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Fed. 721, holding that maritime liens have priority over liens given by State statute; Sinton v. The Steamboat R. R. Roberts, 34 Ind. 451, 7 Am. Rep. 231, and Atlantic Works v. Tug Glide, 157 Mass. 526, 34 Am. St. Rep. 306, 33 N. E. 163 (see dissenting opinion, 529,532, 533, 33 N. E. 165, 166, 34 Am. St. Rep. 309, n.), both holding State courts could enforce in rem, lien given by State statute for building steamboat; Steamer Petrel v. Dumont, 28 Ohio St. 610, 611, 612, 614, 22 Am. Rep. 399, 400, 401, 402, and The Willapa, 25 Or. 73, 77, 34 Pac. 689, 691, both holding proceeding in rem under State statute cannot be enforced in State court on maritime contract; Waggoner v. Phillips, 10 Heisk. 521, holding provision in code was for enforcement of lien in personam, and unconstitutional; Warren v. Kelley, 80 Me. 524, 526, 15 Atl. 50, 51, and In re Steamboat Josephine, 39 N. Y. 26, both holding unconstitutional, State statute providing for enforcement in rem in State courts, lien given by local law for materials, etc., furnished domestic vessel; Brigg v. Light-Boats, 11 Allen, 184, where builder had transferred vessel to United States, a lien could not be enforced for labor and materials. Cited, without particular application, in Weaver v. McLellan, 5 Ben. 80, F. C. 17,309, and The Lottawanna, 20 Wall. 218, 219, 22 L. 262. Cited to point that pending cases are unaffected by repeal of old rule in Young v. The Ship Orpheus, 2 Cliff. 39, F. C. 18,169. Cited to point that contract for work and material employed in commerce is maritime, in Pollock v. Cleveland Ship B. Co., 56 Ohio St. 670, 47 N. E. 584.

Distinguished in The Sarah Jane, 1 Low. 206, F. C. 12,349, holding that admiralty has jurisdiction of libel by mariners for wages against vessel plying on navigable waters wholly within a State; The H. E. Willard, 52 Fed. 389, holding admiralty cannot enforce lien given by State statute upon subject not of a maritime nature; The Brig Eledona, 2 Ben. 33, 35, F. C. 4,340, the right to sue ship or owner for supplies does not depend on the twelfth rule of admiralty.

Maritime lien, for repairs, is not waived by the acceptance of owner's notes, where libellants did not agree to receive them in lieu of their original claim, pp. 532.

Cited and followed in The Bird of Paradise, 5 Wall. 561, 18 L. 666, holding bill or note, due before the unloading of the cargo, and protested and unpaid, is no discharge of the lien; The Ferry Steamer Norfolk, 2 Hughes, 126, F. C. 10,297, by taking note for supplies, he did not waive his lien in admiralty; as also in The Sarah J. Weed, 2 Low. 556, F. C. 12,350, The Eclipse, 3 Biss. 102, F. C. 4,268, The Illinois, 2 Flipp. 409, 417, F. C. 7,005, The Dubuque, 2 Abb. (U. S.) 29, F. C. 4,110, The Alabama, 22 Fed. 451, and The Queen of St. Johns, 31 Fed. 28, all holding same: The Steamer James Guy, 1 Ben. 117, F. C. 7,195, holding that burden was on claimant to prove libellant agreed to receive drafts in place of original claim; Risher V. The Frolic, 1 Woods, 94, F. C. 11,856, holding facts showed that

payee intended to take the note in extinguishment of his debt, and that his lien was lost; The Theodore Perry, 23 Fed. Cas. 912, holding lien for repairs may be enforced, though mortgage given as security has not been surrendered.

Distinguished in The Maitland, 2 Biss. 206, F. C. 8,979, holding repairs in foreign port, done by contract, do not constitute a maritime lien; The Nebraska, 69 Fed. 1013, 34 U. S. App. 119, holding that maritime lien is waived by accepting notes extending payment beyond time allowed for enforcement of lien.

Maritime lien.- Purchaser of vessel, though without notice of liens for repairs furnished by the local law, takes it subject thereto. p. 532.

Cited in Crosby v. The Lillie, 40 Fed. 368, holding seamen's lien for wages not divested by sheriff's sale.

Miscellaneous.- Cited incidentally in The Brig Antelope, 1 Ben. 345, F. C. 480, where libel was dismissed for non-prosecution; Friedman v. Israel, 26 Fed. 805.

1 Black, 533-540, 17 L. 185, LAW v. CROSS.

Parties. Where member of mercantile firm undertakes to render personal services to others, distinct from the partnership business, he, and not the partnership, should sue for such services, even though he agreed to share profits with the firm, p. 537.

Cited in The Ship Potomac, 2 Black, 584, 17 L. 264, holding right of libellant, doing all the work, to recover in his own name, cannot be defeated by showing that he had a party interested in the contract.

Trial. The court, without giving all instructions submitted by counsel, may submit the facts, and instruct jury in his own way, p. 538.

Cited and applied in Beaver v. Taylor, 1 Wall. 643, 17 L. 602, holding that if instructions outside of the facts of the case have misled the jury, the error is fatal; The Schools v. Risley, 10 Wall. 115, 19 L. 857, and Tweed's case, 16 Wall. 517, 21 L. 393, where instructions given present the whole controversy in clear terms, judgment will not be reversed because instructions of losing party, rejected, were correct in the abstract; Gerhauser v. Mer. Ins. Co., 7 Nev. 199, holding that rule in criminal cases, that when an instruction is refused because already given, court so inform the jury, does not apply in civil cases. Cited, but not applied, in Cliquot's Champagne, 3 Wall. 142, 18 L. 120.

Principal and agent.— Where agent, in purchase for principal, goes beyond his instructions, the principal must, when informed, reject within a reasonable time, or be bound, p. 539.

Cited and principle applied in Rolling Mill v. St. Louis, etc., R. R., 120 U. S. 260, 30 L. 641, 7 S. Ct. 544, presuming that board of directors ratified unauthorized contract of president, where they did not dissent within a reasonable time; Union M. Co. v. Nat. Bank, 2 Colo. 259, 262, 263, where unauthorized transaction is complete before knowledge comes to the principal, and no change in position of parties can occur from delay, silence does not create an estoppel; Scott v. Methodist Church, 50 Mich. 532, 15 N. W. 892, holding that religious society's ratification of act of trustees may be effected by acts of acquiescence; Barrett v. Davis, 104 Mo. 563, 16 S. W. 380, holding principal's long acquiescence in an unauthorized transaction to be a ratification; Johnson v. Gibbons, 27 Gratt. 636, holding creditor concluded by his failure to give his attorneys notice of his objection to their receiving the money; Higginbotham v. May, 90 Va. 239, holding long inaction of principal is equivalent to a ratification of agent's act; Ladd v. Hildebrant, 27 Wis. 142, 9 Am. Rep. 449, holding there was no presumption of ratification from silence of wife as to unauthorized act by husband claiming to act as her agent.

Evidence.- Letter, part of the res gestæ, held properly admitted p. 539.

Cited in Ellis v. Dempsey, 4 W. Va. 128, admitting declarations of party when about to start to commit the trespass, as part of the res gestæ.

Miscellaneous.— Apparently miscited in The Pirate, 32 Fed. 490, and dissenting opinion, State v. Morgan, 28 La. Ann. 493.

1 Black, 541-565, 17 L. 232, UNITED STATES v. VALLEJO.

Public lands.- California grant of public land, under Mexican regime, must be made with reference to Mexican laws of 1824 and 1828, p. 552.

Reaffirmed in Bouldin v. Phelps, 12 Sawy. 306, 308, 30 Fed. 556, 557. Cited and principle applied in Co. Commrs., etc. v. Cen. Col. I. Co., 2 Colo. 634, holding void Mexican grant becomes valid by virtue of confirmatory statute; Owen v. Presidio Min. Co., 61 Fed. 13, 13 U. S. App. 248, the making of a grant of land by an official of Chihuahua raises no presumption of authority to do so, if made after colonization law of 1825 was adopted.

Public lands-California grants.- Spanish law of 1813, relating to grants of public land, was repugnant to Mexican law of 1824 and 1828, and repealed by them, p. 553.

Cited in United States v. Workman, 1 Wall. 762, 17 L. 711, holding that governor of California had no power to make a valid. grant of the mission of San Gabriel; United States v. Vigil, 13 Wall. 452, 20 L. 605, holding that departmental assemblies had no power

under laws of Mexico to give away public domain, except for settlement or cultivation; Hayes v. United States, 170 U. S. 654, 42 L. 1181, 18 S. Ct. 742, holding that territorial deputation of New Mexico had no authority to make grant; Grant v. Jaramillo, 6 N. Mex. 323, 28 Pac. 511, holding defendant's claims to be of an inchoate character, and should be determined by the political department.

Distinguished in Ely v. United States, 171 U. S. 230, 18 S. Ct. 845, where the new sovereign retained the local officers, and the money was paid into its treasury; Los Angeles F. & M. Co. v. Thompson, 117 Cal. 599, 49 Pac. 715, holding decree of confirmation of grant from Mexican governor cannot be collaterally assailed for want of authority.

Public lands.- California grant to Vallejo refused confirmation because there was no record evidence to support the claim, p. 555.

Cited and principle applied in Romero v. United States, 1 Wall. 745, 17 L. 633, refusing to confirm grant in absence of record, though parol evidence was very strong; Bouldin v. Phelps, 12 Sawy. 327, 30 Fed. 569, holding grant void for lack of record evidence; Muse v. Arlington Hotel Co., 68 Fed. 642, 650, holding no title was conveyed in the absence of an actual survey and the filing of a copy thereof.

Miscellaneous.- Hutton v. Frisbie, 37 Cal. 484, cites dissenting opinion of Grier, condemning the confiscation consequent upon rejection of grant, and construing act of 1893 strongly in favor of holders under rejected grant. Cited in dissenting opinion in Ather ton v. Fowler, 96 U. S. 520, 24 L. 734.

1 Black, 566-573, 17 L. 188, INBUSCH v. FARWELL.

Courts. Federal jurisdiction is not defeated by suggestion that other parties are jointly liable, provided it appears that they are out of the jurisdiction of the court, but judgment will not conclude parties not regularly served, or not voluntarily appearing, p. 571.

Cited and principle affirmed in Liverpool, etc., Nav. Co. v. Agar, 4 Woods, 203, 14 Fed. 616, holding that court of the United States has jurisdiction of suit by alien against commercial partnership domiciled in Louisiana, one partner being an alien; Noyes v. Barnard, 63 Fed. 787, 15 U. S. App. 527, holding plaintiff need not join as parties, persons who could not be served; Allnut v. Lancaster, 76 Fed. 133, holding like cited case; Smith v. Consumers' CottonOil Co., 86 Fed. 362, 52 U. S. App. 608, in action against a firm, one of the members, citizen of same State as plaintiff, may be dismissed and action continued against the others; Ober v. Gallagher, 93 U. S. 205, 23 L. 831, holding, under act of 1839, service of citizen of another State, within district where suit was begun, brought him within the jurisdiction of the court; Walker v. Windsor Nat. Bank, 56 Fed. 79, 5 U. S. App. 423, where court obtains full jurisdiction

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of all the defendants, a subsequent discontinuance as to one of them, entitles the others to a dismissal; Johnston v. Mathews, 32 Md. 368, in attachment against absconding partner, for recovery of a partnership debt, the other member of the firm having been returned summoned," the assets of the firm cannot be attached; Rhodes v. Amsinck, 38 Md. 355, in case of proceeding in invitum on a partnership creditor, judgment may be recovered against a single partner to bind the firm and its effects; Smith v. Ford, 48 Wis. 145, 2 N. W. 151, holding court's jurisdiction to bind parties does not depend upon the presence before it of all persons who are proper parties to the suit. Cited, without particular application, in Worthley v. Goodbar, 53 Ark. 4, 13 S. W. 217. Cited in dissenting opinion in Barney v. Baltimore, 6 Wall. 291, 18 L. 828, majority dismissing bill for partition of tenancy in common, where co-tenants could not be subjected to the jurisdiction of the court.

Distinguished in Barney v. Baltimore, 6 Wall. 286, 18 L. 827, dismissing bill for partition of tenancy in common, where co-tenants could not be subjected to the jurisdiction of the court; Conolly v. Wells, 33 Fed. 209, sustaining demurrer to bill for non-joinder of an indispensable party; Norris v. McCanna, 29 Fed. 761, holding question of partnership should not have been submitted to jury.

Partnership property must first be used to satisfy partnership debts, p. 573.

Cited in Bartlett v. Meyer-Schmidt G. Co., 65 Ark. 293, 45 S. W. 1064, holding preference, by insolvent firm, of a debt of a member of the firm, is a fraud upon the firm's creditors.

Attachment bond is regarded as a substitute for the property released, and a judgment that would have bound such property will bind the attachment sureties; accordingly, where suit against A., B. and C., partners, is dismissed as to A. and B. for want of jurisdiction, and judgment taken against C., the sureties are bound, pp. 573, 574.

Cited and principle applied in Lehman v. Berdin, 5 Dill. 347, F. C. 8,215, if attachment is not sustained, plaintiff cannot resort to bond to compel payment of judgment; Storrs v. Engel, 3 Hughes, 420, F. C. 13,494, holding that the assignee in bankruptcy could proceed upon any one of the several bonds; Rosenbaum v. Goodman, 78 Va. 131, holding sureties on appeal bond, not primarily bound, along with surety, on replevin bond; Jayne v. Platt, 47 Ohio St. 275, 21 Am. St. Rep. 817, 24 N. E. 266, holding sureties on attachment bond are concluded by the judgment.

1 Black, 574–582, 17 L. 107, THE PROPELLER COMMERCE. Admiralty jurisdiction extends to navigable waters which empty into the sea, or bays and gulfs forming a part thereof, and includes cases of collision, depredation and seizures, p. 579.

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