, and the single question presented is one of law, so that I take part in the,decision of that question, wh,ich is this: the record fails to :show an arraignment and plea before the tri81. It has been repeatedly decided by the supreme ,court of this state that a record which fails to show an arraignment and plea discloses such error as compels the granting of a trial by that pourt. It is claimed that that line of decision the settled law of this sbite is controlling in this court, and -that we must therefore, following it, set aside this verdict. It is worthy of inote, in the first place, that while that is the settled law pf MiB8ouri, it is
22
FEDERAL 'REPORTER.
rega,rdedby tlie supreme court of the state as a meretechriicality in misdemeanor cases, and is followed simply because it has become a part of its body oflaw. In a recentcase in 88 Mo. 105, (State v. Vanhook,) decided in 1885, the chief justice of the state, though adhering to the rule heretofore laid down, closes the opinion with this language: "After the jury is sworn and the trial proceeds, and all the testimony relates to the guilt or innocence of the accused in a misdemeanor case, it looks like trifling with justice to reverse the judgment, because the record fails to show an arraignment or plea of not Language which I think is a fair commeIitary in view of the statute of Missouri, (section 1821,) which declares:' "But no new trial shall be granted "......for 'several reasons, the last of which is this-" nor for any other defect or imperfection which does ncit tend to the prejudice of the substantial rights of the defendant upon the merits." Be that as it may, we have the federal stat-' utes, and wherever there is a federal statute it controls irrespective of any state law or practice. In the first place, it is well to consider what the purpose and necessity' of an arraignment is. It is laid down in the old law books that three objects are to be subserved: (1) The identification of the defend..; ant; (2)giving him information of the particUlar offense charged against him for which he is to be tried; and (3) to receive from him the plea which he makes to that charge. . Now in the case, as tried, it is perfectly evident that the defendant knew' exactly the offense' charged against him; tha-the was identified; and that he denied the charge and went to trialttpriu that denial. Indeed, he went on the witness stand himself, and there denied it. It mayseem somethIng of an anomaly to say that proceedings may besbcn that in the trial court there is no evidence of prejudicial error when the record transferred to an appellate court may disclose such error. And yet, this matter of arraignment presents very much such a case. Where a record taken to the supreme C0urt shows simply an indictment, a trial, and a conviction, there is nothing affirmatively appearing upon the face of the record from which that court can say that the defendant knew, prior toihe impaneling of the jury, and prior trial, the exac,tnature of the charge. against him. Non constat but that he went to'trial supposing' that the charge was one thing, and, after the testimony was introduced, discovered for the first time that he was being tried for another and different offense. And so, pursuing that thought, that court might say that the record disclosed error, because it fa.iled ·to show,as one of the guaranties of his protection, that he knew, prior 'to the time his Qlj.se was'.lJresented to the jury, the exact offense charged against But the trial court may have had, as Brother THAYER had inthis trial, theinost abundaht evidence that the defendant knew exactly the offense wbfch ·was charged against him, and was prepared to go to trial upon itj. lird if he did,allthat the arraignment subservea was aqcpmplished;' and to say that .should be entitled to a new trial' f6r that omission would' &eehlto 'be,' as Chhif Justice HENRY wel1says, "like trifling with justice.". .. But,'furtber"than that, we have the federal statute; which provides
UNITED STATES V. MOI,I,OY.
23
(sectlon 1025)that "no indictment found and by a grandjury," etc., * * * "nor shall the trial, judgment, or other proceedings thereon, be affected by reason of any defect or imp.erfection in matter of form only, which shall not tend to the the defendant." . I am aWare that, putting a narrow construction on that section, it might be SfLi<i tpat it refers only toa defect in the form of the indictment; and yet it is, obvious to my mind, from the whole tenor of the federal statutes, that it has, or was intended to have, a broader significance, and to declare' that no mere irrEjgularity or defect in the form of the proceedings which did· not tend to the prejudice of the defendant should be ground for a new trial. It is a well-known fact t},latby the common law,,' differing in that respect from the rule which obtains under the state statutes, an application for a new trial in civil cases presents no matter of right, but is simply an appeal to the discretion of the court, and, when that is exercised one to review. And that is the way or the other, the decision is not su effect of the statutes of congress as interpreted. by the decision of the supreme court, they holding in two or three late cases (Railroad Co. v. HorBt, 93 U, S. Neu;comb v. Wood, 97 U. S.,584; Coffey v. U. S., 117 U. S. 235, 6 Sup. Ct. Rep. 717,) that this matter of new trials in civil cases depending. upon the discretion. of the trial court is something which is settled by the law of congress, and Cannot be affected by any state law. If it be true, as I think mustpe ll.pparent to anyone, . that the failure to formally arraign the defendant in this case was not a matter which tended to his prejudice, that by that failure he Was not deprived of a singie substantial right, that he was Ilot put to triid without full notice of that for which he was to be tried, that he was not caught by any surprise or in any other way, it would, as Chief Justice HENRY well says, seem to be "like trifling with justice" to. disturb the solemn verdict of the ju,ry, and send the case to' a new jury to review the same facts on another WaI. So, by reason of the provisions of the federal statute determining the coursedf procedure in this court, although we recognize the fact that that is diffetent from the rule which obtains in the state courts under the state agree that the motion for a new trial should be overruled, and it is so ordered. THAYER,J. lconeur in the ruling that the failure of the record to show a formal arraignment of the defendant is no ground, urider the circumstances of this case, for granting a new trial. While the 1'ule is firmly established in the state of Missouri that the court of last resort will iaward anewtrialin all criminal cases, felpnies or misdemeanors, if the l'ecord fails to show a formal arraignment, (State v. Vanhook, 88 Mo. 105; State \t. Jaquea, 68'Mo. 260, and State v. Saunders, 53 Mo. 234,) yet . Tregii'd our action in this case as controlled by a federal Section·l025, Rev. St. S.,provides that "no indictment found shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in of
FEbERALREPORTER.
form only , which shall not tend 't<>'the prejudice ofthedefendant.'" If this provision is to be given any'effect as a curative statute, it fits the present case, and remedies the irtlegularity complainedoI. The defendant was present in court throughout the trial. The indictment was not only read in the defendant's presence, but he took the stand as a'witness, and in that capacity denied substantially all 'of the Inaterial charges therein contained. The issue of not guilty was as clearly made before the jury as it could have beenfuade by a formal arraignment and a formal entry on record of defendant's plea. In face of the statute above quoted, we cannot grant a new trHilfor'aiJ. irregularity in the 'proceeding which could not possibly have tended to the defenclant'sprejudice. In this connection see U. S. 'v. McKee, 4 Dill.!.
THE QUEEN OF ',' , .. .
ST.
.tOHNS.! ' , ': .
" '(Oflrcitit r!o'lJ/rt, No D. Fl9'1da. December 13, 1886.)
\,' ' I ' :
'.'
:
. ,"
!:
1.
MARITIME
Taking a nq,te and, ,time;will not necessarily ,release the maritime ' ' , lien resulting from supplies furnl.shed a Yessel. One who' ill:a.manager or part ownerof a vessel &houllLnot:be allowed a' lien upon hertQ the prejudice of outside lien:holders." ' It is well that advances and supplies made to 8 vessel in her home port are presumed to be made on the credit of the owners,' and no maritime lien results. ,' ,' . '
','
" ,
2. SAME-LIE:N'dirOWNE'R.
,
B. SAME-SWl'ljIE8. p; HOME P O R T . '
Appeal in Admiralty. , , In this cause, submitted on the transcript and evidence,the court finds the following facts: (1) The Queen of f't. Johns was owned by the Favorite N Company, a corporatioJ;l ,created under ,thelll-wsof Kentucky, at Covington,Kentucky, in November, , , 1 8 8 4 . ' " (2) That the original stock of the said company was divided into 500 shares, and was taken November 21,1884, as follows: Certificates of Stock: (1) 100 shares, $100 each, to W. R. Kemper; (2) 100 shares, $100 each, to Sarah Mor,ton j (3) 50 shares, $10o-each. Henry Morton; (4) 50 shares, $1'00 each, Henry Morton; (5) $100 each, Frank M. Morton. Total, 500 shares, $50,000. . , "." . (3) il'hat Henry Mort6n, the president of the corporation, reported that the bill of ,sale conveying the steamer to the corporittion had been left for record ab'thecustom house in Cincinnati, where SheWRS enrolled. There was no 811bseqt!J.ent enrollment. , (4) That thearti.oles of incorporation provided that the capital stock of the company was "to be paid in incflsh, or before the twelfth <\ayof Decem ber, 1884," (article5j),and ,that the said corporation shall be managed by a president and two directors, who sllallbe chosen by ballot from the stockholders lReported by Josep'h P, Hornor, Esq.o'ofthe New Orleans bar.
THE QUEEN OF ST. JOHNS.
25
after the 6rst election, (article 7;) and the by-laws; (section 7) provided that either the president andorte director, or two directors, shall constitute a quorutnoftheboard of directors and be entitled to act. (5) Article 20f the articles of incorporation provided that the business of said corporation shall be building, chartering, buying, selling, conducting,. and running of a steam-boat, or other vessels or water craft,and transpOl1J;atiort of freight and passengers, and the buying, selling, and disposingofJ'I]lch vessels, and other real and personal property, within the United States, in whole or part as the corporation may deem proper. Section 4 of the by-laws further provided that the secretary shall keep in the mmute.-book a full aecount of all· proceedings, which shall be subject to the inspection of any stockholder; and section 3, that caUed meetings may be held at any time and place designated by the president. (6) Article 11 of the act of incorporation provided. that .the private property of the stockholders shall be exempt from liabiUty of the debts of the corporation;· and article 13 provided. that any stockholder may at any withdraw from the incorporation by selling his stock. t!>. another party for any amount, but he shalLfirst pay his share of the debts of the corpora,tion !lot that time, or sell the same liable therefor, and no such .transfer of stock shall be made until the officers of the corporation have their option of taking said . stock at the same price. (7) That, as appears by the minutes of the company, Henry Morton was chosen president, and W. R. Kemper, secretary, upon the .organization of the said corporation, about November 3, 1884, and both were elected November .a, 1884; and 'both continued holding said offices respectively from !:'Iuch election down to the time the steamer Queen of St. Johlls.w.as libeled in this cause; and on the same date, November 6,1884, Frank M. Morton and W. R.Kem", per were elected directors and have so continued; that the said president,· Henry Morton, was and is the husband of Sarah Morton, who owned and continued to own and still owns one-fifth of the stock; and Henry Morton is the father of Director Frank M. Morton, who took originally two-fifths of the stock of said company; and the said Henry Morton took originally one-fifth of said stock. (8) That,so far as the minutes of said company produced in this case show, it does not appear that said stock so subscribed ·was paid up, eitherin whole <lr in part, but ·it otherwise appears in the case that the steam-boat Queen of St. Johns was then nearIybuilt at a cost of about $42,900, and was owned by Frank M. Morton, three-fifths, Sarah M. Morton, one-fifth, and W. R. Kemper, one-fifth; that she was sold to the Favorite NaVigation Company at a price not appearing, and thereupon Frank M. Morton being desirous that his father, Henry Morton, should be president, W. R. Kemper secretary, and himself treasurer, Henry Morton subscribed for one-fifth of the stock, for which Frank Morton paid; the whole case shOWing no payment for stock subscribed by or for any subscriber, except such payment as was made by the transfer of the Queen .of St. Johns at an unknown price to the Favorite Navigation Company. (9) That certificates for 100 shares of stock of the Favorite Navigation Company were issued November 21, 1884, to Henry Morton, signed by himself as president, and receipted for by him; that these certificates were marked canceled December 16, 1884, and on the same day llew certificates for 100 shares were issued to Frank M. Morton; that from Novem ber 1 to November 19,1885,300 shares of the said capital stock were through issue of new certificates transferred by Frank M. Morton to Henry Morton, t.he latter receipting therefor. These 300 shares were without consideration and for the purpose of selling the whole or part, but no sale was effected, and a retransfer·was made by Henry Morton to Frank M. Morton by delivery and marking on stub in stock-book "Canceled," though no new cl'lrtificates were
26
FEDERAL "REPORTER.
issued or other transfer made on the books of the company. It. further appears that in February, 1886, Henry Morton acquired from W. R.Kemper 100 shares of the stock of the said company; by transfer in the stock-book and new issue of certificates, of date February 16, 1886, receipted for hy Henry l\Iorton, Feb1'11ary 26, 1886. '. (10) That after the transfer ofsald steam-boat to the Favorite Navigation Company and up to December 16, 1884, the said boat reoeived. additional machinery, outfitting, work, and labor, looking to her preparation to run in the St. Johns river, Florida, which machinery, outfitting. etc., were paid for with sUl'Ilsadvanced and obligations assumed by Frank Morton, Henry Morton, andW. R.Kemper, but forwhat amount does not appear; that from and aftel' December 16i!l;84, when the boat left Cincinnati on her trip t() St. Johns river, and up to the time she was libeled, during which time said boat had a run of ill luck constantly needing advances and frequently needing repaitsand once reqUiring radical changes, the expenses of said boat were met by moneys fLdvanced and obligations assumed and debts .contracted by said Frank Morton; Henry Mortoni'and·W. R. Kemper, generally acting as president and dirElctors of the Favorite NaVigation Company, Frank Morton and Kemper being aldo master and purser of the boat; that subsequent to December 16, 1884, and while,the said steamer was away from her home port, Henry Morton, at the domicile of the owner and the home port of the: steamer, made advances to relieve the needs of the said steamer in moneys and supplies to the amount, principal and interest, of $11 ,266.4:1, for whicb he from time to time took notes,payable In four months from date, signed "Steamer Queen of' St. Johns, per W. R. Kemper, Purser, Frank M.Morton," except for one amount,$1,880.97, January 1,1886, he took a note payable on demand for funds used in construction at 10 per cen.t.interest, signed" Steamer Queen of St. Johns & Owners, per Wi R. Kemper, Purser, Frank M. Morton, Master," and except ftlr one amount of $326.98, for which a note was given July 21, 1885, to McIlvain & Spergel, signed "Str. Queen of St. Johns & Owners, Favorite Navigation Company, by l!'rank M. Morton, Treasurer and Master," which note wasiiidoraed by Henry Morton and by him paid at maturity; that subsequent to December 10, 1884. both Frank M. MOl'ton and W. R. Kemper made advances, to relieve the needs of said steamer in large amounts, the latter taking notes for his advatices, signed by Henry Morton, president Favorite Navif{ation Oompany,and Frank M. Morton, master; that nearlyall of the advances made by said Henry Morton, Frank M. Morton, 'and W. R. Kemper, after December 16, 1884, were made after the said steamer had left Cincinnati, and to meet the necessities of said steamer, and were made individually by the respective parties, and constitute debts of the Favorite NaVigation Company. as well as of the steamer Queen of St. Johns; that Henry Morton, during the whole period covered by the supplies which he advanced to said steamer, and which he claims to have created a maritime lien on saidsteam"boat, was the president of the corporation which owned it, and constituted. with his son, who was the master of the boat during this period, and with ,Kemper, the sec, retaryof the organization, and who was also the purser. of the steamer, the board of directevs of the corporation, vested with the powers hereinbefore mentioned. (11) That shortly after the Queen of theSt, .Johns' arrival upon the waters of the St. Johns, and while being in'the port of Jacksonville, Florida, the respondents in this case other than John G. Christopher furnished to the said steamer the'supplies as set up in their several libels; that the said supplies were necessary;" and that the master had no other means in the emergency thu& put upon him than to pnrchase supplies from the said respondents, as shown in their several accounts, and that they were purchased on the credit 1)f the steamer.
·27
{!2) That while said steamer was in said port of Jaeksonville therelilpondent,ilohn G. Christopher, also furnished supplies and made advances of which the steamer stood in need, ltmounting to the sum of $11,422.69; that as toll. .large.part of these advances, a,mountinK to the sum of $10,306, consisting of )Vhich was applied to paying the arrears of sem:p.en's wages ,and purmachinery for the bOat, the said Christopher took notes' on time see ·c:\ued by mortgages of the said steam-boat, which mortgages were executed to him by the master and purser of the steamer, which, however, were never recorded, except in the clerk's office, Duval county, Florida; that the said ;Henry Morton, the president, did not join in the execution of the mortgages, but knew of their execution, and disbursed a part ·of their proceeds, in purchasing machinery for the boat. (13) 'fhat the following named parties made advances to the steamer Queen of St. Johns, for which they filedUbels in the district court, and for which decrees Were made in their favor in the follOWing amounts, respectively, towit: The Alabama Coal & Coke Company, $111.17; Henry Bryant, $53.19; J. S. Wright, $6.50; Given & Smith, $6.80; Alexander B. Stevens, $15; A .. P. Taft, $56; J. E. Merrill & Bro., $102.28; Buchanan & Dalaporte, $23; Gillen & Haywood, $13.20; W. R. Lombeck, $546; W. R. Kemper, '$1,456; H. R. Duval, $100,-which amounts Were decreed by said district court to be paid out of the proceeds of the sale of the steamer Queen of st. Johns now in the registry ofthis court, and which decrees were not appealed from, and:the amounts due are not disputed in this court. (14) That there is due to the following named libelants for advances to the steamer Queen ofSt. Johns the following amounts, rei>pectively, to-wit: E. C. Pickett, $144.37; R. B. Hilliard, $74.18; Wightman & Christopher, $781.79; Drew, Hazeltine & LivingSton, $197.46: Geo. F. Drew & Co., $976.69; Henry Clark, $292.70; F. E. Smith, $104.28; JohnG. Christopher, $1, 116.69,-which amounts are debts of the Favorite NaVigation Company, owners, and constitute a maritime lien of the proceeds of the steamer Queen of st. Johns now in the registry of the court. . (15) That the steamer QJ.1een of St. Johns was sold by the United States marshal, after monition and upon default, for the sum of $12,000, which sum, less'certain payments to seamen by consent and the costs of the district court, is now in the registry of this court, and amounts to the sum of $9,952.85. And the court finds as conclusions of law: (1) That the decrees of the district court, not appealed from as set· forth in the thirteenth finding of facts, should be paid from the funds in the registry of the COUlt. (2) That the maritime liens declared and found in fourteenth finding of facts should be paid from the funds in the registry of the court. (3) That the remaining funds in the registry of the court, after paying the costs of the district court anti the marshal's costs, shOUld be paid to John G. Christopher, libelant herein, on account of his claim for advances made and moneys loaned to the steamer Queen of St. Johns. (4) That the costs of this court on appeal should.be paid by Henry Morton Horace Bisbee, for libelant, Henry Morton. A. W. Cockqri}}, Son, for libelant, John G. Christopher. PARDEE, J. In explanation of the conclusions of law it is proper to say: 1. As to the claim of John G. Ohristopher. There is no doubt that the advances made by Christopher were to a vessel away from her home port in necessitous circumstances. They were applied to the use of the
28
. JtEPORTER.
vessel, and wlll'emade on the cr.edit of the vessel. Had notiroe notes and mortgages been taken, there would be no question that a maritime lien resulted, for these advances and supplies. It has 'been frequently decid(ld that taking a note and giving time will not necessarily release maritime lien resulting from supplies furnished a vessel. See The St. Lawrence, 1 Black, 522; T/le Kimball, 3 Wall. 37; The lJird of Paradise,5 Wall. 545; The Alabama, 22 Fed. Rep. 449; The Gen.. Meade, 20 Fed. Rep. 923. The mortgages taken by Mr. Christopher were executed by the master and purser, and are of doubtful validity; but, whether valid or not, it is difficult to see why taking additional security by way of mortgage on the shoul<l,pe. presu rp.ed of itself to be a waiver of In the findings made it is not dethe. lien given by the maritime nied that Christopher has a maritime lien for his advances, but it is held that such lien under the equities of this case ought to be postponed in favor of those having as security qIlly maritime liens. 2. As to Henry Morton's claillL8.. He was the president of the incorporated company owning the vessel, and as such he was one of her managers, and actively participate<l in the management. As he was president and so acted, he is under the charter estopped from denying that he is, and was during the term of his presidency, a shareholder in the company, so that it is immaterial to inquire whether at certain specified periods he was a shareholder or not. He is now. and was when the vessuch ,shareholder he was apart sel was libeled, a shareholder, owner in reality, if not technically. Neither as manager nor as part owner should he have a lien to the prejudice of outside lienholders. Besides as a shareholder under the charter his shares (to the extent they are not are charged with the debts of the company. The recpaid up at ord does not show that the shares now held by Mm are paid up, but the evidence rather negatives such full payment. Again, Henry Morton did not make advances in a foreign .port, although the vessel to which the advances were made was in a He himself made all his advances while he was at the home. port and was managing for the owners. It js well settled that advances. and supplles made to a vessel in, her home port are presumed to be made on the credit of the owners, and no maritime lien The record of this case shows that Frank Morton and W. R. Kemper have equallrgood claims as Henry Morton, and if the pretensions of Henry Morton to, a maritime lien on the steamer Queen of St. Johns are well founded, the11 that vessel, worth about $12,000, came into the admiralty court burdened with secret liens in fiwor of the president and directors of the Favorite Navigation Company, owner, to the amount of over $20.000, and yet these three parties were the managers of the vessel, and the practical owners of four"fifths of her. If euch liens were to be allowed in a court of admiralty, it would open the door to fraud and collusion to such an extent that no safety would exist for any bonafide furnisher of supplies to a needy vessel in a foreign port.
THE L. L.
LAMB·.
29
THE L. L. LAMB. (Diatrir,t Oourt. E. D. Michigan.
June 1, 1887.)
SEAMEN'S WAGES-LIEN ON SHIP-CONTRACT WITH CHARTERER-WAIVER.
Where the vessel was chartered for a wrecking expedition, to be accom· panied by the owner and master, but the crew to be paid by the charterers; held. that the lien on the ship was not waived by the seamen because they knew of the contract with the charterers and hired to them. It requires some express agreement by the seamen to serve on the personal credit of tbe charterer.. or else a state of facts from which that intention must neces· sarily be implied. If the master and owner know that the charterers are insolvent and do not disclose .that fact to the seamen at the time of engaging them for the charterers. the concealment is a fraud upon them, and any agreement to release the lien on the ship would be disregarded by the court.
SAMlll=CONCEALMENT OF FACTS BY MASTER OR OWNER.
In Admiralty. 0ha8; K. Dodge and Edward McNamara, for libelant. Howard Wiest. for claimant. HAMMOND, J. John Buzzard was owner and master of the schooner L. L.Lamb, and the libelants Were for several months prior to the disputed transactions involved in this suit the crew of that vessel. He chartered her to McMorran & Reynolds at $15 a day from the eighth day of June, 1886, for a wrecking expedition to Lake Superior; they "to furnish. provision and men, (except the master and mate,) all wrecking gear, payall and wages, except master's and mate's, repair all damage they may do except natural wear and tear and excepting her being wrecked or disabled." The schooner went to the lake to work upon a sunken steamer accompanied by a tug, Buzzard going as master and his son ad mate. There were some 20 or 25 men employed by the charterers to go upon this expedition, some of them being seamen and others not. She was gone about three months, and was employed in taking out railroad iron, or lying by to receive it from a lighter, sometimes sailing out to the wreck and sometimes remaining in the port near by, during which notmuch was done in the line of a seaman's duty except to take care of the vessel, wet her down, keep her sails in condition, scrape masts, etc. On the return of the schooner the three libelants arrested her upon this libel for wages at $1.25 per day for each of them. According to Buzzard's contention and proof he paid off these three men, who had-been his crew for some months, on the day of the charter-party, and they then hired to the "wrecking party," as the other men did, and were to look to that concern for their wages and not to him. According to the' contention and proof of the libelants they were hired as seamen and Were conthmerl as the crew ofthe schooner by Buzzard himself, but werealsb to help the wreckers in thei1' work, which they did. It seerns froni' the proof that the" wrecking expedition" was a venture of two in80}vent persons named Merriman and FOWler, who were without credit.