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UNITED STATES v. BUCHANAN. (District Court, W. D. Texas, San Antonio Division. February 20, 1919.)

No. 2342.

1. BAIL 55.—BAIL BONDS-UNITED STATES COMMISSIONERS-PROCESS.

The form of a bail bond taken by the United States commissioner should conform in all substantial particulars to the requirements of the laws of the state in which the commissioner is sitting, Rev. St. 8 1014 (Comp. St. 8 1674), providing that the United States commissioner may take bail in any state agreeable to the usual mode of process against

offenders in such state. 2. BAIL Om66BONDS-SUFFICIENCY.

Where a bail bond set out that defendant committed a felony by at tempting to export munitions of war into Mexico in violation of the Presidential Proclamation of March 12, 1914, held that the bond was sufficient under Code Cr. Proc. Tex. art. 321, having set out that the offense was a felony, which was all that was required by the statute, notwithstanding the original proclamation of President Taft, under the Congressional Resolution of March 14, 1912, making a violation a felony, had been revoked before March 12, 1914; a similar proclamation having been issued by President Wilson before and in effect at the time the offense was

alleged to have occurred. 3. JUDGMENT 342(1)→VACATION-AUTHORITY OF COURT.

A judgment on a bail bond cannot be set aside by the court after the expiration of the term at which it was rendered, where the bond was valid and the judgment was not a nullity.

Manuel Buchanan was charged with unlawfully attempting to export munitions of war into Mexico. On motion to set aside judgment of forfeiture of bail bond entered at former term, on the ground that the bond was void and the final judgment entered a nullity. Motion denied.

Heilbron & Matthews, of San Antonio, Tex., for petitioner.

Hugh R. Robertson, U. S. Dist. Atty., and Claud J. Carter, Asst. U. S. Dist. Atty., both of San Antonio, Tex.

WEST, District Judge. The defendant as principal, together with. his sureties, move to set aside the final judgment of forfeiture entered at former term upon his bail bond upon the ground that said bond is void, and that final judgment is itself a nullity, wherefore the court may take jurisdictional cognizance of the motion even though the final judgment was entered at a former term. The invalidity of the bond is based upon a claim that it does not appear from the bond that the defendant is charged with any offense against the laws of the United States.

[1, 2] The material portions of the bond charging the offense is as follows:

"In violation of the President's proclamation of March 12, 1914, of the Revised Statutes of the United States, unlawfully committed a felony."

As a matter of fact there was no proclamation made by the President "of March 12, 1914." There was a proclamation made by President For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Taft on March 14, 1912, pursuant to the provisions of the joint resolution of Congress approved March 14, 1912, the joint resolution authorizing the President to declare, by proclamation, it to be unlawful to export arms or munitions of war into any American country where conditions of domestic violence existed under súch limitations and exceptions as he, the President, might prescribe. Section 2 of this joint resolution prescribes a penalty of the grade of felony for any violation of such resolution and proclamation ; 37 St. at L. pt. 1, p. 630. President Taft's proclamation was revoked by President Wilson on February 3, 1914; 38 St. at L. pt. 2, p. 1992. President Wilson, on October 19, 1915, made his proclamation, carrying into effect and rendering operative the joint resolution before referred to. 39 St. at L. pt. 2, p. 1756.

The form of a bail bond taken by a United States commissioner should conform in all substantial particulars to the requirements of the laws of the state in which the commissioner is sitting, so far as such laws are applicable; U. S. v. Sauer (D. C.) 73 Fed. 671. This accords with article 1014, R. S. (Comp. St. § 1674), which provides that a United States commissioner may take bail in any state "agreeably to the usual mode of process against offenders in such state.” The Code of Criminal Procedure of Texas 1911, art. 321, is to the effect that:

"A bail bond shall be sufficient if it contains the following requisites

“(3) If the defendant is charged with an offense that is a felony, that it state that he is charged with a felony."

See Anduaga v. United States, 254 Fed. 61, — C. C. A.

The Court of Criminal Appeals of Texas, construing article 321, C. C. P., supra, through Judge Prendergast, in Anderson v. State (Tex. Cr. App.) 201 S. W. 994, referring to the sufficiency of the bond under the requirements of this section of the Criminal Code, says:

"The bond will be sufficient if it states merely that the offense charged is a felony, without telling what the offense is. Under this statute either this must be done, or the specific offense must be stated."

Applying the rules of construction as laid down by the authorities mentioned, and testing the sufficiency of the bond in this case by those rules, it appears that the matter of the offense is touched upon in the bond in two particulars: (1) Where the charge is said to be “in violation of the President's proclamation of March 12, 1914”; and (2) "of the Revised Statutes of the United States unlawfully committed a felony."

Presumably the reference to the offense being in violation of the President's proclamation was intended as a mere reference to the proclamation so that it might be consulted, certainly such a reference could not comply with that requirement of the law mentioned by Judge Prendergast, which says that the offense must be named. To name the offense charged would require a résumé from the proclamation and resolution of all the essential elements of the offense therein stated, which is not done. · Since it appears that the President issued and made no proclamation of any character whatever on March 12, 1914,

that verbiage in the bond may be disregarded as meaningless surplusage. The inquiry then follows as to whether or not there still remains in the body of the bond the second alternative requirement specified in the Criminal Code of Texas, and as stated by Judge Prendergast, to wit, that the offense charged is a felony or misdemeanor as the case may be. The bond provides, eliminating the language referred to, aş follows, the charge being :

"On or about the 11th day of October, A. D. 1917, within said district, in violation of the Revised Statutes of the United States, unlawfully committed a felony."

[3] It then appears that the identical requirement of the Code is complied with, in that the principal defendant is charged with having committed a felony. The offense is shown by the bond to have been committed on or about the 11th day of October, A. D. 1917. At that time the joint resolution of March 14, 1912, and the President's proclamation of October 19, 1915, making the resolution operative, were in effect. Section 2 of the joint resolution provides :

“That any shipment of material hereby declared unlawful after such a proclamation shall be punishable by fine not exceeding $10,000, or imprisonment not exceeding two years, or both."

The joint resolution of Congress, together with the proclamation of the President, constitutes a valid enactment of a law and statute of the United States. The grade of the offense is also fixed by the resolution as that of felony. The requirements of the Code of Criminal Procedure of the state of Texas seems to have been fully met, and the bond is a valid and subsisting obligation of the signers. Therefore the motion to set aside the judgment, being made at a term subsequent to that at which the final judgment was entered, comes too late; the court is without jurisdiction to entertain it, and the motion is therefore dismissed.

A formal order to this effect will be entered as of this date.

HOWARD V. 9,889 BAGS OF MALT.
(District Court, D. Massachusetts. February 15, 1919.)

No. 1567.
1. ADMIRALTY 36-SCOPE OF JURISDICTION-SET-OFF.

A set-off is unknown to the admiralty law, except as a credit on the

transaction which forms the subject of the libel. 2. SHIPPING m154—LIEN FOR FREIGHT_STORAGE OF CARGO.

A ship does not lose her lien on a cargo for freight by delivery to a public warehouse for storage without intention to deliver to the con

signee. 3. MABITIME LIENS 1-FAVORED BY COURTS-ACTS WHICH WILL DEFEAT.

A maritime lien is one favored by the courts and will be enforced, unless clearly displaced by the acts or agreements of the parties. In Admiralty. Suit by Thomas J. Howard against 9,889 Bags of Malt. Decree for libelant.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Hill, Barlow & Homans, of Boston, Mass., for libelant.

Pitt F. Drew, of Boston, Mass., for petitioner France & Canada S. S. Co., Limited.

George Everett Kimball, of Boston, Mass., for petitioner Hustis. Pitt F. Drew, of Boston, Mass., for claimant.

HALE, District Judge. This is a suit in rem to enforce a lien of the libelant upon the cargo of the ship George S. Repplier for carrying 9,889 bags of malt from Hoboken, N. J., to Mystic Wharf, Boston, and for four days demurrage.

The contract of carriage is shown by the bill of lading, by correspondence, and by oral testimony of conferences of the libelant with one Elder, who appears to have been the agent for Renke, the undisclosed principal. It appears that the undertaking on the part of the libelant was to get the malt to Boston, to deliver it to Mystic Wharf, and to use all diligence to catch the steamship Moorish Prince, upon which the malt was to be carried from Boston to a foreign port.

From an examination of the proofs, it appears that the contract was made on July 12, 1917. On July 13, at 7 in the morning, the libclant produced the barge for loading in Hoboken, N. J. Late in the afternoon of July 15, the barge was being loaded by the shippers. The necessary bills of lading were not produced until July 16. The barge then sailed through Hell Gate on July 17, and proceeded the same day to Whitestone Head off Long Island Sound.

The testimony must be held to prove that up to July 17, the time which had elapsed was due to the loading of the barge by the shippers, over which the libelant had no control, and to the delay of the shippers in producing the necessary bills of lading. The voyage was made without further delay, except for the thick fog which prevailed.

The testimony tends to show that the delay in reaching Boston was from 'no fault of the libelant, but from conditions of weather, or, in other words, from perils of the sea.

The libelant engaged a towing company to take the barge; he also gave orders for prompt action. He appears to have used reasonable diligence in making the voyage. His contract was not to reach the Moorish Prince, in any event before she sailed, but to use all diligence to reach her.

He has met the burden of proving that he did use such diligence, and that he performed his contract.

[1] At this point it must be observed that the claimant makes a demand that a certain set-off should be allowed because of breach of contract on the part of the libelant. It is not necessary to go into the question whether the testimony shows such breach. It is enough to say that, under the law, these damages cannot be recovered by set-off, but must be recovered by a separate action. A set-off is unknown to the admiralty law, except as a credit on the transaction which forins the subject of the libel. O'Brien v. Bags of Guano (D. C.) 48 Fed. 726, 730. The claim for damages is a personal right on the part of the owner against the carrier, and is not a claim upon the cargo itself. The Giulio (D. C.) 34 Fed. 909.

[2] A sharp contention is made by the claimant that the lien of the libelant has been lost by the discharge of the cargo, and by abandonment of possession. The testimony makes it clear that on the arrival of the ship at Mystic Wharf, the steamship Moorish Prince had sailed. No consignee or other claimant appeared to accept delivery of the cargo. The only person to supervise the unloading was one Ackerly, the superintendent of the pier. The malt was stored on the pier, in the warehouse of the Boston & Maine Railroad, a public warehouseman, and not shown to be an agent of the consignee. The malt was received by the France & Canadian Steamship Company as a deposit for the benefit of both parties. The testimony fails to prove that it was delivered to the consignee, or that such was the intention of the parties. On the other hand, the proofs are clear that on August Sth, as soon as he heard of the discharge of the cargo, the libelant sought to enforce his lien; that he went to Elder, the agent of the claimant and told him that he should libel the cargo for his freight. This appears from Elder's testimony. The testimony is convincing that the libelant did not intend to abandon his lien by giving up possession; that the cargo was received by the France & Canadian Steamship Company; and that this company was wholly a stranger to the obligation to pay freight.

[3] The maritime lien is one favored by the courts; it will be enforced unless clearly displaced by the acts or agreements of the parties. In Bags of Linseed, 66 U. S. (1 Black) 108, 114 (17 L. Ed. 35), in speaking for the court, Mr. Chief Justice Taney observes:

"Courts of admiralty, when carrying into execution maritime contracts and liens, are not governed by the strict and technical rules of the common law, and deal with them upon equitable principles, and with reference to the usages and necessities of trade.

It is the interest of the shipowner that his vessel should discharge her cargo as speedily as possible after her arrival at the port of delivery. And it would be a serious sacrifice of his interests if the ship was compelled, in order to preserve the lien, to remain day after day with her cargo on board, waiting until the consignee found it convenient to pay the freight, or until the lien could be enforced in a court of admiralty.”

See, also, Costello v. Cargo of Laths (D. C.) 44 Fed. 105; The Anna Kimball, 2 Cliff. 4, 15, Fed. Cas. No. 7,772.

Under the maritime law of this country, a manual turning over of cargo by shipowners to an independent warehouseman, or even to the consignee itself, does not of itself operate of necessity to discharge their lien for freight. Where the intent of the shipowners in making such delivery is merely to discharge the cargo, and not to deliver it, their lien for freight remains in full force. 600 Tons of Iron Ore (D. C.) 9 Fed. 595, 597; 151 Tons of Coal, 4 Blatchf. 468, Fed. Cas. No. 10,520; Davidson S. S. Co. v. Bushels of Flaxseed (D. C.) 117 Fed. 283.

In the case before me, the testimony proves that the libelant has earned his freight, and that he did not intend to lose his lien by abandonment of possession. According to the liberality of the admiralty law, he is still able to enforce the lien against the cargo. The price for the libelant's services, fixed by the contract, appears to have been

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