6 F. 639 -

T,lIE EFFIE J. SIMMONS.

639

THE

EFFIE

J.

SIMMONS.

(District

1.

TuG

OOU1't, D.

¥a,ssachusetts. April

1881.)

:.urn

A tug is bound to 'know the nature of· the bottom of the stream and the depth .of the water in it is employed.
:Z. S.um-S4ltm. , , A schooner, while being towed up the Charles river, as the, tide was runnin:g out, grounded with her head up stream, in such a position that she would probably have sustained no injury if she had not been disturbed. The tug, however, attempted to haul her off, and fiDllolly left her with her sternfast where it first tou,ched, but her head projecting into the channel, where the bottom was sufficiently uneven to cause her to strain and break. Held, that the tug was in fault in thus a.ttempting to pun the vessel off.-[ED.

F. Dodge and E. L. Dodge, for libellant. Frank Goodwin, for respondents.

D.,J. The respondents undertook, by their tugboat, the Charles River, to tow the schooner Effie J. Simmons, laden with coal, up Charles river, from Crague's bridge to Henderson's wharf, in Brighton. As the depth of the channel at high witter is only 12 feet, and the draught of the I;lchoonor, as she was loaded, was Hi feet, this could be done only at or very near high water. On the passage up the river the schooner grounded Mid sustained injury. The accident seems to have occurred in this way: When the two vessels reached a point in the river opposite Gouch's wharf, the tide having then begun to fall, the tug slackened her speed, and passed a little to the south of what may be called the lowwater channel of the river, in order to avoid another vessel then lying moored to the northerly bank with an anchor out into the stream. Where the schooner passed the water had slightly diminished in depth, and her stern touched bottom and stuck fast. The bottom at this point, up and down the stream, was smooth and even; and if the schooner had been left in the position she was in when she tOllched,-that is, headed directly up the stream,-she would have rested, as the tide fell, evenly on the whole length of her keel, and in all
NELSON,

FEDERAL REPORTER.

probability would have suffered no injury. But the tug attempted to get her off by hauling her head round towards the northerly bank, and, not succeeding in accomplishing this, finally left her with her stern fast where it first touched, and her head projecting into the channel, where the water was slightly deeper. As the tide receded the schooner was left lying across the edge of the channel, where the bottom was sufficiently uneven to cause her to strain and break. It seems to me that this was negligence in the tug. The fault was not in the grounding of the schooner, but in the unwise measures taken to pull her off after she had grounded. It appeared that it is usual for vessels to lie aground in the river at this and other points, but always with the stream, in which direction the bottom is smooth and even, and never across the channel, as in this case. The tug was bound to know the nature of the bottom as well as the depth of. the water, and it was through her ignorance of both, or her carelessness, that the schooner was left in her position, where she was sure to sustain injury. It also appeared that the schooner was slightly injured in passing through one of the draw-bridges on her way up the river. The respondents admitted their liability for this injury, and it is to be included in the assessmeni of dam. ages. Interlocutory decree for libellant.

SULLIVAN, V. ANDOL

SULLIVAN

and others

ANDbE

and others.

'fOircuiteUourt. D. Maryland.

April 5. 1881.)

1. DECEDENT'S EsTATE-DisTRmUTIoN-F'RAUD. A bill in equity was filed by certain aliens, residing in Ireland, claim, ing. to be the next of kin of an intestate who 1,lad died in St. Louis, seeking to lIet aside a distribution of his M.rsonal estate made by his administrators under orders of the probatecoun of St. Louis. The proof showed that the distribution was procured' by fraud, and that the persons to whom the estate had been distributed were not the intestate's next of kin, and that the complainants were. Held, that the distribution of ,the probate cOlIrt having been procured by fraud, should be set aside and the fund brought into this court. 2. LUNATIC-PROCESS-SERVICE ON Co:MMITTEB. The only one of the persons to whom the estate had been distrib· uted, found within the distrkt, was' a lunatic, to whose cqmmittee one-fourth of the estate had been paid. bhe had been returned sum· moned by service on her committee, and he had apMared and fully answered. and on her behalf, with the of able counsel, had :esisted the claill).s of the taking testimony in Ireland and several of the United' States for over 'two years, the case came on for final hearing. The lunatic had'been for. about 30 years in an insane' asylum in the district, and had been found non compos by a jury, and so adjudged by a competent state court, which appointed her committee. Held, under the circumstances, that service of the subpama on the ,lunatic by service on committee was sufficient, and that the answer of the committee should be taken and treated as the answer of the lunatic.
   %!.
   LACHES.
   

Held, under the fllcts of the case, that the complainants had not lost their right to relief by delay.
·. DECEDENT'S EsTATE-ADMINISTRATION-PARTIES TO PROCEEDINGS-

Held, that the children of a brother of the intestate, who died aftel the intestate, could sue as complainants, and that administration'could he taken, after the fund Bought to be recovered. was brought· into court.
6. LUNATIC-FuND IN HANDll OF COMMITTEE-JURISDICTION.

Held, that the fund in the hands of the committee was not in the custody"and possession of the court which appointed him in sudq sense that no other court could adjudicate with regard to the title to it.

In Equity. Before BOND, and v.6,no.7-41

MORRIS,

JJ.