The United States v. A Quantity of Manufactured Tobacco.

moves that the execution be set aside. If the surety showed any meritorious grounds on which if the default were opened he could be relieved, it would be proper to grant the motion to open the default, as it appears that he had no notice in fact. There was no irregularity in serving the notice on the substituted proctors for claimants. They were the proper persons to receive the notice. The surety so understood it himself, as is shown by the arrangement made with them for notice from them to him.

The only grounds on which upon the merits the surety claims to be relieved are: first, that the plaintiff by taking the bonds of the claimant without sureties on the appeals discharged the sureties in the stipulation; secondly, that the qualified consent or acceptance endorsed by the District Attorney on the bond given on error to the Circuit Court discharged the sureties in the stipulation; and thirdly, that the giving by the claimant to the plaintiff of $75,000 in government bonds as further security after the execution of the stipulation, which further security it is alleged was exacted by the plaintiffs as a condition to their giving their consent to the claimant's continuing his business, discharged the sureties in the stipulation.

As to the first and second grounds it is clear that the bonds taken complied with the statute, which provides that " every justice or judge signing a citation or any writ of error, shall, except, etc., take good and sufficient security." Rev. Stat. §1000. The question of the sufficiency of the security must be determined by the judge. (Brockett v. Brockett, 2 How. 258.) There is no statute requiring one or more sureties if the bond offered is approved as sufficient. And if the bond is approved as sufficient it is immaterial that the District Attorney may have assented to it, or may have given a qualified or restricted assent.

The United States v. A Quantity of Manufactured Tobacco.

The position taken by Olwell is that by taking bonds without sureties and bonds thus assented to by the District Attorney without his (Olwell's) assent, the terms of the undertaking in which he was bound as surety were altered, or at least that there was an implied covenant on the part of the United States with him that they would not take any proceedings with the principal which would increase the risks of the sureties or affect their remedy against the principal; that when Olwell entered into the stipulation for value it contemplated that he must pay when the District Court rendered judgment of condemnation, or when the Appellate Court so ordered, if any appeal intervened;-that the appeal contemplated was the usual appeal with the usual security to stay the judgment, if there should be a stay, as provided for under existing laws; that it contemplated the giving of bonds on appeal with sufficient sureties, whose obligations would enure to the benefit of the sureties in the stipulation given below as between them and the principal.

If the petitioner were entirely correct in his view of the rights of the surety as to the implied covenant that the bond on appeal should be a proper bond according to existing law, it is entirely clear that the appeal was in the usual form and the security taken on appeal was such as existing laws provided for. It is not necessary therefore to consider whether the mere neglect of the government to enforce the decree below pending the appeals would have discharged the surety if it had appeared that one of the bonds given on appeal had been defective and such as would not operate as a supersedeas.

As to the alleged deposit of bonds, if it was made and the bonds were afterwards stolen, as the affidavits tend to show, it is not perceived that the deposit or the loss of the bonds can

In the Matter of the Petition of John G. Wright et al.

have had any effect upon the obligation of the sureties in this stipulation.

Motion denied.

For petitioner, D. McMahon.

For the U. S., Asst. Dist. Atty. Hill.

JUNE, 1878.

IN THE MATTER OF THE PETITION OF JOHN G. WRIGHT ET AL.

LIMITATION OF LIABILITY OF SHIP-OWNERS.-VESSEL REPAIRED AFTER COLLISION. FREIGHT.-SAILING ON SHARes.

A collision occurred between two schooners, the S. and the A. T. on May 6, 1878. On the 11th of June, 1878, the owners of the S. filed a libel against the A. T. to recover their damages. The A. T. had been in the meantime repaired. On the 14th of June her owners filed a petition to limit their liability. A reference was had to fix her value, and the commissioner reported that her value after the collision was $500, and that the interest of the owners in her pending freight was $139.25, and the owners of the S. excepted to the report :

Held, That the value, to which the liability of the owners of the A. T. would be limited, was the value of the vessel after the collision and before she was repaired; that, as the vessel was sailed on shares by a master who was not an owner, the interest of the owners in the freight was one-half of it after deducting port charges, which the commissioner had reported; That the exceptions must be overruled.

CHOATE, J. The petitioners are the owners of the schooner Adeline Townsend. June 11, 1878, the schooner was attached and a libel brought by the owners of cargo of the

In the Matter of the Petition of John G. Wright et al.

schooner Sophia Wilson, for damage sustained in consequence of a collision between that vessel and the Adeline Townsend, alleged to have been caused by the fault of the Adeline Townsend. June 14, 1878, the petitioners filed their petition, to obtain the benefit of the Act of 1851, limiting the liability of ship owners. (Rev. Stat. § 4283, et seq.)

The collision happened on the 6th of May, 1878. The Townsend was badly injured, and afterwards and before she was so attached she was repaired by the petitioners.

A reference was ordered to ascertain and report the value of the Townsend after the collision, and the interest of her owners in her pending freight. The commissioner has reported that the value of the vessel after the collision was $500, and the interest of the owners in her pending freight was $139.25. To this report the libellants have excepted as to the value of the vessel, claiming that the Act, limiting the liability of the owners, limits their personal liability only, and does not limit or impair the remedy which parties may have against the vessel; that therefore, if the owners repair after the collision, the lien for the damages still attaches to the vessel; and that they are entitled to have her valued as she is at the time of the attachment.

It is well settled that the value, which is the measure of the owners' liability, is the value of the vessel immediately after the collision. (Norwich Co. v. Wright, 13 Wall. 104.) Whenever, therefore, under the statute and the rules made for carrying it into effect, the owners apply in proper form to have this limit of their liability determined, it must be fixed by the measure of the value of the vessel just after the collision. When this value is so determined and the amount secured in due form or paid into court, all pending actions whether in personam or in rem are to cease and be stayed. This claim

In the Matter of the Petition of John G. Wright et al.

of the libellants has no support either in the statute, the rules or the decisions under them.

There is also no equity in their claim. The additional value, which the owners have put upon the vessel by repairing her, constituted no part of her at the time the damage was sustained. To allow this claim would seriously embarrass owners of vessels against which a claim for damage might be made. They could not safely repair till a libel was brought, and yet they could not compel the bringing of a libel. It is obvious that this would seriously impair the value of their property and prevent the use of it. But clearly the Act fixes a liability, whether the injured party seeks to enforce it in personam or in rem, measured by the value at a time certain and not a shifting and moveable value.

The libellants also except to the report of the commissioner as to the freight. The vessel was sailed by the master, who was not one of the owners, on half shares. The interest of the owners in the freight was one-half of the freight after deducting port charges, and so the commissioner has found.

Report confirmed.

For petitioner, E. L. Owen.

For libellants, Coudert Bros.