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that an owner of a vessel, who is not also the master, may create an implied lien on her for supplies, is a modern one, confined to the United States, and not a part of the maritime law. This is historically well known, and it is also stated by so eminent an authority as Fland. Mar. Law, § 241. Mr. Flanders understood this proposition to be supported by the opinion of Mr. Justice Johnson in The St. Jago de Cuba, 9 Wheat. 409, 416, 6 L. Ed. 122. The fact that the owner may hypothecate a vessel by an implied lien, without bottomry, must be regarded as established in the United States by The Grapeshot, 9 Wall. 129, 19 L. Ed. 651; The Guy, 9 Wall. 758, 19 L. Ed. 710; and The Kalorama, 10 Wall. 204, 214, 19 L. Ed. The rule has been recognized in other cases, but it originated with those to which we have referred. It happens that, as the rule was developed, no proper distinctions or limitations have been given concerning it, except those explained by the cxtracts we have made from The Iris, and there shown to have been fully sustained by the supreme court.

In the case of supplies and repairs ordered by a master in a foreign port, their necesssity being shown, everything else is presumed prima facie in favor of a lien, and the burden is thrown on whomsoever disputes its validity; but, with reference to supplies ordered by the owner, it is difficult to say what the presumptions are. At one stage of the maritime law, it seems to have been understood that the owner might bottomry a vessel under circumstances which would make the bottomry valid although there were no maritime necessity therefor. Fland. Mar. Law, § 251. If such were the law. it might follow that, by a clear understanding, the owner might in like manner impress the vessel with an implied lien, although there were no maritime necessity therefor. On that hypothesis, there could be no inquiry, when repairs or supplies are ordered by the owner, whether a credit to the vessel was requisite. The true rule, however, undoubtedly is, with reference to implied liens created by the owner, as well as to express liens created by him, in the form of bottomry or respondentia, that there must be a maritime necessity. This implies both a need of repairs or supplies, and a reasonable impracticability of obtaining the same on the credit of the owner. The law is thus stated in the last edition of Abbott's Law of Merchant Shipping (London, 1892) 165. In The Kalorama, at page 214, 10 Wall., and at page 944. 19 L. Ed., this is also implied by the observation that, "undoubtedly, the presence of the owner defeats the implied authority of the master; but the presence of the owner would not destroy such credit as is necessary to furnish food to the mariners, and save the vessel and cargo from the perils of the seas." We think, therefore, that there can be no question that both the petitioner and the respondent correctly understood the law when they alleged on the one part, and denied on the other, that the coal could not have been obtained except on the credit of the vessels. This would leave only the question whether the same presumption as to the need of credit, the claimant having shown the necesssity of the repairs or supplies, arises when obtained on the order of the owner as when obtained on the order

of the master; but, as we have already stated, we are not disturbed by this, because the case shows that the Ogdensburg Transit Company had sufficient credit.

This leaves nothing remaining to be considered except the Ohio statute. In The Iris, we were careful to limit the case to the application of a state statute to a domestic vessel. Nowhere has it ever been said that a state statute is valid to alter the conditions as to maritime liens, with reference to supplies and repairs furnished vessels in foreign ports, as to which a complete set of rules has been framed by the federal courts. Whether or not an attempt of that nature would amount to a regulation of commerce, and therefore be unconstitutional, was expressly left open in The Kate, 164 U. S. 458, 471, 17 Sup. Ct. 135, 41 L. Ed. 512. A rule of construction, however, was given in The Kate which is sufficient to lead us to a conclusion with reference to the statute now in question, to the effect that we ought to restrict it to domestic vessels, as to which no other remedy exists than that given by it. It was observed that this statute originated when it was questionable whether the federal courts would exercise admiralty jurisdiction over the Lakes. If it had been finally determined that they would not, the statute might, perhaps, have had a broader range; but, as the law has been developed, we see no justification therefor. However, we can easily dispose of the case, so far as this statute is concerned, without absolutely determining its construction; because, as we said in The Iris, 40 C. C. A. 301, 100 Fed. 104, 110, even when the statute prima facie gives a lien, "the circumstances may be such, for example, when the supplies are furnished on a general account, as to show that the parties intended that credit should be given solely to the purchaser." Such is the condition of this case. With reference to this statute, our conclusions are practically the same as those of the circuit court of appeals for the Second circuit, in The Electron, 21 C. C. A. 12, 74 Fed. 689, 693, so far as that court had under consideration the application to foreign vessels of a state statute, attempting to give liens for repairs or supplies.

The decree of the circuit court is affirmed, and the costs of the appeal are awarded to the appellees.

WEBB, District Judge. I am unable to concur with the majority of the court in the disposition of this cause. In my opinion, the exceptions to the master's report should have been overruled, the report confirmed, and a decree upholding the liens entered in favor of the petitioners.

(113 Fed. 463.)


(Circuit Court of Appeals, Eighth Circuit. December 2, 1901.)


A court of equity is not justified in issuing a preliminary injunction or restraining order by the mere fact that it will do no harm, but there must be some affirmative ground shown calling for the exercise of the jurisdiction.

2. JUDGMENTS-SUIT TO SET OFF CROSS JUDGMENTS - RESTRAINING TRANSFER, A judgment against the United States can neither be enforced by process nor transferred so as to prevent the government from setting off against it any cross demand against the judgment plaintiff, espe cially in view of the provision of Act March 3, 1875 (18 Stat. 481), expressly requiring such set-off. Hence there is no necessity nor ground for the issuance of a preliminary injunction or restraining order by a court of equity, in a suit by the United States to set off cross judgments, to prevent the transfer of his judgment by the defendant.

Appeal from the Circuit Court of the United States for the District of Colorado.

On December 2, 1899, John C. Teller, the appellant, recovered a judgment against the United States of America, the appellee, in the circuit court of the United States for the district of Wyoming, in the sum of $18,843.16. On January 24, 1901, the United States recovered a judgment against Teller in the circuit court of the United States for the district of Colorado in the sum of $27,963.96. Afterwards, on the same day, January 24, 1901, the United States exhibited its bill of complaint against Teller in the circuit court of the United States for the district of Colorado, alleging therein the foregoing facts, and also that Teller was insolvent, and prayed for a temporary restraining order enjoining Teller from assigning his judgment, and for a final decree offsetting the judgment in favor of the United States against Teller's judgment so far as necessary to satisfy the same. Upon the filing of this bill, and on due notice of the motion therefor, the circuit court, on January 28, 1901, made an interlocutory order, based solely on the averments of the bill, restraining Teller from transferring, assigning, or in any manner disposing of his judgment until the further order of the court. From this interlocutory crder an appeal was prosecuted to this court pursuant to the provisions of Act March 2, 1891 (26 Stat. 825). See 49 C. C. A. 263, 111 Fed. 119.

Willard Teller (Mr. Clayton C. Dorsey, on the brief), for appellant.

Robert A. Howard and John K. Richards, for the United States. Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

ADAMS, District Judge, after stating the case as above, delivered the opinion of the court.

The only assignment of error deemed necessary to consider in disposing of this appeal is that the complaint fails to disclose that the United States could have suffered any injury if Teller had assigned or transferred his judgment. The subject of set-off, or applying a creditor's cross demands or counterclaims to the satisfaction of existing demands in favor of the debtor, is undoubtedly of equitable cognizance. North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596, 14 Sup. Ct. 710, 38 L. Ed. 565. But, as said by Mr. Justice Jackson, in delivering the opinion of the court in that case, such cross demands "may be enforced by way of set-off whenever the circumstances are such as to warrant the interference of equity to prevent wrong and injustice." There must be in cases of this kind, as in all others seeking equitable relief in the nature of a restraining order, a reasonable ground to believe that some threatened or probable injury will result before a court of equity will subject a defendant to the annoyance, cost, and expense incident to a restraining order. It is not sufficient that such an order will do no harm. It should at least be made to appear

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that it would do some good. Applying the foregoing principles of equity to the case before us, we observe: First, that it was not in Teller's power to enforce his judgment against the United States by levy of execution as in cases between natural persons, the only possible resort for securing its payment being an act of congress making an appropriation therefor; and, second, that any transfer or assignment of his judgment would confer no greater rights upon a transferee or assignee than Teller himself had, and that all equities, whether of set-off, counterclaim, or otherwise, against him, would be enforceable against any such transferee or assignee. The foregoing propositions are not only obvious, but were conceded by counsel of the United States, at the argument of this case, to be correct. Not only so, but the act of March 3, 1875 (18 Stat. 481), affords an ample safeguard against any possible injury in such cases. It is as follows:

"When any final judgment recovered against the United States or other claim duly allowed by legal authority shall be presented to the secretary of the treasury for payment, and the plaintiff or claimant therein shall be indebted to the United States in any manner, # * it shall be the duty of the secretary to withhold payment of an amount of such judgment or claim equal to the debt thus due to the United States."

(113 Fed. 465.)

Any person to whom Teller might have sold his judgment would have taken it with knowledge of the provisions of the foregoing act, and subject thereto. Teller, no doubt, fully recognizing the restraints against him, never has taken any steps to enforce his judgment, or to sell or dispose of the same, and never has threatened to do so. This appears by necessary inference from the fact that no averment to the contrary is made in the bill of complaint.

From the foregoing it clearly appears that no wrongful act has been threatened by Teller, and that, in the nature of the case, no wrong or injury in the matter complained of can, with or without a restraining order, be inflicted by him upon the United States. The restraining order was therefore a vain thing, and the court below was not, in our opinion, warranted in the exercise of a sound discretion in awarding the same. The order appealed from is therefore reversed, and the cause remanded to the trial court, with directions to deny the motion for a preliminary injunction.


(Circuit Court of Appeals, Second Circuit. January 14, 1902.)

No. 38.


The circuit court of appeals, having no jurisdiction of any case in which the validity or construction of treaties is called in question, is authorized by Act March 3, 1891, § 6, to certify to the supreme court any question of law concerning which it desires the instruction of that court for its proper decision. An appeal to the former court presented the question whether the Chinese treaty of 1894 repealed the existing statutes authorizing the deportation of Chinese, but also included other questions, which were within the jurisdiction of the court. Held, that

the court of appeals could reserve its decision on the latter questions, and certify the former to the supreme court, or might reverse r affirm the decision without passing on the former question, but was not authorized, by reason of there being other questions involved in the case, to pass on the former question.


Assignments of error, on an appeal to the circuit court of appeals from an order in habeas corpus proceedings discharging a prisoner, that the trial court erred in discharging the prisoner, and in not ordering him back into custody, and in not dissolving the writ, are insufficient in not setting out particularly the error intended to be urged, as required by rule of the court.


Where objections to the form of a petition for a writ of habeas corpus are not urged in the district court, they will not be considered on appeal.

Appeal from the District Court of the United States for the Southern District of New York.

A. U. Parsons, for the United States.

Max J. Kohler, for appellee.

Before WALLACE and LACOMBE, Circuit Judges, and TOWNSEND, District Judge.

WALLACE, Circuit Judge. This is an appeal from an order in habeas corpus made by the United States district court for the Southern district of New York discharging Lee Yen Tai from the custody of the marshal for the Northern district of New York. 108 Fed. 950.

The writ issued upon the petition of Lee Wah, a brother of Lee Yen Tai, setting forth, in substance, that Lee Yen Tai, being lawfully entitled to be and remain in the United States pursuant to the constitution and the laws thereof and the treaty with China promulgated in 1894, was imprisoned and held in restraint by the marshal by color of a warrant for his deportation issued by a United States commissioner for the Northern district of New York without jurisdiction. The return of the marshal set forth the warrant. The warrant recited, in substance, that the petitioner was arrested and brought before the commissioner on the charge of being a Chinese laborer seeking to enter the United States without producing the certificate prescribed by law, and not entitled to be or remain within the United States, and thereafter, upon a hearing and trial, was found guilty of the charge; whereupon the commissioner adjudged that he be immediately removed to the empire of China by the United States marshal for said district.

Upon the hearing in the district court no evidence was introduced, and the case was decided upon the facts set forth in the petition and the return. As no opinion was written by the district judge, it may be inferred that the decision proceeded upon the ground that the treaty of 1894 between the United States and China operated as a repeal of the pre-existing statutes providing for the deportation of Chinese citizens unlawfully within the United States.

The assignments of error assume that the decision proceeded upon this ground, and challenge the construction placed by the court upon the treaty. If the appeal presented no other question than the cor

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