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The Leopard.

years from the October after the passage of the act. In 1836, an act was passed extending the time for establishing the ferry to 1837, and under this act the ferry was put in operation. The company having become embarrassed, a suit was commenced against them by a creditor, upon which, in Dec., 1838, judgment was obtained, and the franchise was seized on the execution and sold on the 7th of March, 1839, to Wm. M. Rogers, for the term of one hundred years, to satisfy the judgment; and Rogers, by his deed of January 26, 1841, conveyed the same to the libellants, who thus became the owners of the franchise, for the term of time mentioned. It is not denied that the corporation, having by a special act of the legislature been created for this express purpose, might well establish and maintain a ferry without a license from the County Commissioners, the act itself constituting a license until the franchise should be forfeited, surrendered, or lost, in some mode known to the law. The question is whether this authority passed by the sale on the execution to the purchaser of the franchise, and might by him be assigned to the libellant. In the case of The Maverick, reported in the 5th Law Reporter, 106, the question arose whether a license to keep a ferry was assignable under the laws of Massachusetts. The Court held that it was not. The person who keeps the ferry must have the license. It is a personal trust reposed in him, upon the confidence entertained in his qualifications and fitness for the trust. The whole community have an interest in the character of persons who keep public ferries, which all travellers are obliged to use, and that none should be al'lowed to keep them but men of sober habits, and such as will be careful and attentive to the safety of those who are obliged to use them. The law, therefore, for the common benefit of all, requires that no one shall keep such a ferry until he has been approved and has obtained a license for that purpose from the prudential Court of the county within which the ferry is. The law of Maine appears to be a transcript of that of Massachusetts, having been reënacted in the

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revision of the laws in 1821, and again incorporated into the Revised Statutes.

The only distinction in this point, between case of The Maverick and the present case, is, that in the former the ferry was kept under a license from the Court of Sessions, and in this it is kept under a special act of the legislature, granting the franchise, and with it the authority to maintain a ferry, to the corporation. But, looking to the general policy of the law with respect to ferries as well as to the special provision of this act, the franchise granted must be considered as clothed with a trust, or at least subject to certain duties to be performed on their part. By the 4th section of the act, the corporation are required to keep good boats and in good repair, suitable and convenient for the accommodation of passengers, and to cause ready and due attendance to be given at all times; and for the neglect of any of these duties, they are subjected to penalties provided by the act. The corporation are bound themselves to keep up the ferry and manage it by their own servants. It would hardly be contended that the corporation, by their own voluntary act, could have transferred with the franchise a right to keep up this ferry without any supervision or control on the part of the County Commissioners. Before the purchaser could have kept the ferry, he would be obliged to obtain the approbation and license of the prudential tribunal of the county, which the law has clothed with the authority of supervising and controlling the management of public ferries, and whose duty it is to take care that they are kept by suitable and proper persons. If this would be the case in a voluntary sale, it seems to me that the same reasons apply with equal force to a forced sale under the legal process. Otherwise the policy of the law may be defeated, and a ferry may fall into the hands of a person entirely unfit to be entrusted with its management. It appears to me therefore that the purchaser, before he can legally keep the ferry, must obtain a license from the County Commissioners. If this be a correct view of the law, then

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the case of The Maverick is precisely in point, and this objection is fatal to the suit.

But, independent of this consideration, I am not satisfied that upon the general principles of the law of the sea, this suit can be maintained upon the evidence. The rules of the maritime law on the subject of collision are founded in common sense, and have for their object the general security and convenience of navigation. The general principle is this: when two vessels are under sail in such directions that, if both hold on their course, there may be danger of their coming in collision, the vessel that has it most in her power to vary her course and keep out of the way, is bound to do so. If she does not, and a collision ensues, she is liable for the damage. Thus, a vessel that is sailing before the wind, or with a fair wind, is bound to give place to another that is close hauled to the wind, because she has more control over her own motions and can more easily change her course. But a steamboat, that is not moved by the wind, and has her motive power within herself and entirely subject to her control, which can at pleasure be moved backward or forward, and can stop her motion altogether, has her movements more under her control than any vessel that is moved by the wind. It is always in her power to avoid a collision, if she is managed with ordinary skill and prudence, when it may be entirely out of the power of a vessel that is moved by the wind and currents and must go where they carry her. For this reason, when steamboats came into use in the business of navigation, it was decided by the maritime Courts, not by making a new rule of law, but by the application of an old and existing rule to a new species of vessel, that a steamboat is to be treated always as a vessel sailing with a fair wind, and is in all cases bound to give way to a vessel that is moved by sails. The Shannon, 2 Haggard Adm. R. 173. The Steamboat Portland, U. S. D. C. for Massachusetts, quoted 3 Kent's Comm. 231, vol. 3, 4th edit. On this ground it was decided in a recent case by the District Court of the

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United States for the Southern District of New York, that the rule of the maritime law relative to vessels with sails, viz: that the vessel having the wind must bear away for one that is sailing on the wind, does not apply between steamboats and vessels with sails, but that a vessel moved by steam must in all cases give way to a vessel moved by sails. In that case a vessel having a fair wind, in conformity with the old rule, bore away for the boat, and by that means, through the inadvertence of the master of the boat, a collision took place, and the vessel was damaged. The Court ruled that the vessel was in fault for not holding on her course, and consequently could not recover against the boat.

The decision in that case applies precisely to the case at bar. The schooner held on her course; and it was entirely in the power of the boat to have stopped her motion or changed her course so as to have avoided the vessel. And on the principle that has been repeatedly recognized by the maritime Courts, both of this country and of England, the collision must be considered as resulting from the fault of the boat, and consequently no action can be maintined by the owners for the damage.

Libel dismissed.

The Hull of a New Ship.

THE HULL OF A NEW SHIP.

When the local law gives a lien to material men and mechanics, for their demands against a ship, it may be enforced in the admiralty.

All the privileged creditors may unite in one libel, or if a libel has been filed by any one separately, then others may come in by petition and make themselves parties to the suit.

A valid contract of hypothecation may be made not only of things which the party has at the time of the contract, but of what he expects to have, and of things not then in existence. It will attach to, and find, the party's interest in the thing as soon as it comes into being.

A ship builder, before he commenced building the vessel, entered into a contract with a merchant by which he hypothecated the vessel to be built, for advances.

This was held to be a valid hypothecation of the builder's interest in the vessel, and to give a lien upon it.

By a statute of Maine, material men and mechanics have a lien on vessels for materials and labor employed in making it, which has precedence over the claims of all other creditors. The lien created by the contract of hypothecation was postponed to those of the material men and laborers.

Nor was the hypothecary creditor subrogated to their privilege, merely by paying their claims on orders drawn by the builder.

But when he actually furnished materials, he was allowed to claim concurrently with them.

When a creditor transfers his debt, the assignment of the debt carries with it all the accessory obligations, as pawns, hypothecations, or sureties by which the debt is secured.

But where a creditor has a debt due to him on a single contract or obligation, he cannot divide it by assigning part to one and part to another so as to enable each assignee to maintain a separate action without the assent of the debtor.

September Term, 1842. This was a libel by Richard Abbot, a carpenter, against the hull of a new ship, for work and labor performed by him in building her. She was launched March 31, 1842, and the libel was filed the next

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