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Caujolle v. Ferrié.

NELSON, J. No cases have been referred to, nor am I aware of any in this State, or, indeed, in any of our sister States, adjudging the point in question. Different opinions seem to be entertained, by eminent judges in England, as to the conclusiveness of the decision of the Ecclesiastical Court, on a question of administration, upon a Court of Equity, in a suit for distribution, as may be seen from the case of Barrs v. Jackson, decided by Vice Chancellor Knight Bruce, in 1842, (1 Young & Collyer's Ch. R., 585,) and the same case on appeal, (1 Phillips' Ch. Rep., 582.) The opinion of Lord Lyndhurst on the appeal may, perhaps, be regarded as settling the question in England, in favor of the conclusiveness of the adjudication of the Ecclesiastical Court, though that may be doubted. It is not material, however, to go into this inquiry, for, admitting it to be so, the decision could not be allowed to control the question as presented under our system of administration. We regard the question of next of kin, under our system, as preliminary and incidental, before the Surrogate, and simply with a view to ascertain the proper person, as prescribed by the statute, to be admitted to take letters of administration. This is the sole purpose and object of the inquiry; and it is made without any reference to, or consideration of, the question of distribution. The question of the admission. to take letters of administration is of much less importance, and an error in the proceedings is much less prejudicial in its consequences, than the question involving the distribution of the estate. If a competent person is appointed, in the former case, to administer upon the assets, though he may not be the right person, the interests of all concerned may be safe. But, in the latter, the right of property in the assets is concluded. Hence, the right to letters of administration is not usually severely contested. It may be added, also, that the Surrogate is not concluded by his own adjudication in the matter. He may revoke the appointment, for imposition or fraud, or displace the administrator for cause and appoint another.

The plea in this case must, therefore, be overruled, and the defendants have leave to answer.

The Scotia.


A sailing vessel discovering the lights of a steamer nearly ahead, on a dark and cloudy night, has no right afterwards to change her course, on the idea that she has not been seen by the steamer.

(Before NELSON, J., Southern District of New York, November 22d, 1864.)

THIS was a libel in rem, filed in the District Court, by the owners of the schooner E. H. Parker, against the steamer Scotia, to recover damages for injuries sustained by the schooner, in a collision which took place between her and the Scotia, on the morning of the 20th of November, 1862, between five and six o'clock, in the lower bay of the city of New York, about a mile south of Fort Lafayette, and somewhat to the east of it. The wind was south-south-west, and the tide about three quarters flood. The schooner was laden with a cargo of coal, and was on a voyage to New Haven, by the way of the East river and Long Island Sound. The steamer was proceeding down the bay, on one of her usual trips from the port of New York to Liverpool. The morning was dark and cloudy, but without fog or mist on the water. The District Court dismissed the libel and the libellants appealed to this Court.

Washington Q. Morton and Walter L. Livingston, for the


Daniel D. Lord, for the claimants.

NELSON, J. The case turns mainly on a question of fact, and that is, whether or not the schooner, after having been seen by the steamer, changed her course, by porting her helm and bearing to the east, thereby crossing the course or track of the steamer.

It is insisted by the master and hands on board of the steamer, that, on discovering the light of the schooner, which

The Scotia.

was then some three miles distant, it bore two points on their starboard bow, and that with a view to give her a free course, the helm of the steamer was starboarded, inclining her course to the east: but, that the schooner, instead of pursuing her course, ported her helm, and brought her across the track of the steamer, and thus occasioned the collision. It is admitted by the hands on board of the schooner, that, when they discovered the lights of the steamer, she appeared on a line nearly ahead of them; and that, intending to go up the bay on the east side, and to anchor at Red Hook Flats, they ported her helm and bore to the east. But they insist that this must have taken place before the schooner could have been seen by the hands on board of the steamer, and, hence, would not have influenced the course of the steamer. This I regard as the weak point in the case of the libellants. I am not satisfied, upon the proofs, that their position is well founded. On the contrary, I am inclined to think the weight of the evidence is, that the change of course took place after the schooner was discovered by the steamer. The error committed by the schooner was in changing her course after she had discovered the steamer. She had no right to assume she had not been seen by the steamer. The rule, that a steamer must take care and avoid a sailing vessel, if she keeps her course, is equally imperative, that the latter must not change her course. If she does she is in fault, and cannot invoke the rule against the steamer.

Besides, in this case, the night was dark, the steamer was moving down the bay with moderate speed, and the hands on board appear to have been active and attentive to avoid a collision, after discovering the schooner, and to have discovered her as soon as was practicable by the most vigilant lookouts.

Even if the schooner had not been chargeable with fault, I think it difficult to impute fault to the steamer. No doubt, if the collision had occurred in open day, or even on a clear and bright night, when the steamer could have seen the change made by the sailing vessel early enough to avoid her, it would have been her duty to take all proper measures for

Kimbro v. Colgate.

the purpose. But a change of course on a night dark and cloudy cannot be so readily discovered or so fully comprehended, and a less stringent rule must be applied.

I agree with the Court below, that, upon the proofs in the case, the steamer was not in fault, and must affirm the decree.




The proviso to the 173d section of the Act of June 30th, 1864, (13 U. S. Stat. at Large, 303,) does not save a suit commenced, prior to the passage of that Act, under the 4th and 5th sections of the Act of March 3d, 1863, (12 Id., 719, 720,) to recover back money paid in violation of the last named two sections, those sections being repealed by the Act of 1864.

Money paid under a contract made in violation of law, cannot, at common law, be recovered back; and, where a statute gives the right to recover it back, by suit, a pending suit and the cause of action involved in it fall with the repeal of the statute.

Whether an Act of Congress which undertakes to regulate private contracts between individuals in a State is constitutional, quere.

(Before NELSON, J., Southern District of New York, November 23d, 1864.)

THIS was a demurrer to a declaration. The declaration averred that, on the 26th of October, 1863, the defendants contracted with the plaintiff to sell him gold or silver bullion, and to buy from him gold or silver bullion; that the contract was, by its terms, not to be performed till after three days. from the making of it; that it was not in writing and not stamped, as required by the Internal Revenue Act of July 1st, 1862, (U.S. Stat. at Large, 432,) and was made in violation of sections 4 and 5 of the Act amending that Act, passed March 3d, 1863, (Id., 719, 720;) that under the contract, the plaintiff paid to the defendants, on various days,

Kimbro v. Colgate.

$22,537.36; and that, by virtue of the said 4th and 5th sections of the Act of March 3d, 1863, there accrued to the plaintiff a right of action to recover back the sums paid by him under the contract, which the defendants refused to pay.

Nathaniel J. Wyeth, for the plaintiff.

Francis F. Marbury, for the defendants.

NELSON, J. It is conceded that the contract set out in the declaration is within the condemnation of the 4th section of the Act of March 3d, 1863. The 5th section of that Act provides, that all contracts, &c., of gold and silver coin, &c., not made in accordance with the 4th section, shall be wholly void; and, in addition to the penalties provided in the Act, &c., any party to said contract may at any time, within one year from the date of the contract, bring suit to recover back, for his own benefit, the money paid on such contract.

The defence set up, in bar of the suit, is the repeal of these 4th and 5th sections, by the 173d section of an Act of Congress, passed June 20th, 1864, (13 U. S. Stat. at Large, 303.) The only question in the case is, whether or not the suit is saved by a proviso in this 173d section. The proviso, in substance, is, that all provisions of the Act repealed shall be in force for levying and collecting taxes, &c., and for maintaining and continuing liens, fines, penalties and forfeitures incurred under the said Act, and for carrying out and completing all proceedings which have been already commenced, or that may be commenced, to enforce such fines, penalties and forfeitures, or criminal proceedings, under said Act, &c. The argument in favor of the application of this saving clause to the present suit is, that it is a proceeding to recover a sum of money in the nature of a penalty or forfeiture, and, hence, within the clause. I cannot, however, so regard it. The cause of action, as stated in the declaration, is predicated upon a right to recover a sum of money paid by the plaintiff to the defendants; and, for aught that I see, indebitatus assumpsit, for money paid, would have been as ap

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