ernment, and not the claimant, and to prevent | the gentlemen, that they must fight it out
frauds upon the Treasury. Bailey v. United in the courts of New Jersey, and that this
States, 109 U. S. 432 [27: 988]; Hobbs v. court will follow the final decision that may
McLean, 117 U. S. 576 [29: 944]; Freed- be rendered there.
Hence this mat-
man's Saving & T. Co. v. Shepherd, 127 U. ter will be suspended until such time as the
S. 494, 506 [32: 163, 168]. There was no Comptroller may be put into possession of
purpose to aid those who had claims for the final decree, either of the New Jersey
mcney against the United States in disre- chancery court, or such court as may have
garding the just demands of their creditors. appellate jurisdiction therefrom." Even if
We perceive nothing in the words or object it be true that the final order of the state
of the statute that prevents any court of court in relation to the money in question
competent jurisdiction as to subject-matter would not impose any legal duty upon the
and parties from making such orders as may officers of the Treasury, it does not follow
be necessary or appropriate to prevent one that the order of court appointing the re-
who has a claim for money against the gov-ceiver would be null and void, as between
ernment from withdrawing the proceeds of
such claim from the reach of his creditors;
provided such orders do not interfere with
the examination and allowance or rejection
of such claim by the proper officers of the
government, nor in anywise obstruct any ac-
tion that such officers may legally take un-
der the statutes relating to the allowance or
payment of claims against the United States.
If a court, in an action against such claim-
ant by one of his creditors, should, for the
protection of the creditor, forbid the claim-
ant from collecting his demand except
through a receiver who should hold the pro-
ceeds subject to be disposed of according to
law under the order of court, we are unable
to say that such action would be inconsist-
ent with section 3477. It may be that the
officers charged with the duty of allowing
or disallowing claims against the govern-
ment are not required to recognize a receiver
of a claim appointed by a court, and may, if
the claim be allowed, refuse to make pay-
ment except as provided in section 3477.
Upon this subject, the Second Comptroller
of the Treasury, in his opinion, rendered
[424]July 11th, 1894, construing the act of Feb-
ruary 23d, 1891, and in which he held that
Price was entitled to receive, in his lifetime,
whatever sum was found to be due him on
the adjustment of his accounts, but if he
died before such adjustment was made his
heirs would take, not by virtue of the act of
Congress, but according to the laws of de-
scent at the domicil of the deceased, said: "I
do not presume for a moment that the chan-
cery court of New Jersey could issue an exe-
cution and compel payment of this money,
nor could any of its powers be brought to
bear to compel, without at least additional
legislation by Congress, the Comptroller to
pay its judgment; but while that is true,
yet, on the other hand, the Comptroller, so
far having awaited the adjudication of that
chancery court, ought to abide by the result
of that litigation, and await a final adjudica-
tion and certification of the amount, as to
who are entitled under the laws of that state.
This comes more from comity, and from a
disposition on the part of the Treasury offi-
cers to obey the laws of the land, and to
help to enforce the decrees of the courts that
have jurisdiction over matters in litigation
of this kind, than from any actual authority
that a court may have over the Comptroller
to compel him to make payment. In con-
clusion, then, the Comptroller will not at
this time act in this matter, but will say to

those who are parties to the cause and who
are before the court.

It only remains to say touching this part
of the case that if section 3477 does not em-
brace the passing or transfer of claims to
heirs, devisees, or assignees in bankruptcy,
as held *in Erwin v. United States, nor a vol-[425]
untary assignment by a debtor of his effects
for the benefit of his creditors, as held in
Goodman v. Niblack, it is difficult to see
how an order of a judicial tribunal having
jurisdiction of the parties appointing a re-
ceiver of a claim against the government
and ordering the claimant to assign the
same to such receiver to be held subject to
the order of court for the benefit of those
entitled thereto, can be regarded as prohib-
ited by that section.

2. Were the heirs of Rodman M. Price entitled upon his death, by virtue of the act of February 23d, 1891, to such balance as then remained to his credit in the Treasury of the United States on the adjustment made of his accounts under that act? If they were so entitled, then the final judgment of the court of errors and appeals affirming the judgment of the chancery court denied to the plaintiffs in error a right specially set up and claimed by them under the above act; and therefore the jurisdiction of this court to re-examine that final judgment cannot be doubted. Rev. Stat. U. S. § 709.

The plaintiffs in error insist that Emerson v. Hall, 13 Pet. 409, 413, 414 [10: 223, 225, 226], is decisive in their favor. Although this contention is not without some force, we are of opinion that the judgment in that case does not control the determination of the present case. Emerson, surveyor, Chew, collector, and Lorrain, naval officer, at the Port of New Orleans, having seized a brig for a violation of the laws prohibiting the importation of slaves, instituted proceedings that resulted in the condemnation of such vessel and slaves. It had been previously decided in the Josefa Segunda, 10 Wheat. 312 [ 6: 329], that the proceeds could not be paid to the custom-house officers, but vested in the United States. Emerson and Lorrain having died, Congress, on the 31st day of March, 1831, passed an act entitled "An Act for the Relief of Beverly Chew, the Heirs of William Emerson, Deceased, and the Heirs of Edward Lorrain, Deceased." That act directed the proceeds in court to be paid over to the said Beverly Chew and "the legal representatives" of Emerson and Lorrain, respectively. The question was

whether the Emerson part of the proceeds | March 3d, 1831, was passed, and therefore belonged to his heirs, or were assets primar- Congress must have had in mind the question [426]ily liable for his debts. This court, after whether the Emerson and Lorrain portions observing that Emerson had not acted un- of the money on deposit in court should be der any law, nor by virtue of any authority, given to their respective heirs or not. And and that his acts imposed no obligation, legal the question was solved as indicated by the or equitable, on the government to compen- preamble to that act. The preamble dissate him for his services, said: "Had Em- tinctly shows that Congress had in view the erson become insolvent and made an assign- heirs, and not those who would administer ment, would this claim, if it may be called the estate of the two persons whose meritora claim, have passed to his assignees? We ious services were recognized. Although think, clearly, it would not. Under such an preamble has been said to be a key to open assignment, what could have passed? The the understanding of a statute, we must not claim is a nonentity. Neither in law nor in be understood as adjudging that a statute, equity has it any existence. A benefit was clear and unambiguous in its enacting parts voluntarily conferred on the government; may be so controlled by its preamble as to but this was not done at the request of any justify a construction plainly inconsistent officer of the government, or under the sanc- with the words used in the body of the stattion of any law or authority, express or im- ute. We mean only to hold that the preamplied. And under such circumstances, can ble may be referred to in order to assist in a claim be raised against the government, ascertaining the intent and meaning of a which shall pass by a legal assignment, or statute fairly susceptible of different congo into the hands of an administrator as as-structions. United States v. Fisher, 2 sets? A claim having no founda- Cranch, 358, 386 [2: 304, 313]; United tion in law, but depending entirely on the States v. Palmer, 3 Wheat. 610, 631 [4: 471, generosity of the government, constitutes no 477]; Beard v. Rowan, 9 Pet. 301, 317 [9: basis for the action of any legal principle. 1351;. Church of Holy Trinity v. United It cannot be assigned. It does not go to the States, 143 U. S. 457, 462 [36: 226, 229]; administrator as assets. It does not descend Coosaw Mining Co. v. South Carolina, 144 to the heir. And if the government, from U. S. 550 [36: 537]. In Emerson's Case the motives of public policy, or any other con- decision was placed partly on the ground siderations, shall think proper, under such chat the title of the act of 1831 indicated circumstances, to make a grant of money to that Congress, in using the words "legal the heirs of the claimant, they receive it as representatives" in the body of the act, had a gift or pure donation-a donation made it in mind the heirs of Emerson and Lorrain, is true in reference to some meritorious act and not technically their personal represenof their ancestor, but which did not consti- tatives. It is a fact not without significance tute a matter of right against the govern- *that the money awarded by the above act of[428] ment. In the present case, the government 1831 did not replace any moneys taken by might have directed the money to be paid to Emerson and Lorrain from their respective the creditors of Emerson, or to any part of estates for the benefit of the government. his heirs. Being the donor it could, in the They had only rendered meritorious personal exercise of its discretion, make such distribu- services for the public upon which no claim tion or application of its bounty as circum- of creditors could be based, but which servstances might require. And it has, under ices Congress chose to recognize by making the title of an act, for the relief of the a gift to the heirs. This was substantially heirs of Emerson,' directed, in the body of the view taken of the case of Emerson v. Hall, the act, the money to be paid to his legal in the recent case of Blagge v. Balch, 162 U. representatives. That the heirs were in- S. 439, 458 [40: 1032, 1036]. tended by this designation is clear; and we think the payment which has been made to them under this act has been rightfully made, and that the fund cannot be considered as assets in their hands for the payment of debts." [427] *Now it is said that the grounds upon which in Emerson v. Hall the claim of the heirs was sustained exist in the present case; that Price did not act under any law, nor in virtue of any authority, and that his acts imposed no obligation in law or equity upon the government that could have been enforced even if suit could have been maintained against it. And the conclusion sought to be drawn is that Congress must have intend-gress to think of making any provision for ed by the act of 1891, as it was held to have intended by the act in Emerson's Case, to legislate for the benefit of the heirs or next of kin of the decedent and not for his personal representatives. But there were other facts in the Emerson Case which placed that case upon peculiar grounds. Emerson and Lorrain were both dead when the act of

The case before us differs from the Emerson Case by reason of circumstances which we must suppose were not overlooked by Congress when it passed the act of 1891. By advancing to Van Nostrand seventy-five thousand dollars to be used for the government, Price's ability to meet his obligations to creditors was to that extent diminished. As he had acted in good faith, and in the belief that he was promoting the best interests of the government, the purpose of Congress was to make him whole in respect of the amount he had in good faith advanced to his successor for public use. He was then alive, and there was no occasion for Con

those who might be his heirs. We think that the legislation in question had reference to his financial condition, and there is no reason to suppose that Congress intended that the amount, if any, found due him upon the adjustment of his accounts should not constitute a part of his absolute personal estate, to be received and applied in the

event of his death by his personal representative as required by law.

Something was said in argument which implied that Price had wrongly resisted the collection of the Forrest claim and judg ment. It is proper to say that so far as the record speaks on that subject, the course of the deceased was induced by the belief on his part that it was a claim which he was not bound in law or justice to pay. Our conclusion does not rest in any degree upon the character of that claim, but entirely upon questions of law arising out of matters that were concluded, so far as this court is concerned, by the action of the state court, and which we have no jurisdiction to review.

We find in the record no error of law in respect of the Federal questions presented for consideration, and therefore the decree below must be affirmed.

We concur with the state court in the view that the act of 1891 was not intended to confer a mere gratuity upon Price, but was a recognition of a moral and equitable, if not legal, obligation upon the part of the government to restore to him moneys advanced in the belief at the time that they would be repaid to him in the settlement of his accounts as a disbursing officer; and that the use of the words "or his heirs" in the act was not to make a gift to the heirs of such sum as upon the required adjustment of his accounts was found to be due their encestor, and thereby exclude his creditors [429] from all interest in that sum, but to provide against the contingency of death occurring before the adjustment was consummated, and thus to make it certain that the right to have his accounts credited with the amount paid to Van Nostrand, upon principles of "equity and justice," should not be CHARLES G. SMITH and Charles G. Smith, lost by reason of such death. Under this interpretation of the act, the words "or his heirs" must be held to mean the same thing as personal representatives. We do not perceive either in the words of the act, or in the circumstances attending its passage, anything to justify the belief that Congress had any purpose in the event of the death of Price to defeat the just demands of creditors.

It is so ordered.

Jr., Appts.,

v.

CHARLES BURNETT, Suing on His Own
Behalf, and Said Charles Burnett and
Charles G. Endicott, Executors of Harriet
E. Burnett, Deceased, et al.

1.

(See S. C. Reporter's ed. 430–439.)

Duty of wharfinger-questions of fact.

A wharfinger does not guarantee the safety of vessels coming to his wharves, but he is bound to exercise reasonable diligence in ascertaining the conditions of the berths thereat, and, if there is any dangerous obstruction, to remove it, or to give due notice of its existence to vessels about to use the berths. At the same time the master is bound to use ordinary care, and cannot carelessly run into danger.

Reference was made in argument to the recent case of Briggs v. Walker, 171 U. S. 466, 473, 474 [ante, 243]. It differs in some respects from both the Emerson Case and the present case, but the decision is in accord with the views herein expressed. It arose under "An Act for the Relief of the Estate of C. M. Briggs, Deceased," and the principal question was whether the right given by the act to Briggs' "legal representatives" was for the benefit of his next of kin to the exclusion of his creditors. This court said: "The act of Congress nowhere mentions heirs at law, or next of kin. Its manifest purpose is not to confer a bounty or gratuity upon anyone; but to provide for the ascertainment and payment of a debt due from the United States to a loyal citizen for property of his, taken by the United States; and to enable his executor to recover, as Argued January 6, 9, 1899. Decided March part of his estate, proceeds received by the United States from the sale of that property.

The act is for the Relief of the Estate' of
Charles M. Briggs, and the only matter re-
ferred to the court of claims is the claim of
his 'legal representatives.' The executor
was the proper person to represent the es-
tate of Briggs, and was his legal representa-
tive; and as such he brought suit in the
court of claims, and recovered the fund now
in question, and consequently held it as as-
sets of the estate, and subject to the debts
and liabilities of his testator to the defend-
ants in error." It is to be observed that the
court in that case looked both to the body
of the act and the preamble in order to as-
certain the intention of Congress.
[430] *It results that the plaintiffs in error, as
heirs of Rodman M. Price, were not denied

by the final judgment of the state court any
right secured to them by the act of 1891.

2.

The successive decisions of two courts in
the same case, on questions of fact, are not
to be reversed unless clearly shown to be
erroneous; and if the evidence is conflicting,
and there is evidence to sustain the decree,
this court will not interfere.
[No. 112.]

is, 1899.

APPEAL from a decree of the Court of Ap

peals of the District of Columbia affirming the decree of the Supreme Court of the District sitting in admiralty, whereby the above-named appellees, original libellants in the cause, were awarded damages and a cross libel filed by appellants was dismissed. The libel was filed by appellees against appellants for an injury to their vessel, the Schooner Ellen Tobin, while moored in berth at appellants' wharf at Georgetown, and the injury was caused by appellants' negligence in allowing a dangerous rock to remain in the berth at the wharf. Affirmed.

See same case below, 10 D. C. App. 469.

Statement by Mr. Chief Justice Fuller: *This is an appeal from the court of ap-[431] peals for the District of Columbia affirming

a decree of the supreme court of the district, | her cargo under water, until the 1st of Nositting in admiralty, whereby appellees, vember, 1893, when the stone was pumped original libellants in the cause, were award- out of her, and she was then condemned as ed damages, and a cross libel filed by appel- worthless, and was afterwards soid at auclants was dismissed. 10 D. C. App. 469. tion for $25 to one of the owners." Other As stated by the court of appeals, the libel findings of fact appeared in the opinion. was filed by appellees against appellants for an alleged injury to their vessel, the schooner Ellen Tobin, while moored in berth at appellants' wharf on the bank of the Potomac at Georgetown, for the purpose of being loaded by and for appellants; and the injury complained of was averred to have been occasioned by appellants' negligently allowing a dangerous rock to remain in the bed of the river within the limits of the berth at the wharf, which the vessel was invited to take, the obstruction being unknown to the master of the vessel, and he having been moreover assured by appellants through their agent that the depth of water in the berth in front of the wharf was sufficient, and that the berth was safe for the loading of the ves-feet of water.

sel without any notice to, or knowledge on | pany, 99 Mass, 216, is so much in point that
the part of, the master or owners of such we quote from it, as did the court of appeals.
obstruction, the appellants were liable by The case was in tort for injury to plaintiffs'
the maritime law as for a maritime tort for schooner by being sunk and bilged in the
resulting damages. And the evidence show- dock adjoining defendants' wharf, which
ing that appellants had notice of this ob-fronted on navigable waters, where the tide
struction, they were clearly liable in this ebbed and flowed. Defendants had dredged
action, and even if they had succeeded in out the adjoining space to accommodate ves-
proving that they had no knowledge or no- sels which were accustomed to come with
tice, then they were liable on the ground iron and coal for defendants' foundries, situ-
that they were guilty of negligence, and ated on the wharf. There was in the space
want of reasonable care which the law re- dredged a large rock, sunk in the water and
quired of them in not ascertaining the ex- thereby concealed from sight, dangerous to
istence of the obstruction.
vessels, and so situated that a vessel
of the draft to which the water at the
wharf was adapted, being placed at high wa-
ter at that part of the wharf, would lie over
the rock, and at the ebb of the tide would
rest upon it. Defendants had notice of the
existence and position of the rock and of its
danger to vessels, but neglected to buoy or
mark it or to give any notice of it to plain-
tiffs or anyone in their employment, though
their vessel came to the wharf by defendants'
procurement, bringing a cargo of iron for
them under a verbal charter. Mr. Justice
Gray, among other things, observed:

Philadelphia, W. & B. R. Co. v. Philadelphia & H. de G. Steam Towboat Co. 23 How. 209, 16 L. ed. 433; Carleton v. Franconia Iron & S. Co. 99 Mass. 216; Nickerson v. Tirrell, 127 Mass. 236; Wendell v. Baxter, 12 Gray, 494; Thompson v. North Eastern R. Co. 2 Best. & S. 106; Mersey Docks & Harbour Board v. Gibbs, L. R. 1 H. L. 93; Parnaby v. Lancaster Canal Proprs. 11 Ad. & El. 223; Leonard v. Decker, 22 Fed. Rep. 741; Pennsylvania R. Co. v. Atha, 22 Fed. Rep. 920; The Moorcock, L. R. 14 Prob. Div. 64; The Calliope [1891] A. C. 11, L. R. 14 Prob. Div. 138.

In admiralty cases where both of the courts below concurred in their conclusions of fact, the burden is upon the appellant to make out clearly that such findings were without evidence or were clearly against the weight of evidence.

The Baltimore, 8 Wall. 382, 19 L. ed. 463; The Lady Pike, 21 Wall. 8, 22 L. ed. 501; The Marcellus, 1 Black, 417, 17 L. ed. 218. Where the facts found below and concurred in by both courts have been found upon conflicting evidence, this court will not reverse if there is evidence to support the decree.

Philadelphia, W. & B. R. Co. v. Philadelphia & H. de G. Steam Towboat Co. 23 How. 217, 16 L. ed. 433; The S. B. Wheeler, 20 Wall. 386, 22 L. ed. 385.

[432] Mr. Chief Justice Fuller delivered the opinion of the court:

Undoubtedly there was jurisdiction in admiralty in the courts below, and the applicable principles of law are familiar. [483] *Although a wharfinger does not guarantee the safety of vessels coming to his wharves, he is bound to exercise reasonable diligence in ascertaining the condition of the berths thereat, and if there is any dangerous obstruction, to remove it, or to give due notice of its existence to vessels about to use the

berths. At the same time the master is bound to use ordinary care, and cannot carelessly run into danger. Philadelphia, W. &B. Railway Company v. Philadelphia & H. de G. Steam Towboat Company, 23 How. 209 [16: 433]; Sawyer v. Oakman, 7 Blatchf. 290; Thompson v. North Eastern R. R. Company, 2 Best & S. 106; Ex. Ch. id. 119; Mersey Docks & Harbor Board Trustees v. Gibbs, L. R. I H. L. 93; Carleton v. Franconia Iron Steel Company, 99 Mass. 216; Nickerson . Tirrell, 127 Mass. 236; Barber v. Abendroth Bros. 102 N. Y. 406 [55 Am. Rep. 821]. Carleton v. Franconia Iron & Steel Com

"It does not indeed appear that the defendants owned the soil of the dock in which the rock was embedded; but they had excavated the dock for the purpose of accommodating vessels bringing cargoes to their wharf; and such vessels were accustomed to[434] occupy it, and could not discharge at that point of the wharf without doing so. Even if the wharf was not public but private, and the defendants had no title in the dock, and the concealed and dangerous obstacle was not created by them or by any human agency, they were still responsible for an injury occasioned by it to a vessel which they had induced for their own benefit to come to the wharf, and which, without negligence on the part of its owners or their agents or serv ants, was put in a place apparently adapted to its reception, but known by the defendants to be unsafe. This case cannot be distin

guished in principle from that of the owner
of land adjoining a highway, who, knowing
that there was a large rock or a deep pit be-
tween the traveled part of the highway and
his own gate, should tell a carrier, bringing
goods to his house at night, to drive in, with-
out warning him of the defect, and who
would be equally liable for an injury sus-
tained in acting upon his invitation, whether
he did or did not own the soil under the
highway."

the master or vessel owner, the same court in
And as to the degree of care required of
Nickerson v. Tirrell rightly said: "The true
rule was stated to the jury, that the master
was bound to use ordinary care, and could
not carelessly run into danger. We cannot
say, as matter of law, that he was negligent
because he did not examine or measure the
dock and berth. It was for the jury to de-
termine whether the conduct and conversa-
tion of the defendant excused the master
from making any more particular examina-
tion than he did make, and whether, upon all
the evidence he used such care as men of