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The Schooner F. Merwin.

823 provides: "The following and no other compensation shall be taxed and allowed to attorneys

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marshals

except in cases otherwise expressly provided by law." Section 829 regulates the fees of the marshal, and contains the following clause: "For the necessary expenses of keeping boats, vessels, or other property attached or libelled in admiralty, not exceeding two dollars and fifty cents a day." It is insisted that this charge for wharfage is to be deemed a charge for an "expense of keeping" the vessel. Section 823 refers in terms only to compensation, and not to expenses or disbursements of the officer, incurred by him in the discharge of his duties. Section 829, however, does restrict, within certain limits, many of those items or kinds of expense and disbursements which the officer is likely to incur in the performance of his duty, and actual disbursements beyond those limits must, of course, be disallowed, where they fall within the description of the kind of expenses thus limited; but as to expenses and disbursements not provided for in section 829, and necessarily incurred by the marshal in the performance of the duties of his office, I see nothing in either section to forbid his being reimbursed such expenses as without any legislation and upon general principles of law he would be entitled to, as for money paid out at the request and for the use of another. It appears to me that the "expense of keeping," here referred to, is the expense which the marshal is put to in maintaining the actual custody of the vessel under his process, and that what he may have to pay for "wharfage" or the use of a berth for her to lie in, in safety, is not properly to be considered such an expense. The marshal as the actual custodian of the vessel, especially if the owner or master leaves her, would be bound to use reasonable efforts to protect the vessel from danger, while in his custody, as, for instance, to move her in

The United States v. The Union National Bank.

case of fire, or to use proper endeavors to put out a fire. No express provision is made for his taxing such disbursements, but I think that such disbursements may properly be taxed, if reasonable in amount and necessarily incurred; and wharfage belongs rather to this class of expenses than to the expense of "keeping" the vessel. This and the other small items in the marshal's bill are properly allowable, if duly vouched for.

Let the costs be re-taxed in conformity with this opinion.

For libellant, W. R. Darling.

For claimants, R. H. Huntley.

APRIL, 1879.

THE UNITED STATES vs. THE UNION NATIONAL

BANK.*

MONEY PAID UNDER A MISTAKE OF FACT.-LACHES. -THE UNITED STATES AS PLAINTIFF.

A party entitled to recover money, paid under a mistake of fact, is bound to give prompt notice of the discovery of the mistake to the party to whom the money was paid.

Where the party to whom money is so paid, sustains damage in the loss of his remedy over against another party, through the negligence of the party to whom he is liable in failing to give notice of the discovery of the mistake, he is thereby discharged from liability.

*This case affirmed on writ of error to the Circuit Court.

The United States v. The Union National Bank.

The action being equitable, the United States suing as plaintiff in such action is bound by the same equitable rules as any other plaintiff in such an action and cannot recover, if through its failure to give notice of the discovery of the mistake the defendant has lost his remedy over.

In such an action by the United States, where it appeared that the Assistant Treasurer at New York gave notice of the discovery of the mistake, and demanded payment, but afterwards withdrew the notice and demand: Held, That assuming that he was the proper officer to give such notice he was the proper person to withdraw it, and the defendant having relied on such withdrawal and thereby lost his remedy over was discharged from liability.

CHOATE, J. This is a motion for a new trial for error of law in directing a verdict for the defendant. It was not attempted on the argument to sustain the action, except as an action for money paid under a mistake of fact. Assuming that all the elements of such a cause of action once existed, a question which it is unnecessary now to examine, yet I see no reason why the United States should be exempted from the general rule applicable to any other party who is entitled to maintain such an action, that they shall not, by their delay after the discovery of the mistake, lead the party liable to them into further loss, as, for instance, the loss of a remedy over against another party. This is an equitable action and the plaintiff can only recover on showing that it is equitably entitled to the money. The duty of promptly notifying the defendant on discovery of the mistake, is conceded by the plaintiff's counsel; but it is claimed that the notice from the sub-treasurer was a performance of this duty. The discovery by the United States of the alleged mistake before that notice was given cannot, I think, be denied. Assuming that the sub-treasurer was the proper person to give the notice, and demand payment of the defendant, he was also the proper party to withdraw that notice, and I think it is clear that what took place after the notice

The Bark Innocenta.

was given, was equivalent to a withdrawal of the notice, on which the bank had a right to rely, and did rely, until it lost all remedy over against Polhemus and Jackson; and after that, only, was the claim renewed by commencement of this action. I think this is a claim in respect to which laches may be imputed to the United States, and that on the ground of laches and entire want of equity in the claim on the undisputed facts, the direction of a verdict for the defendant was right. (See United States v. Jay Cooke, 5 Amer. L. T. 166.)

Motion denied.

For motion, Assistant U. S. District Attorney S. Tenney.
For defendant, Geo. De Forest Lord.

APRIL, 1879.

THE BARK INNOCENTA.

DELAY IN RECEIVING CARGO.-CONTRACT. EVIDENCE OF CUSTOM.

A freight broker engaged for a bark 100 tons of oak logs and 100 tons of other timber. The freight contract, which was in writing, said nothing about the time to be occupied in the receipt of the cargo, or the manner in which it was to be delivered to the ship. On the day after the contract was made the shipper of the timber notified the agent of the ship that the wood was heavy timber, and that the bark should be ready with corresponding tackle to take it "off the lighters" as soon as they arrived. The timber was sent alongside in lighters. and, owing to the smallness of the bark's hatch, and the contracted space between decks, though reasonable diligence was used

The Bark Innocenta.

in taking the timber on board, the lighters were detained alongside several days. The shipper filed a libel against the bark to recover the amount of the demurrage of the lighters, claiming that the cargo was agreed to be received from lighters in the customary time, and that by the custom of the port of New York, two days only were allowed for that purpose:

Held, That, as the contract did not say that the wood was to be received from lighters, the shipper could not, by his notice, impose any new terms on the bark;

That the shipper had the right to deliver the wood alongside in what way he pleased, and it then became the duty of the bark to receive it;

That the alleged custom to receive cargo from a lighter in two days, was not proved by evidence of the adoption by "The New York Produce Exchange" of a rule to that effect, such association having no power by their rules to make a custom binding in the port of New York;

That no unnecessary delay or negligence on the part of the bark in receiving the wood had been shown, and that the libel must be dismissed.

CHOATE, J. This is a libel brought by the shipper of cargo against the vessel for the sum of one hundred and twenty dollars, which is described in the libel as "demurrage of lighters." The cargo was heavy oak and black walnut timber. The libel alleges that on the 1st day of March, 1877, the agents of the vessel contracted and engaged with the libellant that the vessel should take and receive on board at New York to be carried to London, about 200 tons measurement of timber; that, by the terms of the contract, the timber was to be delivered and loaded on board of the vessel from lighters to be furnished by libellant, and that such delivery should be completed within the usual and customary time, after the lighters should be moored alongside the vessel and be in readiness for such delivery and loading; that the usual and customary time required in similar cases is two days, by the custom of the port of New York; that the lighters were delayed beyond that time by the slow, tedious and irregular way in which the vessel received the timber, and for this delay the libellant demands damages at the rate

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