$32,000, to which amount their liability was accordingly limited. A stipulation for that amount was thereupon given by sufficient sureties, with the condition that the claimants would perform the final order and decree in the case, or that execution might issue against the goods, lands, and tenements of the stipulators wherever found.

On the trial before the district court a decree was entered for the claimants, and the libel dismissed. On appeal, the circuit court reversed the decree, and adjudged that the libelants and petitioners were entitled to recover certain specified sums, which, in the aggregate, exceeded the $32,000; that the stipulators should pay that amount into the registry of the court, and that the clerk, after deducting the costs of the circuit and district courts, should pay the balance to the libelants and petitioners pro rata; that is, in proportion to their respective claims as allowed. From this decree the claimants have appealed to this court. Subsequently the libelants and petitioners applied to the circuit court for a further decree, directing the claimants to pay interest on the amount of the stipulation from its date, and the costs of the district and circuit courts, but the application was refused. From this refusal they have appealed to this court.

The circuit court having found the facts respecting the collision, our examination will first be directed to a consideration of their sufficiency to sustain the decree. The findings, under the act of February 16, 1875, have the same effect as a special verdict in an action at law. 18 St. c. 77; The Adriatic, 107 U. S. 512, 2 Sup. Ct. Rep. 355. The bills of exception of the claimants in the record embrace only the refusal of the court below to find certain propositions of law, which can as well be presented to the court upon the present findings.

The findings of fact, with the facts admitted by the pleadings, disclose the following case: On the evening of February 26, 1883, the Maggie J. Smith, a three-masted schooner steamer, under sail only, ran into and sunk the threemasted schooner Enoch Robinson off the coast of New Jersey. The night was clear and starlight; the wind was about north-west, and blowing a whole-sail breeze, and the sea was smooth. The Smith was on a voyage from New York to Newport News, Virginia; her course was south-west; her first mate, and her engineer, who was acting as second mate, were on deck; one man was at the wheel, and another was stationed forward on the lookout; her regulation lights were set; and she had the wind on her starboard side. The Enoch Robinson was on a voyage from Baltimore to Providence, Rhode Island, with a cargo of coal. When the Maggie J. Smith was first seen by those on board the Robinson, the latter vessel was on her regular course, heading north-east, and had the wind on her port. Her regulation lights were set and burning brightly; her master and second mate were on deck; a competent seaman was on the lookout forward on the top-gallant forecastle; and one was at the wheel. The court finds that when the vessels were first seen from each other, they were about two miles apart; that they were approaching each other "end on, or nearly so, and on courses involving risk of collision;" that the wheel of the Robinson was put to port almost immediately after the position of the Smith was discovered, and that the Smith starboarded her wheel, and that this starboarding was the direct cause of the collision. The court also finds that when those in charge of the Robinson perceived that the Smith was falling off, and that the vessels were approaching in dangerous proximity, they put the wheel of the Robinson hard a-port, and let go the spanker-sheet; and that a few seconds before the collision the wheel of the Smith was first put to port, and then hard a-port, but the head sheets were not let go, and before the changes to port materially affected the course of the Smith the two vessels came together, the Smith striking the Robinson a square blow on the port side near the mizzen rigging. And the court finds as a conclusion of law, that the Smith was in fault in not porting

her wheel when the Robinson was first seen approaching her end on, or nearly end on, and was in fault for putting her wheel to starboard, and that this was the immediate cause of the collision.

Upon these findings, there could be but one conclusion as to the liability of the Smith under the sixteenth rule of navigation adopted by congress, which is as follows: "If two sail vessels are meeting end on, or nearly end on, so as to involve risks of collision, the helms of both shall be put to port so that each may pass on the port side of the other." Rev. St. 817.

Three cases in this court are cited by the counsel for the libelants in which this rule has been applied under circumstances not materially different from those in the present case: The Nichols, 7 Wall. 656; The Dexter, 23 Wall. 69; and The Annie Lindsley, 104 U. S. 185. In the case of The Nichols, a schooner and a bark sailing on Lake Erie in nearly opposite directions came into collision by which the schooner was sunk. Each vessel was seen from the other, when two or three miles apart. The schooner had the wind free and on her starboard side; the bark was close-hauled, with the wind on her port side. The vessels approached each other on lines that diverged not more than half a point, and at a combined speed of 12 miles an hour. The schooner starboarded her helm; the bark ported. The owner of the schooner filed a libel against the bark, but the court held that the schooner had violated the rule of navigation in not porting also, and therefore the owner had no claim for damages.

In the case of The Dexter, two schooners came into collision on Chesapeake Bay, by which one was totally lost. When within a half mile of each other, they were approaching from opposite directions, end on, or nearly so. One ported and the other starboarded. It was held that the latter, which was lost, had violated the rule of navigation, and therefore was in fault, and that her owner could not maintain a libel for damages; and the libel filed by him was accordingly dismissed.

In the case of The Annie Lindsley, there was a collision on Long Island sound between a brig and a schooner, which resulted in the sinking of the schooner and the total loss of the vessel and cargo. The two vessels approached each other nearly end on, on courses involving risk of collision; the schooner put her helm to port; the brig put her helm to starboard, thereby violating the sixteenth rule of navigation, and a collision followed. It was held that the brig was liable for the loss.

Some reliance was placed by claimants' counsel on the twenty-fourth rule, which provides that, in construing and obeying the rules of navigation, "due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case, rendering a departure from them necessary in order to avoid immediate danger." Important as this qualification of the rules is, it has no application to the case at bar, where the vessels saw each other about two miles apart. It applies only where there is some special cause rendering a departure necessary to avoid immediate danger, such as the nearness of shallow water, or a concealed rock, the approach of a third vessel, or something of that kind.

The contention that if the Smith starboarded her helm when the two vessels, though approaching each other end on, or nearly so, were about two miles apart, her fault is not such as to make her responsible for the damages claimed, does not require consideration, for there is nothing in the record to show that when the Smith starboarded her helm the vessels were that distance apart. It is not stated what the distance then was, nor is the speed of the vessels given, from which such distance could be estimated. The contention assumes, without any foundation, that the vessels were then about two miles apart. The libel alleges that the vessels were running red to red three or four minutes before the Smith fell off her course and showed both her lights; and the answer states that the vessels had been in sight of each other some time v.8s.c.-11

when the Smith starboarded her helm, and that the vessels were then from a quarter to a half mile apart.

Nor is there anything in the position that, where two vessels are approaching in opposite directions, so as to involve risk of collision, and one of them violates a rule of navigation in directing its helm, and the other vessel sees it, she will be in fault if she does not also turn her helm so as to avoid the consequences of such departure from the rule. Whether it would have been more prudent for the Robinson to take a different course in consequence of the dangerous position in which she was placed by the disregard of the statutory rule on the part of the Smith, must depend upon the angle at which the vessels were approaching, their distance apart at the time, and their combined speed,-circumstances not disclosed in the record. The rule is well stated by counsel, that "if one vessel is brought into immediate jeopardy by the fault of another, the fact that an order other than that which was given might have been more fortunate will not prevent the recovery of full damages;" or, as stated by the court of appeal of England, in the case of The Bywell Castle, L. R. 4 Prob. Div. 219, as quoted in the case of The Elizabeth Jones, 112 U. S. 516, 5 Sup. Ct. Rep. 468: "Where one ship has, by wrong maneuvers, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been maneuvered with perfect skill and presence of mind."

As to the second appeal from the refusal to allow interest against the claimants upon the amount of the stipulation from the day it was filed in court, and the costs of the circuit and district courts, it is sufficient to say that the allowance of such interest and costs rested in the discretion of the court below, and its action will not be disturbed on appeal. Decree affirmed.


(November 21, 1887.)


An action was originally brought for 135 head of steers of the value of $6,000, but before judgment a settlement as to a part of them was had, and the remainder were sold for less than $5,000. Held, the supreme court of the United States had no jurisdiction to hear the cause.

In Error to the Circuit Court of the United States for the Northern District of Illinois.

On motion to dismiss.

A. McCoy, for the motion. R. A. Child, in opposition.

WAITE, C. J. This motion is granted on the ground that the record shows that the value of the matter in dispute does not exceed $5,000. The suit was brought originally to recover 135 head of Colorado steers, alleged to be worth $6,000. At the time of the judgment only 79 head were in dispute. As to the rest, a settlement had been made during the pendency of the suit. The court has found as a fact that the 79 head were sold in open market the day after they were taken possession of under the writ in this case, and that the net proceeds of the sale only amounted to $4,526.15. There is nothing to show that they were really any less valuable at the time of the sale than when they were taken. Upon the facts as found, the recovery could not have exceeded $5,000, if there had been a judgment in favor of Cox, the plaintiff in error. Dismissed.


(November 7, 1887.)


A pay-master in the navy, having served in that capacity since February 1, 1868, in the adjustment of his claim for the benefits of the longevity act of March 3, 1883, (22 St. 473,) claimed the application of its provisions to "longevity increment of his 33 per cent. of salary allowed in lieu of fuel, quarters, etc., under navy general order No. 75 of May 23, 1866." Should such claim be allowed, said increment would be larger, as the salaries under said act were increased. Held, that the statute of March 3, 1883, could not be so interpreted. The allowances provided for in the general order of 1866 constituted no part of the pay proper of the officers, and were designed to meet certain expenses which they would necessarily incur in the discharge of their duties; they could not be increased by the additional compensation allowed by the act of 1883.

Appeal from the Court of Claims.

Atty. Gen. Garland, Asst. Atty. Gen. Howard, and F. P. Dewees, for appellant. John Paul Jones and Robt. B. Lines, for appellee.

HARLAN J. The appellee is a pay-master in the navy, having served in that capacity since February 1, 1868. In the adjustment of his claim for the benefits of what is known as the longevity act of March 3, 1883, (22 St. 473,) the accounting officers of the treasury deducted the sum of $1,112.75, the amount paid the claimant under general order No. 75, issued by the secretary of the navy, under date of May 23, 1866, in relation to allowances "for rent of quarters, or to pay rent for furniture, or for lights and fuel," etc. The object of the order, as appears upon its face, was to establish a fixed rate of compensation in lieu of the extra allowances prohibited by the act of March 3, 1835, (4 St. 753,) which last act was repealed by that of April 17, 1866, (14 St. 33, 38.) That order made an allowance to officers not provided with quarters on shore stations of "a sum equal to 333 per centum of their pay in lieu of all allowances, except for mileage and traveling expenses under orders; and those provided with such quarters, 20 per centum of their pay in lieu of said allowances." It also stated: "The act of March 3, 1865, having increased the pay of midshipmen and mates, the allowances hereby authorized will not be extended to them."

The findings of fact further state that "said accounting officers refused, in the settlement of said claim, [under the act of 1883,] to allow claimant the further sum of $206.04, which said amount would have accrued to him if he had been credited, at that time, with his service prior to the date of his commission as paymaster." The court below, following the decision in U. S. v. Philbrick, 120 U. S. 52, 7 Sup. Ct. Rep. 413, which sustained the validity of the said general order, held the deduction of $1,112.75 to be unauthorized by law; and, without considering the merits of the question made as to the item of $206.04, adjudged-upon the ground that, in its opinion, the decision in Philbrick's case required it to be done-that the appellee should also have been allowed the latter sum in the settlement of his claim under the act of 1883. It is possible that the findings in Philbrick's case, although very meager and obscure, involved the question now presented. But no such point was suggested by counsel, and it was not considered by this court. The only question actually disputed in that case was as to the validity of general order No. 75; and this court was led to believe that if that order was sustained as a proper exercise of authority by the secretary of the navy, the affirmance of the judgment below would follow as a matter of course.

We are not at all certain from the pleadings and findings in the present case what is the precise question raised in respect to the item of $206.04. The act of March 3, 1883, provides that "all officers of the navy shall be credited with the actual time they may have served as officers or enlisted men in the

regular or volunteer army or navy, or both, and shall receive all the benefits of such actual service, in all respects, in the same manner as if all said service had been continuous and in the regular navy in the lowest grade having graduated pay held by such officer since last entering the service: Provided, that nothing in this clause shall be so construed as to authorize any change in the dates of commission or in the relative rank of such officers: provided further, that nothing herein contained shall be so construed as to give any additional pay to any such officer during the time of his service in the volunteer army or navy." 22 St. 473, c. 97. The question which counsel for the appellee contend is presented by the record is whether appellee is entitled, in the settlement of his account under the act of of 1883, "to the longevity increment of his 333 per cent. of salary allowed in lieu of fuel, quarters, etc., under navy general order No. 75, of May 23, 1866." It is perfectly clear, they argue, that if the act of 1883 had been in force in 1866 the salary of appellee would have been larger than it actually was by reason of the credit for prior service which the act of 1883 now directs to be given to them; that is, their salaries being larger, the 333 per cent. allowance would have been correspondingly larger, and they should now receive the difference in that item.

We do not concur in this interpretation of the statute. The allowances provided for in the general order of 1866 were made pursuant to rules and regulations established for the apportionment from time to time of sums appropriated in gross by congress for specific objects connected with the naval service. They constituted no part of the pay proper of officers, and were designed to meet certain expenses they would necessarily incur in the discharge of their duties. The secretary used their regular pay simply as a basis upon which to calculate the percentage allowed for commutation of quarters, etc. That percentage is to be ascertained by reference to the amount statedly received by the officer, as statutory pay, at the time general order No. 75 was in force, and is not to be increased by the additional compensation allowed by the act of 1883, as the result of giving him the benefits of actual service, as if it "had been continuous and in the regular navy in the lowest grade having graduated pay held by such officer since last entering the service." These views lead to a reversal, with directions to enter judgment in favor of the claimant, only for the sum of $1,112.75.

It is so ordered.

Ex parte AYERS. Ex parte ScOTT. Ex parte MCCABE.
(December 5, 1887.)


In determining whether a suit is within the prohibition of the eleventh amend ment to the constitution of the United States, which provides that the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of a foreign state, reference must be had to the real party in interest, and not merely to the parties to the record.


Virginia act of May 12, 1887, provided that all taxes due the commonwealth, in payment of which what purported to be coupons of state bonds had been offered, and, on refusal to accept, not otherwise paid, should be recovered in a suit to be instituted in the name of the commonwealth; that the treasurers of the counties and cities should return to the auditor of the state the names of such delinquents; and that the attorneys of the commonwealth should thereupon institute the suits to recover. An action was brought in the circuit court of the United States by a citizen of England against the attorney general, and the attorneys and treasurers of the various counties and cities, as parties defendant, to enjoin them from proceeding under the act. Held, that this was an action against the state of Virginia, she being the real party in interest, though not nominally a party to the record, and as

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