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offer on the part of the defendant to prove, under the plea of general denial, a violation of the contract sued on, by the plaintiffs, before the commencement of the suit; and a failure on their part to comply with its stipulations. This evidence was objected to by the plaintiffs, and excluded from the jury by the court. The general rule is that the allegations in the answer or plea and the proof must agree, and as there were no averments in the plea to author

reconvention to be stricken out, to which Wilcox excepted. This plea is authorized by the Louisiana Code of Practice, which was adopted by statute subsequent to the passage of the Act of Congress of the 26th of May, 1824, regulating the practice in the District Court of the United States for the Eastern District of Louisiana, and which at the time of the trial had not been adopted as a rule of practice of that court. It being a plea not authorized by the rules governing the practice of the court, itize the proof, it was properly rejected by the was properly stricken out.

Three other bills of exceptions were taken at the trial to the rulings of the court. By the first, it appears the plaintiffs offered to prove the signatures of the defendant Wilcox, and of the plaintiffs to the deed sued on. The defendant, Wilcox, objected to this evidence, because it appeared by the deed that there were two subscribing witnesses to it. But the court overruled the objection, and admitted the evidence upon the ground that as the deed was executed in the State of New York, it was fairly presumable that the subscribing witnesses resided there; and which was a sufficient reason for letting in secondary evidence to prove the

execution of the deed. When a contract is proved to have been made out of the State of Louisiana, having subscribing witnesses to it, the State courts presume that the witnesses reside at the place where the contract was made, and are not subject to the process of the court. They therefore allow secondary evidence to prove the execution of the contract. 7 Martin's Rep. N. S. 542; 8 Martin's Rep. N. S. 379, 12 Martin's Rep. 539. This being the settled doctrine of the Supreme Court of Louisiana, the court below very properly permitted the evidence to go to the jury.

But it is contended by the plaintiff's counsel here that the contract having been made in the State of New York, it ought, in all respects, to be governed by the laws of that State. There is a material difference between the laws of New York and those of Louisiana, in relation to the dignity of the instrument sued on in the court below. Contracts made before a notary and two witnesses, called authentic acts, are, by the laws of the latter State elevated above all others. A contract under seal does not appear to be of greater dignity there than one without seal. And those who sue in their courts must abide the consequences of these rules. The validity and interpretation of contracts are to be governed by the laws of the country where they are made; but the remedy must be according to the laws of the country where the suit is brought. 8 Peter's Rep. 361.

By the second of these bills of exceptions, it appears the plaintiffs offered to read the notes included in the deed of trust, as evidence of the amount of debt due from the defendant Wilcox; to which he objected, because they had not been assigned to the plaintiffs by the payees. The objection was overruled by the court, and 380*] the notes *read to the jury. If the action properly lay upon the deed of trust, to which there appears to have been no objection made, it was proper that the notes, which were included in the deed, and made a part of it, should have been read to the jury. The third and only remaining exception is, to the

court. From the best consideration we have been able to give to this case, it seems to us there is no error in the record and proceedings of the District Court.

The judgment is therefore affirmed with costs. This cause came on to be heard on the transcript of the record from the District Court of Louisiana, and was argued by counsel; on conthe United States for the Eastern District of sideration whereof, it is ordered and adjudged by this court that the judgment of the said District Court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum.

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The executor of L. filed his accounts in the Orphans' Court of Alexandria in 1816 and 1818, and settled his final account in 1821. No exceptions were taken to the accounts. In November, 1831, a subpoena was issued against the executor, and in June, 1833, a bill was filed by the devisee and legatee against the executor, the object of which was to surcharge and falsify the accounts filed and settled in the Orphans' Court. The bill did not charge the executor with fraud, but imputed negligence, which was alleged to amount to a devastavit. No reason was given or facts stated to excuse the long delay and laches in bringing the bill. Held, that the lapse of time from the settlement of the accounts of the executor was a bar to this proceeding.

Nothing is more clear than the general rule that ex-parte settlements of accounts by executors in the Orphans' Court, being matters within the acknowledged jurisdiction of the court in the administration of estates, are prima facie evidence of their correctness, and the onus probandi is upon those who seek to impeach them. If they seek to impeach them, it should be by a suit brought, recenti facto, within a reasonable time, and at farthest within the period prescribed by the statute of limitations for actions at law on matters of account; or else assign some ground of exception or disability within the analogy of the statute, justify or excuse the delay. Otherwise it will be Imputed to their voluntary laches, and relief will not be given by a court of equity.

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N appeal from the Circuit Court of the dria, in the District of Columbia.

A bill was filed on a subpoena which had issued from the Circuit Court on the fifth day of November, 1831, by Ann Lupton, the sole devisee and legatee of David Lupton, the younger, for the purpose of surcharging and falsifying the accounts of the executor, Phineas Janney, which had been settled in three accounts rendered by him to and allowed by the

Orphans' Court of Alexandria. The first account was rendered and was settled on the 26th of October, 1816. The second account was settled on the 16th of April, 1818, and on the 5th of January, 1821, the executor rendered and settled his final account. The bill of the complainant was filed on the 4th day of June, 1833.

The complainant alleged that the executor was chargeable with certain debts due to the estate of the testator, which he had failed to collect, and for goods of the estate sold by him, the amount of which sales had not been paid to him. Certain credits had been given in the accounts of the executor to parties not entitled to them; and, in an amended bill, facts are charged which amounted to a devastavit, which it was alleged were not satisfactorily contradicted by an amended answer. There was no imputation or charge of fraud in the executor, but it was asserted that gross negligence was to be imputed to the executor, for which he was answerable de bonis propriis.

The answers of the defendant denied all the allegations in the complainant's bill, material to charge him as executor of David Lupton, the younger.

382*] *The defendant also pleaded in his answer, an amended answer, as follows:

on weighing the circumstances, to say if they will grant or deny the relief. There is not and there cannot be in the mere lapse of time a peremptory bar, where no express statute of limitations governs the case. In discouraging stale demands for the peace of society, courts of equity have established a necessary rule, but that necessary rule is still a plastic one, suitable to cases as courts may judge it proper, the necessity of its application depending on many circumstances extrinsic and independent of the lapse of time. Thus equity will not close its doors in favor of a fraud, though time may have long passed since it was committed. Where an executor's or administrator's accounts have been settled in the proper court, ex-parte, without notice to legatees or parties in distribution, the time within which a bill surcharge and falsify will be enter- [*383 tained, is extended. Whether the original parties to the transactions sought to be opened be alive or dead, is another material consideration; in the former case the remedial functions of the Chancellor being more easy, and in the latter case, less easy of access.

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Notwithstanding, however, the pliability of the rule, and its adaptation to cases according to their exigency and inherent equity, the courts have, in many cases where there were "This respondent admits that the complain- no rebutting circumstances of presumption, inant was not present at, nor summoned to at-timated, if not expressly fixed, a terminus to tend the said settlements. But he is advised this lapse of time. Thus they will in general and avers that the said settlements were legally presume the payment of a bond, the extinguishmade before a court having full jurisdiction in ment of a trust, and the surrender of a deed, the matter, in the due and regular exercise of after an acquiescence of twenty years by the its jurisdiction; and the respondent relies on parties in interest. A mortgage will be prethe said settlements in bar of the jurisdiction sumed discharged after the same lapse of time, of this court, as a court of original jurisdiction, and an adverse possession of twenty years will in the case stated by the complainant, in the bar a bill in equity for the conveyance of the same manner as if the same were specially legal title. Yet even this rule, if rule it strictpleaded." ly be, is not inflexible. Courts frequently step beyond its limits, in cases where an obvious equity invokes its exception.

Also, "This respondent is advised that an Act of the General Assembly of the State of Virginia, passed the 8th day of March, 1826, entitled 'An Act for the limitation of actions against persons acting in a fiduciary character, and their sureties, and other purposes,' is a complete bar to any proceedings against him in that State, and was so when the said amended bill was filed."

In November, 1838, the Circuit Court made a decree dismissing the complainant's bill, from which decree this appeal was prosecuted. The case was argued by Mr. Semmes for the appellant, and by Mr. Jones, with whom was Mr. Coxe, for the appellee.

Mr. Semmes argued the cause on all the matters contained in the bill; but the court having decided the case on the limitation imposed by time on the complainant's right to recover, the argument on the point decided is alone given. Mr. Semmes, for the appellant:

In reference to the ground of defense assumed in the amended answer-that the lapse of time intervening between the settlement of the respondent's accounts and the institution of this suit is a bar to any decree for opening those accounts-it may be observed that the general rule under which equity denies a stale demand is not indiscriminate or universal in its application; time is not alone sufficient. Every case is to be decided on its own basis, and it is in the sound discretion of the court,

Should this rule apply to the case at bar? The appellant shows that at the time these accounts were settled in the Orphans' Court, she resided out of the jurisdiction of the courts in the District of Columbia; that she was the sole legatee of her husband the testator; that the executor whom she now seeks to charge was a brother-in-law of the testator, and that she had unbounded confidence in him; that his executorial accounts were all settled ex-parte, and without notice of any kind to her. She shows acts of gross omission to collect debts, and culpable negligence on the part of the executor amounting to a devastavit. She shows that he has lost from ten to fifteen thousand dollars to her husband's estate by his neglect. More. over, the original parties are all alive the appellant, the legatee, and cestui que trust, and the appellee, the executor, and trustee. The lapse of time, from the settlement of the final account to the issue of the subpoena, is ten years and ten months-to the filing of the bill about twelve years. The lapse of time, from the devastavit charged to the filing of the bill, is about sixteen years.

It is not necessary to cite authorities in regard to the defense against stale demands, nor to show the various modifications that doctrine has undergone in its application to different cases. One or two cases from Virginia may,

however, be quoted, as ruling the present question. The courts of that State allow an executor's accounts to be opened after a much greater lapse of time than twenty years, and even after the death of the original parties. In Burwell's Executors v. Anderson's Administrators, etc., 3 Leigh, 348, the court held lapse of time no bar, though thirty-one years had passed since the first testator's death. The executor of the distributee of the testator's widow was allowed to file his bill against the representatives of the executor of the first testator, surcharging and falsifying the accounts which had been settled, after a lapse of thirty-one years, and time was held no bar. The cases of 384*] Hudson et al. v. Hudson's Executor, 3 Rand. 117, and Todd et ux. v. Moore's Administrator, 1 Leigh, 457, though the relief prayed was denied under the peculiar circumstances, establish the general principle for which we contend.

All the matters set up in the complainant's bill were proper for examination on exceptions to the accounts of the executor in the Orphans' Court; and will the court, after twelve years of silence, allow a party-passing by the Orphans' Court, and neglecting to use the means of redress which that court would have afforded for any misfeasance or omissions of the executorto come into the Circuit Court by an original bill, and set up these matters? When a technical devastavit is charged against an [*385 executor, without an allegation of fraud, it is a tort, and there is a limitation. This is not claimed to be the rule in cases of fraud. The court declined hearing Mr. Coxe for the appellee.

Mr. Justice Story delivered the opinion of the court:

This is a case of an appeal from a decree of the Circuit Court of the County of Alexandria, Mr. Jones, for the appellee, contended that dismissing a bill in equity brought by the apeven if the matter of the bill came at all with- pellant, Ann Lupton, the widow and devisee of in the cognizance of the Circuit Court for orig. the testator, David Lupton. The bill was first inal relief in equity, yet neither the bill itself, filed in June, 1833, although a subpoena was nor anything disclosed in the progress of the issued in November, 1831, and it seeks to open cause lays any sufficient foundation for the in- the accounts of the administration, upon the terference of equity in the matter; but, on the allegation of certain errors and omissions therecontrary, all the pretenses for charging the ex- in, as they were settled in three successive acecutor by surcharging and falsifying the past counts of the executor, rendered ex-parte, and settlement in the Orphans' Court, are strictis allowed in the Orphans' Court of Alexandria, simi juris, at best; and it is positively uncon- in October, 1816; in April, 1818; and in Januscientious and inequitable for the complainant ary, 1821. The bill charges, among other to set up after her long acquiescence, with things, that the estate was charged by the execactual notice and knowledge of the circum-utor with the payment of a supposed debt of stances that give color to the principal objec-$4,459.43, to one Peter Saunders, without any tions now raised against the past settlement.

2. That far less than the actual length of time during which she implicitly acquiesced in the settlement before she filed her bill, would, under the circumstances of the case, have presented a positive bar in equity to charges against the executor, so strictly penal in their grounds and their consequences, calling for forfeiture rather than restitution; and so entirely clear of all imputation of fraud, as those upon which alone she has founded her claims.

sufficient or legal evidence that it was in fact due. It also charges that the executor omitted to collect of John M'Pherson & Son a debt due to the estate of $4,083.50, upon their note, and also specifies certain credits which have been omitted to be given by the executor; and contains a general allegation that other debts have been lost to the estate by the negligence of the executor. The prayer of the bill is in effect to open the accounts, with general liberty to surcharge and falsify. There is no charge The settlements in the Orphans' Court, made in the bill that the executor has been guilty of by the executor, are prima facie evidence of any fraud, nor any reason given, nor facts their correctness. This is on the supposition stated, to excuse the long delay and laches in that the parties interested in them had notice bringing the bill. The answer denies all of the settlements. If they had not notice, or it equity, and insists upon the correctness of the was not supposed they had had notice, the ac- accounts as settled, and contains a full explacounts would not have been allowed to be filed. nation, in reply to the specific charges of the There was notice. The time of settlement of bill. It also relies on the settlement of the acthe accounts of an executor is fixed and limit-counts in the Orphans' Court, and the lapse of ed. This is sufficient to show that every one who had an interest in the accounts had a knowledge of them, or might have known of their having been filed. At all times the accounts were open to the inspection of anyone who might think proper to examine them.

Sixteen and a half years from the settlement of the first account, and twelve and a half from the filing of the final account, had elapsed before the bill in this case was exhibited. While it is admitted that as to persons acting in a fiduciary character there is no limitation in cases of fraud, this principle does not apply when no fraud is charged; and none is charged or imputed in this case. It is contended that after a reasonable time, the settlement in the Orphans' Court, by the executor, is a bar.

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time, as a bar to the suit.

The opinion which we have formed upon this last point renders it wholly unnecessary for us to consider several others which have been discussed at the bar; and especially the objection that the Orphans' Court has exclusive jurisdiction over the matters in controversy. We place this case wholly upon the ground of the lapse of time since the accounts were settled in the Orphans' Court, a period from twelve to sixteen years before the filing of the bill; the total omission of the bill to state any facts or circumstances to account for or excuse this long delay; and the absence of any suggestion of fraud in the settlements. Nothing is more clear than the general rule that ex-parte settlements of accounts of this

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stranded vessel, exists also as to her rigging and sails, which he may have stripped from her, after unsuccessful efforts to get her afloat, or when the vessel in his own judgment, and that of those competent to form an opinion and to advise, cannot be delivered from her peril.

If the master sells without good faith, or without a sound discretion, the owner may, against the purchaser, assert his right of property in the sails and rigging; as he may in the case of a stranded vessel, which has been sold without good faith in the master.

The court do not think the case of Smith v. Briddle, 2 Washington C. C. R. 150, sound law. It is expressed in terms too broad.

sort, in the Orphans' Court, being matters within the acknowledged jurisdiction of the court in the administration of estates, are prima facie evidence of their own verity and correctness; and the onus probandi is upon those who seek to impeach them. If they seek to impeach them, it should be by a suit brought recenti 386] facto, within a reasonable time; *and at furthest, within the period prescribed by the statute of limitations for actions at law upon matters of account; or else to assign some ground of exception or disability, within the analogy of the statute, to justify or excuse the delay. Otherwise it will be imputed Aed States for the District of Massachu to their own voluntary laches, and courts of equity are never active in lending their aid to stale and neglected claims, for the known maxim of such courts is, vigilantibus, non dormientibus leges subveniunt. We do not deem it necessary to refer to any authorities on this point, as it has been so long and so fully recognized in this court; and upon this short ground, we are all of opinion that the decree of the Circuit Court dismissing the bill ought

to be affirmed with costs.

This cause came on to be heard on the trans

script of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Alexandria, and was argued by counsel; on consideration whereof, it is ordered and decreed by this court that the decree of the said Circuit Court in this cause be, and the same is hereby af

firmed with costs.

387°]

PPEAL from the Circuit Court of the Unit

setts.

In September, 1834, in the District Court of the United States for the District of Massachusetts, the New England Insurance Company filed a libel stating that they were the true owners of the brig Sarah Ann, then in the district of Massachusetts, and in the possession of Obadiah Woodbury and others, claiming to be the owners of the said brig, and who are about to carry her to sea without the consent

of the libelants.

A summons was issued to Obadiah Wood

bury and others, commanding them to appear and show cause why process should not issue against the brig, as prayed for in the libel; and they appeared, and gave stipulations to abide by the final decree of the court, on an appeal, and put in an answer to the libel.

The case was proceeded in by the libelants and the respondents in the District Court, and after testimony had been taken to the matters in controversy, a pro forma decree for the respondents, dismissing the libel, was given by

"THE NEW ENGLAND INSUR- the district judge, by the consent of the coun

ANCE COMPANY,

V.

THE BRIG SARAH ANN,
Woodbury et al., Claimants.

Power of master to sell stranded vessel.

The right of the master to sell a vessel stranded, depends on the circumstances under which it is done to justify it. The master must act in good faith, and exercise his best discretion for the beneat of all concerned; and a sale can only be made on the compulsion of a necessity, to be determined in each case by the actual peril to which the vessel is exposed, and from which it is probable, in the opinion of persons competent to judge, the vessel cannot be saved. This is an extreme necessity. The true criterion for determining the authority of the master to sell a vessel stranded near a foreign port, or in a port of the United States, or of a different State than that to which the vessel belongs, or in which the owners may be or reside when the necessity occurs, is the distance of the owners or insurers from the scene of stranding. If by the ordinary means to convey intelligence of the situation of the vessel the master can obtain directions as to what he should do, he should resort to those means. But if the peril is such that there is a probability of loss, and it is made more hazardous by every day's delay, the master may act promptly to save something for the benefit of all concerned, though but little can be saved. There is no way of doing so more effectual than by exposing the vessel to sale; by which the enterprise of such men is brought into competition as are accustomed to encounter such risks, and who know from experience how to estimate the probable profits of such adventures.

The power of the master to sell the hull of the

NOTE-Power of master to sell vessel, see note

to 15 L. ed. U. S. 618.

sel of both parties; and the libelants appealed to the Circuit Court of the United States for the District of Massachusetts.

Further evidence was taken in the Circuít Court by the appellants, and the defendants, and at May Term, 1835, the Circuit Court gave *a decree in favor of the defendants [*388 from which the New England Insurance Company prosecuted this appeal.

The facts of the case were as follows: On the first day of March, 1828, the appellants, at Boston, underwrote a policy of insurance on the brig Sarah Ann, valued at four thousand dollars, in port, and at sea, during the term of one year, from the 22d of February, 1828. On the 25th of March, 1828, the brig was stranded on the shore of the island of Nantucket, and on the following day an abandonment was made by the owners for a total loss by the perils of the sea. The abandonment was expressly refused by the assurers, but it was not withdrawn by the owners of the vessel; and on the third of October, 1828, a compromise was made between them and the assurers, and all the right and title of the assurers in the brig was assigned to the appellants. The claimants of the brig, the appellees, asserted a title derived under a sale made by the master after the stranding, on the ground of an absolute necessity for such a sale.

In May, 1828, the brig was brought into Boston, after having been gotten off from the shore at Nantucket, and having been repaired. The repairs of the brig, and her cost at the sale

213

made by the master, amounted to twenty-four hundred and ninety-four dollars and sixtyseven cents, and she was sold in Boston, in July, 1828, for $2,736.41. On the 14th of May, 1828, the president of the insurance company wrote to the agent of the former owners of the brig, the assured, stating that the brig was then in Boston, and saying, "As she is now within your own control, as agent for the owners, if you do not take possession of her in their behalf, the company must consider the sale of her at Nantucket as affirmed by them; and that she is sold for their account. We, of course, shall contest the validity of the sale as it regards ourselves, and we think the own ers ought to contest it themselves."

At this time the title to the brig was in contest between the assured and the assurers. The abandonment was denied to be good, and neither party was in a situation to assert a title without compromitting rights then actually in contestation. There were no allegations or proofs in the cause that after the final acceptance of the abandonment, in October, 1828, the brig had been within the ports of Massachu setts, and within the reach of the process of the court for a reasonable time, within the knowledge of the appellants.

was stranded on the southwest side of the is

master, at public auction where she lay, for $127; at the same time the spars, sails, and rigging were sold for $422.40. No efforts appeared to have been made to get the brig off the shore, though she had not then sustained any serious injury. Three intelligent surveyors, at a subsequent period, estimated the repairs of her hull as not exceeding $492.25. The brig was got off by the purchasers soon after the sale, and was carried to the port of Nantucket and there repaired. The whole cost of the brig to the purchasers including the repairs, and outfits to Boston, was represented to have been, $2,494.67; and she was sold under the order of the purchasers, as stated, at Boston, in July, 1828, for $2,736.41."

The case was submitted to the court, on printed arguments, by Mr. Pickering for the appellants, and by Mr. Saltonstall for the appellees.

The argument for the appellants stated:

The appellants contend that this case was not such as to require or justify a sale of the vessel by the master, upon the alleged ground of necessity, as the owners' agent and the underwriters were in Boston, and there was an easy and regular communication by mail between Boston and the island of Nantucket, where the vessel was ashore; and they might and ought to have been consulted by the master before making such sale.

In cases resting upon the same principles, for example, hypothecation by the master in cases of necessity, the rule laid down by the English courts is that the master can hypothecate only when the vessel is in some other an English port. No English place than *case, it is believed, can be found, in [390 which the master has been authorized to do it

The facts of the case, as stated in the protest, and as detailed in the decree of Mr. Justice Story, in the Circuit Court (2 Sumner, 213), were: "The brig having on board a cargo of rice and cotton, sailed on a voyage from Savannah for Boston, and on the 23d of March, 1828, land of Nantucket. On the next day assistance was obtained from the shore, and the anchors were got out and hove tight, in order to start the vessel, but without success. In the course of the forenoon the wreck master came on board, with twenty men, and pursuant to his while in England; the English writers condirections, the deck load was thrown over-sider that every port in England is a home 389*] board. They then hove the cables again, but with no beneficial effect. They then proceeded to open the hatches and discharge the cargo from the hold; and then hove out the cables again, but to no purpose, as the tide had fallen, and there was a considerable surf rolling

in shore.

The captain and crew remained on board that night, and the day following nothing could be done, as the wind blew strong at the southeast, and there was a heavy surf. After the weather moderated, the cargo was, with great difficulty, got on shore. The protest stated that the wind and the surf of the sea had driven the brig so far on shore as to render it impossible to get her off.

It further appeared from the evidence that the place where the brig was stranded was on a sandy beach, about twelve miles distant by sea, and six miles by land, from the town of Nantucket; and that the brig was at no time high and dry there. The depth of the water about her varied; sometimes it was six feet, and sometimes it was ten feet, and she was at no time of tide out of water. The cargo was discharged in about five days, and the spars, sails, and rigging were then stripped off and carried on shore, and sold in small lots to the highest bidder. After the cargo was sold, the brig became loose in the sand, and slewed round, and lay with her broad-side to the shore. She was sold on the 28th of March, by the

214

port, and the residence of the English owner.

The learned author (Abbott on Shipping, 123) adds that Ireland has been held to be a foreign country, but that since the union it is doubtful whether the rule is not altered. See, also, the case of The Lavinia, Barclay, before Mr. Justice Washington, 1 Wash. C. C. R. 49. So in cases of the lien of material men, the courts of the United States have held that when a vessel was repaired in a port of a State to which she did not belong, there was a lien by the general marine law; but if the repairs were made in her own State, there was no lien, unless established by the local laws of such State. The General Smith, 4 Wheat. 438; 4 Peters's Cond. Rep. 439.

As to the necessity of the sale, generally, it is a prominent fact that the vessel was got off very soon after she was sold on the sandy shore, which was a smooth beach without any rocks, and she was immediately repaired and fitted for sea again.

The brig Pearl, 2 Sumner's Rep. 217, to which the Circuit Court alludes in giving the opinion of the case at the bar, was stranded nearly in the same place with the Sarah Ann, and lay there through the winter, and was got off in the following spring. Several other vessels which went ashore on the same island have been got off, as appears by the depositions in the case.

Peters 18.

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