managed and regulated, whether open to the
use of all indifferently, whether portions shall
be set apart for particular uses, whether certain
classes of business shall be confined to particu-
lar localities, whether controlled by the immedi-
ate agents of the City or managed by those to
whom the City may lease them, are matters of
police regulation to be settled by the authorities
of the City. Slaughter-House Cases, 16 Wall.,
36, 21 L. ed. 394. In none of the cases is it to
400*]*be assumed that the power will be wi-affirmance of the judgment.
fully exercised to the injury of the City.

er, 22 N. Y., 504; Perkins v. Ins. Co., 4 Cow.,
645; Peterson v. Mayor, 17 N. Y. 449.

A ratification once made, with a knowledge of all the material circumstances, cannot be recalled. Story, Ag., sec. 242. A ratification of a part of a contract ratifies the whole. Story, Ag., secs. 242, 250. One act of ratification is as complete and perfect in its effect as any number of acts of the same character. Ib.

For these reasons I am able to concur in the

In my view, the agents of the City who made Mr. Justice Field, dissenting: the lease of July 18, 1865, which we are now I am unable to agree with a majority of the considering, exceeded the authority they pos-court in the judgment rendered. The power of sessed. Their authority was limited to the time of the possession and control of the lots by the military authority which appointed them. The making of the lease, however, was not an ille gal act in any other sense than that the agents had exceeded their powers. The excessive acts of those agents were capable of ratification, and if ratified, were as binding upon the principal as if originally authorized.

the Mayor and Board of New Orleans, appointd by the commanding general upon the military occupation of that City, terminated with the cessation of hostilities; and I am of opinion that no valid alienation of any portion of the levee front and landing of the City could be made by them for any period extending beyond such occupation.

alienation. They confer only tne rights of possession and use. When the military occupation ceases, the property reverts to the original owner with the title unimpaired.

Assuming, as asserted, that the capture of It appears that the lessees gave their notes New Orleans gave to the military authorities (120 notes in number) for $666.66 each, payable of the Union the same rights with respect to semi-monthly, for the whole amount of the rent property there situated which would attend the to become due. The first nine of the notes were conquest of a foreign country, the result is not paid to the Mayor and Bureau acting under different. A temporary conquest and occupathe military autnority. The government of tion of a country do not *change the ti- [*402 the City now in power was elected by the cititle to immovable property, or authorize its zens according to law, in the ordinary manner, upon the resumption by the State and City, of their civil powers, and was vested with the entire authority of the City in respect to wharves, levees, their management and control. Upon "Of lands and immovable property belongthe principles already stated, it had power to ing to the State," says Halleck, "the conqueror lease the levee and wharf in question to the has, by the rights of war, acquired the use so Steamship Company for the period named in long as he holds them. The fruits, rents and the lease. Prior to the war, it had leased por-profits are, therefore, his and he may lawfully tions of its wharves to .ndividuals, and had claim and receive them; but contracts or agreefarmed out the collection of the levee dues upon ments. however, which he may make with inthe entire wharves by sections. 1 Dillon, Mun.dividuals farming out such property, will conCorp., secs. 43, 64, 67, 74, 181. tinue only so long as he retains control of them, It came into possession of the City Govern- and will cease on their restoration to or recovment upon the election of its citizens on the 18thry by their former owner." Internat. L., ch. of March, 1866. Twenty-four days thereafter, xxxII., sec. 4. Such is the language of all to wit: on the 11th of April, 1866, the note for publicists and jurists, and there is nothing in $666.66, due three days previously, was paid to the circumstances attending the military occuthe City Government. At the same time all pation of New Orleans by our forces which calls the other notes, one hundred and eleven in num- for any modification of the well established rule ber, were transferred by the military govern of public law on this subject. The fact that ment to the new city administration. These New Orleans is a part of one of the States of notes were retained by the City until several the Union, certainly ought not to be deemed a months after the present action was begun. reason for enlarging the power of the military 401*] when they were tendered by the plaintiff commander, but, on the contrary, would seem by supplemental answer. No tender was ever to be good ground for restricting it. made of the money, $666.66 received by the City upon the note paid to it by the plaintiff for the rent due April 8, 1866. It now holds and joys, to that amount, the rent received by it under a lease which it seeks to repudiate.

It appears to me to be perfectly clear that, according to settled doctrines of public law, enquestioned by no publicists, but everywhere recognized, the authorities of New Orleans were restored to as complete control over the levee front and landing of the City upon the cessaion of the military occupation as they possessed previously, and had, in consequence, a perfect right to remove all obstacles to the public use of such levees and landings.

The reception and holding of this rent is a clear and unqualified act of ratification, which bars the defense of a want of authority to execute the lease from which it issued. It is in violation of every principle of honesty and of sound morality, that one should retain the benefit of the act of his agent, and at the same time repudiate such act.

I do not see any ground for the application of the doctrine of ratification in the case. The ivil authorities of the City were restored to Story, Ag., secs. 239, 240, 252, 254, 259: Bis-power in March, 1866, and in April following sell v. R. R. Co., 22 N. Y., 258; Parish v. Wheel- they asserted their right to remove the obstruc

Suit was brought in the court below by the defendant in error, to recover damages for the alleged breach of a contract by the defendant, in excluding her from the management of a certain hotel, without giving her the stipulated | notice.

Judgment having been given for the plaintiff at the circuit and affirmed at General Term, the defendant sued out this writ of error. The case is further stated by the court. Messrs W. D. Davidge and Walter S, Cox, for plaintiff in error:

The plaintiff sues for breach of contract, averring her own performance and readiness to perform. It is always admissible in recoupinent to show a failure to perform according to contract, or a performance of such character as to be injurious rather than beneficial. It would not, for instance, satisfy this contract, for the plaintiff simply to act as superintend

Justices Clifford, Davis and Bradley did not hear the argument, and did not partic-ent of the hotel, while at the same time her ipate in the decision of this case.

The law will not allow a contract to bind one of two contracting parties, and not the other. If it is in writing and the mode of putting an end to it is provided, that mode must be followed.

Messrs. A. G. Riddle and J. H. Bradley, | nate the contract. He was not bound to confor defendant in error: tinue, as the superintendent of a large hotel, a person who was a lunatic or who was so stupid under the influence of narcotics that her presence was a danger and an injury, and who could render no reasonable service. The contract on her part implied some capability of performing the duties she had assumed, of rendering some service. If she could render none, defendant was not bound to continue it even for the thirty days which the termination of it by notice required. The court below erred in refusing to admit this evidence.

It is admitted that after the notice of July 11, the plaintiff and defendant continued their relations to this contract as they previously existed, until the 4th of October following, when he forcibly removed her from the hotel.

The plaintiff, to rebut these notices, offered evidence tending to show a waiver by the defendant of the notice of July 11, 1870.

It was purely a question of fact for the jurors to determine, and properly left to them. If they found it was waived by the defendant, it became extinct; and could not be revived by the defendant. His claim is, that he revived it more than two months thereafter.

Such a construction would operate to create a fraud upon the plaintiff.

The notice of the 19th of September, 1870, could not then have been made a renewal of its predecessor.

Nor is it a good notice, operating of itself to terminate the contract at the expiration of thirty days from its date. It does not propose or pretend to be a notice to take effect at a future day, but sets up a former notice that the plaintiff was holding over against that notice after the term expired, and is, if anything, a demand of immediate possession.

Mr. Justice Miller delivered the opinion of the court:

This is a writ of error to the Supreme Court of the District of Columbia.

The defendant offered evidence of a service of notice on the 11th July on plaintiff, under the contract, to terminate it. Also evidence of service of a notice on the 19th September of his intention to act on the first notice, and that the time had expired. Testimony was also given tending to show a waiver or withdrawal of the first notice. The plaintiff was dismissed about the 4th of October. On this testimony the court was asked by defendant to instruct the jury that, even if the notice of July 11th had been wholly withdrawn, the subsequent notice of September 19 was in *legal [*407 effect a renewal of the former notice, and of itself operated to terminate said contract at the expiration of thirty days from its date.

Assuming, as the bill of exceptions seems to show, that the date of the notice of September 19th was the date of its service on plaintiff, we think the court erred in refusing this

prayer.

tice of present intent to put an end to the arrangement. This notice of intent the contract makes effectual at the end of thirty days, and so the court was asked to instruct the jury. In declining to do this the court left the jury to infer that it had no effect whatever.

The only object or purpose of any notice in the case was to apprise the party on whom it was served that the other party intended to terminate the contract. The contract itself fixed the time when this should take place, namely: The defendant in error, plaintiff below, de- thirty days after the service. Ine fact that the clared on a written contract, by which Lyon notice refers to a past notice and speaks of the agreed to furnish the means of carrying on termination of the contract as being already acthe St. Cloud Hotel of this city, and Mrs. Pol-complished, does not destroy its effect as a nolard agreed to superintend and conduct it. For this service she was to receive one fifth of the net profits, in ascertaining which, the rent paid by Lyon for the house was to be excluded. Either party was at liberty to terminate the contract by giving thirty days notice in writing. The breach alleged is, that the defendant ejected plaintiff from the premises, without having given the stipulated notice. Under pleas which amount to the general issue, defendant undertook to show that he had given the notice required, and under a special notice of what he would offer in evidence, he offered to prove that plaintiff was unfit to perform her part of the contract by reason of the use of opiates, and by reason of her unsound mental condition.

These offers, as to the use of opiates and the unsound mental condition, are the subjects of bills of exceptions numbered two and three.

We do not agree with counsel that, for the insanity of plaintiff, or her mental incapacity to perform her part of the contract, whether from natural infirmities or from the use of opium, the only remedy of the defendant is an action against her on the contract. The plaintiff was employed to perform important and specific duties. Her compensation for this was to be one fifth of the net proceeds of the business which she had agreed to superintend. If she rendered herself or otherwise became incapable of performing these duties, that of itself authorized defendant to rescind or termi

It is probable that if the first notice was wholly waived or abandoned the defendant had no right to dismiss the plaintiff until the 19th day of October. But even in reference to damages, defendant had a right to show that under the contract and the notice she had only fifteen days to remain, and was injured only to that extent.

Without examining the other assignments of error, we think that in regard to these matters the judgment must be reversed.

(See S. C. 20 Wall., 421-430.)

Bottomry lien-when satisfied.

1. A ship is not discharged from a bottomry lien, unless the bond is actually paid.

2. Adjusters of average, who took an assignment

NOTE.-Bottomry and respondentia bonds and loans-see note to Blaine v. The Charles Carter, 2 L. ed. U. S. 636; and note to Conard v. Atlantic Ins. Co.. 7 L. ed. U. S. 189.

of the bottomry bond to themselves, and adjusted the business of a ship, collecting the freights, general average and insurance and making the necessary disbursements, have a right to apply the funds so collected, first, to the satisfaction of the debt due them for fees, commissioners and disbursements, applying only the remainder to the bond. For the balance unpaid, they have the security of the bottomry lien.

[No. 41.]

were bound to satisfy the bond, and extinguish the lien of bottomry. That was their agreement, and they had adequate funds belonging to the ship to fulfill their agreement. The law must imply that that which they were bound to do was done.

Johnson & Higgins, as agents of the mortgagor or mortgagee, or both, having paid and extinguished the bottomry bond and lien out

Argued Oct. 28, 1874. Decided Nov. 9, 1874. of the funds of the ship, which were ample for

from the mentioned, no lien on

ed States for the Eastern District of Penn

sylvania.

the purpose, and under the arrangement herefor fees and commissions, or for any disbursements made in New York.

If there were any other items in the present claim besides fees and commissions, they are not liens upon the vessel. On the doctrine of Minturn v. Maynard, 17 How., 477, 15 L. ed. 235, the libelants, as agents, must proceed in assumpsit against their principals. In ad

am or in rem.

Mr. Samuel C. Perkins, for appellees: There can be no question but that, upon the arrival of the ship in New York, there was a lien in favor of the bottomry creditor against the ship; nor that the holders by indorsement, in the absence of any special circumstances of exception, were entitled to enforce the bond in their own name and to all the benefit of the lien.

The Rebecca, 5 C. Rob. Adm., 102; The Prince of Saxe Coburg, 3 Hagg. Adm., 387; S. C. as Soares v. Rahn, 3 Moore (P. C.) 1; The Osmanli, 3 Wm. Rob., 198; The Mary Ann, 4 Notes of Cas. 379.

The ship Belle of the Sea arrived at New York from Calcutta, on the 13th of October, 1867. On the voyage she encountered heavy gales, sprung a leak and was compelled to put into the Mauritius for repairs. The funds necessary to meet the ship's necessities at the Mauritius were borrowed on bottomry; the amount of the bond in American currency be-miralty they have no remedy, either in personing $46,805.31. The bond covered the ship, cargo and the freight. There was also a mortgage on the ship for about $25,000; and on her arrival in New York the mortgagee took possession, and together with the mortgagor, employed as agents to adjust the ship's affairs, the firm of Johnson & Higgins, the appellees. They took an assignment of the bottomry bond. They paid the debts of the ship, cargo and freight, including seamen's wages, pilotage, port charges, etc. They also collected the sums due the ship on account of freight, insurance, general average, etc. But the amount collected by them lacked $6,409.82 of being sufficient to pay the amounts expended in paying said debts and in buying said bottomry bond. The ship having been sold, the appellees filed the libel in the District Court of the United States for the Eastern District of Pennsylvania in this case against her, to recover the said sum of $6,409.82, as an unpaid balance due upon the bottomry bond. The appellants, as purchasers of the ship, intervened and alleged that the said bottomry bond had been paid; that all moneys collected by the libelants in behalf of the ship were, by the terms of the agreement, to be applied first of all to extinguish the said bond, and that the claim of the libelants was only for a balance of account for the payment of other charges, which constituted no lien on the ship. A decree having been entered in favor of the libelants, and affirmed on appeal by the circuit court, the respondents took an appeal to this court.

Prima facie, therefore, libelants, as holders of the bond by indorsement, were entitled to enforce it against the ship.

Conceding, for the purposes of the present argument only, that there was no lien against the ship for the disbursements on her account in New York, libelants are to be considered as the holders of two classes of claims, one secured and the other unsecured.

There is no evidence of any specific appropriation by either or any of the parties, of the moneys paid to and received by libelants on account of the ship, and the law, consequently, steps in and applies these payments in the manner most beneficial to the creditor, that is, first to the unsecured claims, and then whatever may remain is applied on account of the secured claims.

Smith v. Brooke, 49 Pa., 147; Pierce v. Sweet, 33 Pa., 157; 2 Pars. Cont., 629, and authorities there cited; Field v. Holland, 6 Cranch, 8; Stamford Bank v. Benedict, 15 Conn., 437.

ness, was a maritime contract, having reference to maritime transactions, or, as put by the learned judge of the district court, their "whole demand, though (as regards the disbursements) an ulterior, is not too remote a consequence of a maritime necessity," and thus within the jurisdiction of admiralty.

The case is further stated by the court. Mr. Henry Flanders, for appellants: Mr. Higgins, himself, admits that his firm was employed to take up the bottomry bond, The libelants further contend that their unand not to continue it as an existing lien ondertaking in respect of the ship and her busithe ship. His testimony is as follows: "Our firm were employed to take up the bottomry bond on the ship Belle of the Sea, and to adjust the affairs of said ship on her arrival in New York in October, 1867. The mortgagee stated to us that he wanted to place the whole business in our hands, to have the bottomry bond taken up, and the business of the vessel generally attended to on arrival.' We agreed with him to transact the business, to take up the bond, and divide one half the commissions that could be earned in the case." Under this arrangement Johnson & Higgins

Ins. Co. v. Dunham, 11 Wall., 1, 20 L. ed. 90 and authorities cited; The Belfast, 7 Wall., 624, 19 L. ed. 266; The Kalorama and The Custer, 10 Wall., 204, 19 L. ed. 941-945.

In the case of Minturn v. Maynard, 17 How. 477, 15 L. ed. 235, which was principally re

Mr. Justice Strong delivered the opinion of the court:

lied upon by respondents in the courts below, | Ward, who held the bond, to take it up, takwas doubted on the authority of The Belfast, ing an assignment of it, before they had any supra; The Grapeshot, 9 Well., 141, 19 L. ed. interview with Mr. Kimball, the owner. They 656; Davis v. Child, Daveis, 71; Merritt v. could then have had no accurate knowledge Brewer, 14 Law. Rep., 452. of the amount of the freight, the general average and the insurance. They could not have known that the ship's resources would suffice to pay the bottomry and the other exVery clearly the ship was not discharged penses necessary to make the freight and the from the bottomry lien, unless the bond was general average available. And they had then actually paid, or unless the libelants agreed to no control over the insurances. It is, therepay it and look to the freights, the general fore, quite unlikely that they undertook to pay average, and the insurances exclusively for the bond and discharge the lien. Their artheir re-imbursement. Of actual payment rangement was with the mortgagee, and there there is no evidence whatever. On the arrival is no evidence that they agreed with him to of the ship at New York, Mr. E. A. Hammond, do anything more than take the bond from the who had a mortgage upon her, which. with in-holder and act as general agents of the ship terest, amounted to more than $30,000 took her in adjusting its affairs. The proofs do not into his possession, in virtue of authority con- establish that in that arrangement they underferred by the mortgage, and employed the libel- took to satisfy the bottomry and extinguish ants to take up the bottomry bond, to collect its lien without regard to the amount of the freight, the general average and insurance, freight, general average and insurances which and generally to transact the business of the could be collected, and without regard to the vessel. Subsequently this arrangement was as- necessary disbursements and commis-* [*429 sented to by the owner and the charterer. sions. Such is not the testimony of Mr. HigAccordingly the libelants took up the bond by gins, nor has the mortgagee so testified, and taking an assignment of it from the Messrs. the owner was not present at the arrangement. Ward who held it, and proceeded to adjust The appellants, however, rely upon the statethe business of the ship, collecting the freights, ment of two sons of the owner, who do not general average and insurance, and making the speak at all of the arrangement with the mortnecessary disbursements; but as they were un- gagee. They speak only of a subsequent interable to realize from the insurances what was view of Mr. Higgins with the owner, from expected, the sums collected proved insufficient whom the possession had been taken, and who to pay the expenses of discharging the ship, had then no control over the settlement of the the commissions and the necessary disburse- ship's affairs. Their statement is that Higgins ments, together with the bottomry bond. They proposed to pay tne bottomry bond for the now claim the right to apply what they have owner, if he would give his firm adjustments been able to collect, first, to re-imburse them- of claims against insurance companies, and selves, the commissions, necessary expenses expressed his convictions of what his firm could and disbursements made by them on account do, making some promises respecting the rate of the ship; and, secondly, to the discharge of of commissions, and promising to apply collecthe bottomry lien, looking to the ship for that tions to the bond immediately. The sons state portion of the bond which, by such marshaling further that this was verbally agreed to, but of the fund, remains unpaid. And such, we the policies were not delivered in pursuance think, are their rights, if they have not been of any such agreement; nor was there any surrendered. By the assignment of the bot- agreement to deliver them, and what is very tomry bond to them, they became bottomry | remarkable, the sons state that nothing was creditors, and even if there had been no such said at that interview about the policies. 428*] *assignment, and had they in fact paid They were subsequently handed to Mr. Higthe bond at the instance of the owner and gins to be collected, and the amount to be apmortgagee, they would have been entitled in plied to the payment of the bottomry bond, if equity to the rights of the bottomry creditor. necessary: These witnesses are contradicted in Being thus creditors by bottomry and also by some particulars by Mr. Higgins, but assumpayments on behalf of the ship for expenses, ing that their statement is correct, it falls far they have a clear right to apply whatever funds short of proof that Higgins agreed to discharge of the ship come to their hands, first, to the the ship from the bottomry lien, or agreed to satisfaction of their unsecured claims, and pay the bond and look only to the freight, insecond, to the bond, and to look to the ship for surances and general average. And, even if the any unpaid balance of the bottomry. If, how- firm could be considered as agents of the ownever, when they undertook their agency they er, the payment of his debt, or the debt of the agreed to pay the bond, and thus discharge ship, could not work a satisfaction of the debt, its lien, looking to the freight, the general or extinguish its lien. It would only change average and the insurance alone for re-im- the creditor. We are of opinion, then, that bursement, or to the personal liability of the no arrangement with the owner has been proved owner, as the appellants insist they did, they by which the libelants have been disabled from cannot now set up a lien on the ship. But we enforcing the bottomry lien. do not think the evidence establishes any such Another defense has been set up. The apagreement, and its existence is quite improb- pellants contend that the libelants are estopped able. They were adjusters of averages, and from resorting to the ship for any balance of they desired to be employed as such to attend the bond upaid, by their respresentations. to the business of the ship. To secure such *They insist that they purchased the [*430 employment, they made the most favorable rep-ship relying upon a representation of Mr. Higresentation of what they were able and will-gins, that if they purchased and would settle ing to do. But they proposed to the Messrs. certain claims of the charterers, there would