MARTIN t1. 182,259 FEET OF HEMLOCX· LUMBER.
415
inevitable, legal consequence by the express terms of the constitution and statute. But in this case there is no evidence at all of any collusion or fraud-nothing to show that the indebtedness in question was not honpurposes of the cOrporation, and honestly contracted for the estly paid by the plaintiff, Borland, who was, like the defendants, personally, liable for his proper share. It would seem from a consideration of the whole case, upon the evidence before the court, that the stockholders of the two corporations mentioned in the findings, acted in concert proceeding harmoniously, and satisfactorily, while the Wyoming & Dakota Water Company had a prospect of acquiring, and enjoying a large and valuable property. .While the prospects were good, the assessments to meet the expenses of their operations were, cheerfully, paid by the defendants, as well as others. But when the right to the water upon which the value of the investment of the water company wholly depended, was adjudged against them, after a vigorous litigation, their hopes were blighted, and their investment became nearly worthless. Then the stockholders declined to pay the assessments levied to meet the liabilities of the corporation, and the plaintiff, Borland, alone being a large, if not the largest stockholder, assumed the burden, and paid off the existing indebtedness. If, this be so, it is but consistent with justice and common honesty, as well as the requirements of the law, that the defendants should be required to refund to him their just share of the amounts so paid. Let judgment be entered for plaintiff, against each defendant, for his portion of the amount due as stated in the findings, with costs.
MARTIN
t1.
ONE
HUNDRED AND EIGHTy-Two THOUSAND Two HUNDRED AND FIFTY-NINE FEET OF HEMLOCK LUMBER.
(District Court, E. D. L
York. December 4, 1888.)
8HIPPING-FREIGHT-RECOU1'MENT-ToWAGE.
Libelant contracted to transport a cargo of lumber in a canal-boat to pier 4. East river. Through the mistake of the 'shipper, no consignee appeared, and flnally the claimant, at the request of the shipper, agreed to take the cargo for his account, and with his own tug towed the canal-boat to the Erie basin, where his yards were situated. Held, that claimant could not recoup against the claim for freight the cost of towage; libelant's contract was complete when the boat arrived at pier 4· Nor could he recoup for moneys paid extra hands employed in discharging the lumber, the evidence being conflicting as to whether they were employed at the request of the master, and pn his account. to aid him in the ordinary discharge of the cargo.
.. BAME-COSTS OF DISCHARGE.
In Admiralty. Libel for freight and demurrage. Anson B. Stewart, for libelant. Hobbs &: Giff(j{'d, for claimant. BENEDICT, J. This is an action.to recover freight and demurrage alleged to be due upon a contract for the transportation of a cargo of lum-
416
'FEDERAL REPORTER,
vol.
87..
ber in the 'canal-boat Lizzie Campbell. The lumber was shipped at bany by Boyd & Co., who gave directions that it be delivered at pier 4, East river, New York city, to one George Adams. A shipping memorandum to that effect was issued. Under that contract the cargo was transported in the canal-boat to pier 4, East river, where it arrived on Thursday, September 1st. Owing to some mistake on the part of the shipper, no consignee appeared, or could be found, to receive the cargo; and finally, by the request. of the shipper, the claimant Thomas MeCaldin agreed to take the cargo for their account. McCaldin then sent one of his tow-boats to pier 4, East river, where the canal-boat was taken in tow, and carried to the claimant's yard at the Erie basin, and there the lumber was discharged at the bulk-head foot of Walcott street, outside of the basin. The discharge was completed on Wednesday following, and the canal-boat then towed back to pier 4 by one of the claimant's tow-boats. The gross freight amounted to $164.03. In addition to this freight the libelant claims four days' demurrage. The claimant disputes the right to claim any demurrage, and claims against the freight by way of recoupment, in addition to the sum of $37, paid to the master, and not in dispute, the sum of $8 for the towage of the boat from pier 4, East river, to the claimant's yard and back to pier 4, and the further Bum of $36, paid by the claimant to three men employed by him to as· sist the master in landing and piling the lumber. As to the claim for towage my opinion is that, under the contract made in this case, the master was not required to take the lumber to 8. different place than that named in the contract, which was pier 4, East river, New York, and therefore that the claimant is not justified in deducting from the freight the expense of towing the boat from pier 4 to his yard and back again. As to the deduction of $36, sought to be made for money paid by the claimant to three men employed by him to aid in the discharge of the lumber at the Atlantic basin, there is a serions conflict of evidence. It appears that the usual method of discharging the lumber is to pile it in two tiers, but the libelant claims that in this case the lumber was required by the claimant to be in three tiers, involving extra labor, which the claimant provided tl.t his own expense, and he produces some five witnesses, I think, to prove that the lumber was piled three tiers deep, and that McCaldin employed three men on his own account, because the lumber was required to he so piled, instead of in the ordinary method. On the part of the claimant there is testimony equally positive that the lumber was not piled three tiers, but only two, as is usual, and that these three men were employed by the claimant at the request of the master, and on his account, to aid him in the ordinary discharge of the cargo. Upon this issue the burden is upon the claimant, and upon testimony so conflicting I am unable to hold it proved that the extra men employed by the claimant were so employed at the request of the master, and for his account. 'fhis deduction cannot, therefore, be allowed. As to the libelant's claim for demurrage, it cannot be allowed. He is entitled to a decree for the full amount of freight,-$164.03,with the costs of this action.
PREsTON V. UNItED STATES.:
417
PRESTON. V. UNITED STATES.
(District Oourt,
w: D. Mis8ouri,
W. D. October Term, 1888.) I
1.
COURTS-FEDERAL COURTS-CLAIMS AGAINST UNITED STATES-REJECTION BY COMPTROLLER.' ,
Under act Congo March 8,1887, forbidding district courts to entertain claims against the government, "which have heretofore been rejected ()r reported on adversely by any court, department, or commission authorized to hear and determine the same, " the court must dismiss a claim rejected by the comptroller of the treasury. Following Bli88 v. U, 8.,84 Fed., Rep. 781; Rand v. U. S., 36 Fed. Rep. 671.
8.
SAME-COURT OFFICERS-MESSENGER AND CRIER.
There is no incompatability"between the offices of crier and messenger of the district and circuit .courts; and under the rule inU, S. v. Saunders,,120 U. S. 126, 7 Sup. Ct. Rep; .467, the same person may perform the duties receive the salaries of both.
At Law. Action by James H. Preston for compensation for services rendered. Qua"leB & Guffin, for plaintiff. Mi E. BenWn, for the United States. PHILIPS, J. This is an action to recover compensation for plaintiff's. services as crier of the district colirt and circuit court of the United States for the Western district of Missouri The petition alleges that the plaintiff, under proper appointment, performed 'serYices as crier of said courts, on certain days between the 2d day of January, 1886, and the tiling of this petition on the 23d day of May, 1888; and that the aggregate of his per diem amounts to $438, for which he asksjudgmenti The the facts to be substantially as follows: That from the 2d day of January, 1886, up to the time of the institution of this suit, the plaintiff performed the duties in said courtS of messenger, from which h.e received from the government a per diem compensation of two dollars; that during this same period, under appointment by the court, he also performed the duties of crier of said courts, during their sessions from January 2, 1886, up to the; 23d. day of May, 1888. The answer alleges, and the court finds the facts to be, that for the services thus rendered as crier the plaintiff was paid by the government up to February 8, 1886, since which time the comptroller of the treasury department has rejected the claims for such compensation on the ground that the plaintiff was not entitled to compensation for the two services of messenger and crier. As to so much of the claim as precedes the 3d day of March, 1887, thtJ court holds that it has not jurisdiction over the subject-matter, as by the proviso of secHon 1 of the act of March 3, 1887, conferring jurisdiction on this court over such actions, the court cannot hear and determine such claims 'I which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same." It has been expressly held by Judge BREWER in Bliss v. U. S., 34 Fed. Rep. 781,followed by WEBB, J" in Rand v. U. 8.,36 Fed". Rell. 671, that the comptroller of the treasury having,charge of the adjustment of v.37F.no.9-27