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on the issue of fraud in obtaining the order of sion when this suit was instituted. The bond sale in the Probate Court of Galveston County was given to enable him to effect that result, The case further appears in the opinion. and it was accomplished. The bond took the Messrs. Geo. F. Moore, Geo. W. Pas-place of the property and represented it. The chal, A. S. West, J. M. Carlisle and John premises were as much in his possession as if Hancock, for plaintiffs in error. no litigation was pending and he had acquired possession in some other way. The defendant in error having declined to become a party to that suit, everything done in it was, so far as he was concerned, res inter alios acta.

Messrs. James A. Buchanan, Jackson & Jackson, A. J. Hamilton and Chandler & Carleton, for defendant in error.

Mr. Justice Swayne delivered the opinion of the court:

There was no error in admitting in evidence the two depositions of H. H. Williams. The objections that he was a party to the record, and interested in the event of the suit, 244*] *were obviated by the 3d section of the Act of July 2, 1864. 13 Stat. at L., 351. He was thus placed upon a footing of equality with all other witnesses, and it was competent for him to testify in the case orally or by deposition. The depositions were taken and certified in conformity to the 30th section of the Act of 1789. 1 Stat. at L., 89. If the deponent was not satisfied with his first deposition, he had the right to give a second one. No order of the court was necessary in either case. The only objections insisted upon are that the statute does not authorize a party to testify by deposition if he can orally, and that if he can by deposition, the right was exhausted by the first one, and that the second one was taken without authority of law. Both objections are without foundation. The statute is remedial and to be construed liberally. We are aware of no case in which it has been held that where a witness has given one deposition in an action at law, he cannot for that reason give another without the sanction of the court. Such a proposition has the support of neither principle nor authority.

The instruction given to the jury touching the trust deeds executed by W. H. and J. H. Williams to Wildbahn, the notes they were given to secure, and the sale by Connett of the slaves, which was in part the consideration of the notes, was well warranted by the state of the evidence and was correct. It was objected to only upon the ground that the evidence did not tend to prove that the slaves were removed from Missouri to Texas for the purpose of selling them in the latter State, and that hence the instruction, even if correct as matter of law, was, with reference to the case, an abstraction, and must necessarily have had the effect of confusing and misleading the minds of the jury. An examination of the record has satisfied us that the evidence was abundantly sufficient to raise the question of intent in the removal of the slaves, and to make it the duty of the court to say to the jury what was said upon the subject. It is not objected that the rule of law was not correctly stated.

The secondary proof of the judgment in favor of H. H. Williams, against Samuel M. Williams, was properly admitted. The original record was destroyed by fire in the year 1862. The proof in question consisted of a copy of a copy of the judgment, the latter duly certified by the clerk of the court by whom the judgment was rendered. It was proved that the certified copy had been destroyed. The judgment in question was recovered upon a prior judgment in favor of the same plaintiff against the same defendant. There was evidence tending to show that a certified copy of the latter existed but it was not positive. There was no proof of the existence of such a copy of the judgment sought to be proved. There was a discrepancy as to a single word in the copy offered in evidence. It set forth that the clerk had assessed the damages at "forty-three thousand nine hundred and sixty-six dollars and thirty-four cents, and that it was, therefore, considered by the court that the plaintiff recover of the defendant the sum of forty-three thousand nine hundred and thirtysix dollars and thirty-four cents," etc. It was satisfactorily proved aliunde that thirty, instead of sixty, was correct, the latter being a mistake of the copyist.

*The principle established by this [*246 court as to secondary evidence in cases like this is, that it must be the best the party has it in his power to produce. The rule is to be so applied as to promote the ends of justice and guard against fraud, surprise and imposition. Renner v. Bk., 9 Wheat., 597; 1 Greenl. Ev., sec. 84 and n. The copy here in question was properly admitted. Winn v. Patterson, 9 Pet., 676. This court has not yet gone the length of the English adjudications which hold, without qualification, that there are no degrees in secondary evidence. Doe v. Ross, 7 Mees. & W., 106.

The Act of Congress of March 3, 1871, 16 Stat. at L., 474, ch. cxi, provides for putting in a permanent form proof of the contents of judicial records lost or destroyed, such proof to take the place of the original records for all purposes. The Statute of Texas upon the subject of proof in cases of lost records (Paschal, Dig., art. 4969), has also been referred to in this con nection. There is nothing in either the Act of Congress or the statute in conflict with the action of the court we have been considering.

The most important question in the case re245*] *What was done in the suit between lates to the proceedings of the County Court of Connett and J. H. and W. H. Williams in nowise Galveston County, touching the sale and conveyaffected the rights of H. H. Williams in this ac- ance of the premises in controversy by the adtion. The marshal seized the premises, and ministrator of Samuel M. Williams to H. H. Connett gave a replevin bond pursuant to the Williams. The plaintiffs in error insist that Statute of Texas. While the property was in those proceedings were coram non judice and the hands of the marshal it was in the custody void. The defendant in error maintains that of the law. When Connett gave the bond the they were regular and valid, and that if there premises passed from the custody of the law be any error or defect, the court having had into his possession, and they were in his posses-jurisdiction, its proceedings could not be collat

erally assailed upon the trial of this cause in the court below. This renders it necessary to examine the case in this aspect. The record shows the following facts: on the 28th of June, 1850, H. H. Williams recovered in the District Court of the United States held at Galveston, against S. M. Williams, then living, a judgment for $26,736. And on the 12th of July, 1858, an247*] other *judgment for the sum of $43,936.34. The second judgment was founded upon the first one, and was for the principal and interest due upon the latter. At the January Term, 1866, of the Galveston County Court, H. H. Williams, by his counsel, applied for an order that the administrator of S. M. Williams be cited to appear and show cause why "he should not make application to the court for an order to sell enough of the property of said estate to pay a judgment obtained by the said Henry Williams against the said Samuel M. Williams, to the amount of $40,000; which said judgment was allowed and approved as a valid claim against said estate, in October, 1859, with eight per cent. interest per annum," etc.

The administrator appeared at the same term, and answered that the plaintiff recovered the judgment first hereinbefore mentioned; that it was presented for allowance against the estate with the usual affidavit and allowed; that he could not say whether it was approved by the Chief Justice of Galveston County; that it had never been paid, and that the reason he had taken no measures to pay it was that the plaintiff had told him that, being against his brother, he did not intend to enforce it. The court thereupon, at the same term, made an order as follows:

"On this day came on to be heard in this cause the motion of Henry Williams, by his agent, John H. Williams, asking that the administrator be required to sell sufficient property of the estate to pay a certain judgment obtained by the said Henry H. Williams in the United States District Court, on the 28th day of June, A. D. 1850, for the sum of $26,736, with interest from date of rendition; and it appearing to the court that this claim has been duly allowed, and that the administrator has no funds in hand whatever to pay the same, it is ordered that he make sale of sufficient property in pursuance of the prayer of the motion. And the administrator having designated the following piece of property, it is ordered that he shall make public sale of one league of land, situated," etc.

The premises in controversy were then de248*]scribed, the *mode and time of advertising, and the place and terms of the sale were prescribed, and the administrator was directed "to make due report of his action in the premises to the court." On the 15th of March, 1866, the administrator reported that, pursuant to the order of the court, after due notice according to law, he had offered the premises for sale at public auction, at the time and place required by law, and that they were struck off and sold to Henry H. Williams, for the sum of $60,000, on a credit of twelve months, secured by a vendor's lien; that Williams was the highest and best bidder, and that the price was a reasonable one. At the March Term the court confirmed the report and ordered the administrator to make a deed to the purchaser, upon his complying with

the terms of the sale. On the 15th of April, 1866, the administrator gave a receipt to the purchaser for $60,600, being the amount of the purchase money with ten per cent. interest, and by the same instrument released his vendor's lien. On the same day the administrator exe cuted a deed of conveyance to H. H. Williams. It recites all the proceedings touching the sale upon which it was founded.

On the 2d of January, 1868, the administrator executed to H. H. Williams another deed for the same premises. It recites more fully the proceedings relative to the sale, and sets out that there were certain clerical errors of dates in the former deed, and that this deed was made to correct them.

The titles adverse to the plaintiff, developed upon the trial in the court below, were all derived from heirs at law of Samuel N. Williams. The premises were liable under a paramount lien for the debts of the ancestor. Paschal, Dig., art. 1373. The plaintiff's claim was of that character. Hence, if the sale and conveyance to him by the administrator were valid, they were conclusive in his favor. He could recover, however, only upon the strength of his own title. The weakness of the title of his adversaries could not avail him.

*Most of the objections to the sale by [*249 the administrator taken in the brief of the plaintiffs in error, were not insisted upon in the argument at the bar, and are of such a character as to require no observations from the court. One was pressed upon our attention with earnestness and ability, and to that one our remarks will be confined.

A Statute of Texas requires all claims against the estate of a decedent to be presented to his legal representative and to be allowed by such representative, and to be approved by the probate judge. Until so allowed and approved they have no legal validity and cannot be recognized as debts against the estate. If disallowed, or not approved, they must be sued upon within three months. If sued without a refusal to allow or approve, there can be no recovery. The absence of such fact is fatal to the action. Paschal, Dig., art. 1309, 1311; Danzey v. Swinney, 7 Tex., 625; Martin v. Harrison, 2 Tex., 456.

The order of sale sets forth that the claim had been allowed by the administrator, but is silent as to its approval by the judge. The plaintiffs in error argued that this omission rendered the order a nullity.

The application of the judgment creditor and the answer of the administrator gave the judge jurisdiction over the parties and the real estate of the deceased. Paschal, Dig., art. 1305. Jurisdiction is the power to hear and determine. To make the order of sale required the exercise of this power. It was the business and duty of the court to ascertain and decide whether the facts were such as called for that action. The question always arises in such proceedings-and must be determined-whether, upon the case as presented, affirmative or negative action is. proper. The power to review and reverse the decision so made is clearly appellate in its character, and can be exercised only by an appellate tribunal in a proceeding had directly for that purpose. It cannot and ought not to be done by another court, in another case,

Improper order of Circuit Court-liens on property sold in admiralty attachment of-appeal, effect of.

1. A Circuit Court cannot affirm the decree of the District Court and also dismiss the appeal. 2. Maritime liens upon the property sold by the order of the admiralty court, follow the proceeds, but the court.cannot decree that third persons, who could not have proceeded against the property in rem, may recover a proportion of the proceeds to satisfy their claims against the owner, in a case where the owner appears and opposes the applica

tion.

where the subject is presented incidentally, and | (See S. C., "The Lottawanna," 20 Wall., 201-226.) a reversal sought in such collateral proceeding. The settled rule of law is, that jurisdiction 250*] *having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud. Every intendment is made to support the proceeding. It is regarded as if it were regular in all things and irreversible for error. In the absence of fraud no question can be collaterally entertained as to anything lying within the jurisdictional sphere of the original case. Infinite confusion and mischiefs would ensue if the rule were otherwise. These remarks apply to the order of sale here in question. The county court had the power to make it and did make it. It is presumed to have been properly made, and the question of its propriety was not open to examination upon the trial in the circuit court. These propositions are sustained by a long and unbroken line of adjudications in this court. The last one was the case of McNitt v. Turner, 16 Wall., 366, 21 L. ed. 348. They are not in conflict with the adjudications of Texas upon the subject.

The Statute of Texas does not require the evidence upon which the judgment of the court proceeded to be set forth in the record. Such a statement can do no good, and its omission does no harm.

As regards public officers, "acts done which presuppose the existence of other Acts to make them legally operative, are presumptive proofs of the latter." Bk. v. Dandridge, 12 Wheat., 70. "Facts presumed are as effectually established as facts proved, where no presumption is allowed. In the case of Ward v. Barrows, 2 Ohio, St., 247, a sale for taxes came under examination. It was held that certain acts of the county auditor were presumptive proofs that he had administered to the collector the oath prescribed by law touching the delinquent list. The sale was sustained. Here the judge who made the order of sale was the judge to approve the claim. The order was presumptive proof of the requisite approval. Such approval was necessarily implied, and what is implied in a record, 251*] *pleading, will, deed, or contract, is as effectual as what is expressed. U. S. v. Babbitt, 1 Black, 61, 17 L. ed. 96.

3. No lien or right of preference in the fund can be acquired by virtue of proceedings under the state garnishee process, or by execution or attach

ment.

4. Where an appeal taken from the decree of the District Court is a proceeding in rem to the Circuit Court, the property or proceeds thereof follows the cause into the Circuit Court.

[No. 233.]

Argued Mar. 19, 1874. Decided Apr. 6, 1874.

APPEAL from the Circuit Court of the United

States for the District of Louisiana.
The case is stated by the court.

Messrs. John A. Grow and L. Madison
Day, for appellants.

Messrs. Durant & Hornor and Thos. Hunton, for appellees.

Mr. Justice Clifford delivered the opinion of the court:

Complicated, as the record is, it will be impossible to state the questions presented for decision, in a manner to be understood, without referring to the original proceedings in the District Court, as the suit, when it was commenced,

was a libel in rem filed by two mariners, Jonathan D. Cox and Jasper N. Geren, against the steamboat Lottawanna, her tackle, apparel, machinery and furniture, in a cause of subtraction of wages, civil and maritime.

Prior to the institution of the suit, the allegation is that the steamer had been engaged in commerce and navigation between the Port of New Orleans and various other ports and places on Red River and its tributaries, and that the The proceedings touching the sale were properly admitted in evidence, and the instruction libelants, during that period, were duly emgiven to the jury upon the subject was correct. ployed by the master as the pilots of the steamThe last assignment of error relates to frauder, and that they continued in that employment in obtaining the order of sale.

It seems to us that the evidence disclosed in the record was hardly sufficient to raise any question upon that subject. However that may be, the instruction given to the jury was unexceptionable, and the plaintiffs in error have no right to complain.

The judgment of the Circuit Court is affirmed.

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for the respective periods and at the monthly wages specified in the libel. They also allege that they faithfully performed their respective duties, as such pilots, and that there is due to them the respective sums charged in the schedule exhibited in the record. Wherefore they pray for process against the steamer, etc., and that she may be condemned and sold to pay their respective claims.

Pursuant to the prayer of the libel a warrant was issued, and the return of the mar- [*211 shal shows that he seized the steamer and that he published a monition, citing and admonishing the owners, and all others claiming any right, title or interest in the steamer, to appear, on a day therein named, at the District Court, and show cause, if any they have, why the

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prayer of the libel should not be granted. Subsequently, on the same day, the libelants filed a petition in the District Court, representing that the steamer was expensive to keep and perishable, and prayed for an order that she might be sold.

On the same day, also, Moses Morgan filed an affidavit in the case, stating that he owned three fourths of the steamer, and that he had no objection that she should be sold, and the record shows that the court immediately passed an order that the steamer be sold by the marshal, he giving legal notice of the sale, and that the proceeds be deposited in the registry, subject to the further order of the court. Nothing is exhibited to show that there was any irregularity in the sale, and it appears that the proceeds, amounting to $10,500, were deposited in the registry of the court.

Before the other owner of the steamer, Philip A. Work, appeared, seventeen libels of intervention were filed in the court against the proceeds of the sale of the steamer, embracing some forty interveners, with claims for wages as mariners, and claims for materials for repairs, and for stores and supplies, and for money loaned for the steamer, or for the individual owners, and to pay for debts contracted by the master, or owners, for repairs and supplies during a period of two or more years.

On the 4th of February, 1871, more than a month after the original libel was filed, Philip A. Work appeared and filed a claim that he was the owner of the other undivided fourth part of the steamer; and he excepted to all of the libels of intervention except the one filed by the mariners, being the libel of intervention first named in the record, and upon three grounds, and prayed that the interventions might be dismissed: (1) Because the court was without ju212*] risdiction, *ratione materia, of the matters alleged in the several libels. (2) Because the court was without jurisdiction to entertain the interventions or to adjudicate thereon, for the reason that all of the owners of the steamer, at the date of the several causes of action set forth, were citizens of that State and resided in the City of New Orleans, at which port the steamer was registered and enrolled. (3) Because the respective interveners did not, on filing their libels, give stipulations, with sureties, to abide the final decree rendered in the case, and to pay costs, as required by the rules in admiralty proceedings.

Intervention was subsequently claimed by other parties and other directions were given, which it becomes important to notice, in order to have a full view of all the material proceedings in the District Court.

Libels in personam were also filed by the appellees and by John Chaffee and Charles Chaffee, who are the last named appellants. By the transcript it appears that the libel of the appellees was filed on the 6th of February, 1871, and that the libel of the said appellants was filed on the following day. Service of the original monition was made January 1, 1871, and on the 7th of February succeeding, the court passed an order that the delay allowed by law having expired, and no answer having been filed, that all persons interested in the property seized be pronounced in contumacy and default,

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and that the libel in the principal case be adjudged and taken pro confesso.

On the 13th of the same month the court entered a decree in favor of the libelants, as follows: that J. D. Cox recover the sum of $1,306, and that J. N. Geren, the other libelant, recover the sum of $674.28, from which decree neither the libelants nor the owners of the steamer have ever appealed.

On the 3d of March, 1871, subsequent to the said decree, Jesse K. Bell filed a libel of intervention, claiming the sum of $2,200, as paid by him on two claims for fuel furnished to the steamer by the persons *named in the [*213 libel. Leave was granted to the applicant to file the libel, and on the same day the court passed an order that the cause be referred to a commissioner to report upon a tableau of distribution, and to classify the various claims according to law, giving all parties a right to take further evidence before the commissioner.

Since that time further libels of intervention have been filed as follows, to wit: one by J. Sharp McDonald, on the 18th of the same month, for five hundred and forty boxes of coal; another by Thomas Onley & Co., on the 31st of the same month, for services, the account being approved by the master and by the mate; and one other by Christian & Hyatt, on the 2d of May in the same year, for stationery furnished for the use of the steamer.

Besides the libel filed by the two pilots, a libel in rem was also filed by the mate against the steamer, on the 30th of December, 1870, for the balance due him for wages, and the record shows that the court, on the 10th of February next after the commencement of the suit, entered a decree in his favor for the amount claimed and taxable costs.

Morgan and Work failed to answer the suit in personam of Kennett & Bell against them, and the court, on the 20th of November, 1871, passed an order that the libel be taken pro confesso, and that a decree be entered in favor of the libelants, and three days later it was ordered that the suit be consolidated with the record in the original suit in rem against the steamer.

Different proceedings took place in the suit in personam commenced by Chaffee & Bro., as Joseph Morgan appeared on the same day and confessed judgment in favor of the libelants for the sum of $10,896.56, with eight per cent. interest from the 23d of January preceding. Judgment was accordingly rendered in their favor against Morgan for that amount. Work made default, and a decree, dated June 1, 1871, was entered against him for the same amount in favor of the same libelants.

Report in due form was made by the commissioner, on *the 4th of May in the [*214 same year. He decided that none of the creditors, presenting claims for repairs and supplies, had any right to libel the steamer in her home port, and recommended that the proceeds in the registry of the court be distributed as follows: First, that all legal costs be paid in full. Second, that all claims of the seamen for wages be paid in full. Third, that all claims for labor, supplies, and materials for repairs, be paid pro rata, according to the schedule of claims annexed to the report.

Exceptions of various kinds were filed to the report of the commissioner: (1) That certain claims were allowed which were not due from the owners of the steamer, or were, in whole or in part, improperly classified as claims for stores or for supplies and repairs. (2) That the schedule improperly includes claims not having any maritime lien on the steamer or the proceeds in the registry of the court, nor entitled to any preference by attachment or otherwise. (3) That the compensation charged by the commissioner is excessive.

Pending the hearing of the exceptions to the report of the commissioner, the court passed an order that the claims for costs and the claims of the seamen for wages should be paid, and it appears that the order was promptly carried into effect, but the residue of the report was finally referred back to the commissioner for further proceedings. In the meantime the appellees here, having obtained judgment against the owners of the steamer in their suit in personam, sued out a garnishee process from the Sixth District Court of the State, and attempted to attach the proceeds as money in the hands of the clerk of the District Court. All parties were again heard by the commissioner, and, on the 4th of June following, he made a supplemental report. In his second report, he decided that, where there is a maritime lien upon the vessel, the lien will attach to the proceeds in case the vessel is sold, and the proceeds are paid into the registry of the court, but where there is no maritime lien upon the vessel, that the proceeds should not be distributed, if the owners make opposition to the application, unless the appli215*] cants *prove that they have some legal or equitable interest in the subject-matter, and the commissioner being of the opinion that the interveners had no maritime lien, reported that the proceeds remaining in the registry of the court could not be distributed for their benefit in this case, and recommended that the court order, either that the proceeds be paid over to the owners of the steamer or to the sheriff who seized the same in the hands of the clerk acting as registrar, under the garnishee process.

Seasonable exceptions were filed to the report by many of the interveners opposed in interest to its conclusions, including the last named appellants. Due notice having been given, the parties were heard, and the court entered a decree that all the interventions in the cause, founded on claims which are not liens in admiralty, be dismissed at the cost of the respective parties. All such parties, including the last named appellants here, claimed an appeal to the Circuit Court, and the record shows that the appeal in their behalf was duly allowed, and that they filed an appeal bond, executed to the owners of the steamer and the appellees in this court. Certain other interveners also petitioned for an appeal, and the court passed an order granting it, without requiring any additional bond, in consequence of which omission the present appellees, on the 20th of December following, moved the District Court to set aside and dismiss the last named appeal, and the record shows that the court, on the 25th of January following, granted the motion and vacated and annulled the appeal.

Seamen's wages and costs having been paid, the interveners whose appeal was allowed

moved the court, on the 11th of January, 1872, that the fund in the registry of the court be transferred to the Circuit Court, which motion was for a time held under advisement. During that period the District Court, on the 6th of February following, entered a decree that the proceeds in the registry of the court be applied, first, to the satisfaction of the judgment of the present appellees against the owners of the steamer; and, *second, that the balance, [*216 if any, be paid over to Chaffee & Bro., seizing creditors, next in rank.

Application for an appeal by Chaffee & Bro. was made on the following day, and on the 26th of the same month the court overruled the motion to transfer the fund into the Circuit Court, and the last named motion for an appeal, and ordered that the fund be paid over as directed in the order previously given upon that subject. Chaffee & Bro., however, were among the petitioners for the appeal which was previously allowed by the court, and their names appear in the bond which was filed to prosecute the appeal, but they were libelants in personam and not strictly interveners in the original suit prosecuted in rem by the two pilots.

Copies of all the material orders, directions and proceedings in the original suit, and in the several suits of Allen v. The Steamer; Kennett & Bell v. The Owners; and Chaffee & Bro. v. The Owners, were sent to the Circuit Court under the certificate of the clerk of the District Court, together with copies of all documents filed and of the minutes of all the evidence introduced in those several cases, and the case was entered in the Circuit Court, on the 29th of May, 1872, under the title of J. D. Cox et al. v. The Steamer, which is the title of the original suit in the District Court, from which no appeal was ever taken, either by the libelants or the owners.

Appearance was entered by Kennett & Bell, and they moved to dismiss the appeal for the following reasons: (1) Because the appeal was discharged in the District Court, which is not sustained by the record. (2) Because the bond filed is irregular and not such as the law requires; and the Circuit Court having affirmed the decree of the District Court granted the motion to dismiss.

Immediate application for an appeal to this court was made by the present appellants, which was allowed by the Circuit Court, and the petitioners gave bond wth surety to the present appellees et al. to pay all such damages as they may recover against the appel- [*217 lants, in case it should be decided that the appeal was wrongfully obtained.

Irrespective of the question whether the appeal is regular or irregular it is quite clear that the decree of the Circuit Court must be reversed, as one part of it is repugnant to an other part. Plainly, if the appeal was regular, it was error to dismiss it; and if it was so irregular that it became the duty of the court to dismiss it, the Circuit Court had no jurisdiction to affirm the decree of the District Court. Cases of admiralty and maritime jurisdiction, where the matter in dispute, exclusive of costs, exceeds the sum or value of $50, may be removed from the District Court into the Circuit Court by appeal, and the provision is that such appeal shall be subject to the same rules, regulations and restrictions as are prescribed by

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