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ers 05 X District Court, of tne United States for the Eastern District of Michigan. MARITIME LAW. drew the proceeds of the sale trom the court, since it attaches to the frnd itself and not to the litigation out of which the fund arises. Ghe Marine Record. the court is held do not live at a greater dis- tance than one hundred miles from the place of holding the same. Construing these two ’ Where a vessel is sold by a trustee under | TH® MARSHAL’S COMMISSION UPON THE FUND | sections together, the inference seems to me the limited liability act and the proceeds e| gale are paid into court, the clerk’s com- mission is payable from such proceeds, even though the owner appears and contes's the liability of the veseel for her losses. A claimant who desires to contest the lia- bility of the vessel, and gives a stipulation for costs under general admiralty 26, is lia- | ble only for the costs properly incident to such contests, Where a vessel is sold by a trustee under the limited liability act the marshall is not | entitled to a commission. Where a witness attends from out of the | district mileage can only be taxed to the ex- | tent of one hundred miles. Where two libels were filed against the | same vessel for two lossee occasioned by the same disaster but the two caures were never | consolidated, held that double mileage and attendance should be allowed though the witnesses were sworn but once and their testimony was read in both causes, The charges of a person employed to make soundings and prepare a map of the locality of acollision cannot be taxed as disbur-e- ments. On appeal from taxation of costs, The Vernon was arrested npon two libels for negligence in towing the schooner Sena- tor and Watson upon the rocks at the mouth of Detour river. Damages were claimed in the aggregate sum of $35,000. The Vernon was released upon the usual stipulation to answer judgment, and snbsequently her owners, the petitioners in this case, insti- tuted proceedings fora limitation of their liability as owners. Under the statute, sec. 4285 they elected to transfer the Vernon to H. A. Harmon, as trustee, and thereafter the said trustee proceeded to take possession and sell the vessel. She brought $23,150. The proceeds of the sale, less the trustees costs and expenses, were pusid into cout, and petitioners thereupon proceeded to take issue with and to contest the claim of lia- bility for the loss of the schooners, buta decree was finally rendered in favor of the owners of the Senator in the amount of $12,- 000, and costs for the damages suffered by the Senator and her cargo. To the owner of the Watson the court decreed $22,156 and costs. The questions arising upon the taxa- tion appear in the opinion of the court. Mr. H. C. Wisner, for the petitioners. Messrs. H. H. Swan, and F., H, Canfield for the libelants, Petitioners appeal from _the clerk’s taxa- of the following items. En Bard uld be paid ¢ ney is collected upon an execution it is the duty of the marshal to add the clerk’s poundage s well as his own to the amount of the judgment, and collect it of the defendant, as the plaintiff is en- titled to the whole amount of his jadgment, Fagen ve. Callen, 28 Fed. Rep., 848. In re Goodrich, 4 Dillion, 280. Upton vs. Trebiteock, 4 Dillion, 282. Kitchen ve. Wood- fin, 1 Hughe 810, 342. Blake vs. Wilkins, 19 Fed. Rep. 204. Such is undoubtedly the rule in admiralty, where an ordinary stipulation is given to answer the decree of the court, and execu. tion is issued against the claimants and their stipalators. By the limited liability act, R. S. sec. 4285, a new right is given to the owner of the ship, viz. the right to transter her to a trustee,’’ from and after which transfer all claims and proceedings against the owner shall cease.’ This transfer being’ effected; proof of all claims, (genera) admiralty, rule 55,) shali be made before commissioner, and upon completion of the proofs the com- missioner shall make report, and upon the comfirmation of such report, the proceeds of the sbip or vessel and freight, “after pay- ment of costs and expenses,’’ shall be di- vided pro rata among the several claimants. This, no doubt, contemplates the payment of all costs and expenses necessarily inei- dent to the sale of the vessel and the proot of the claims including the clerk’s com- mission upon the money paid into court. If, however, the owner chooses to contest the liability of the ship for the losses, as he may do under rule 56, he is bound under rule 26 to give the usual stipulation for the costs incident to that contest, including the fees of the clerk, marshal, proctors, wiinesses, ete., but not, | think, including the clerk’s commission, which is ;payable whether he contests or not, Costs are within the dis- cretion of a court of admiralty, and I think equity demands that where a party contests a claim for damages he ought to be muleied only in the interests upon the fund, and in such costs. as necessarily arise from that con- test. Costs, which but for such contest would be paid from the fund, ought, [ think, to remain chargeable against the fund. Ifthe petitioner had been success- ful in contesting his liability for the lose, he’ would undoubtedly be bound to pay this commissivn himself, when he with- ‘cases under consideration were never settled, | White vs. Judd, 1, Met 293. IN COURT. | By section 829 the marshal is entitled to a commissicn in admiralty cases in two mia | tingencies, first, where the debt of claim is | settled by the partiesf{without a sale of the | property, he is entitled to a commission of | one per cent on the first $500, and one half | of one per cent on the excess. This con- | templates a settlement of the case between the parties before trial, in which case the | marshal is entitled to his commission upon the amount paid in settlement; but as the but were contested through to a final decree, it is evident that the marshal! is not en- titled toa commission under this clause. For the sale of veesels or other property under process in admiralty or under the order of the court of admiralty, and for re- ceiving and paying over the money, he is entitled to a larger commission. But as the vessel was tever sold by him, it is clear that he is not entitled to a commission un- der this sutdivison. That it would be in- equitable to allow him this commission is apparent from the fact that the trustee who makes the sale, either receives a commission or compensation in the nature of a com- mission upon such sale, Indeed, I under- stand this item to be practically abandoned | npon the argumer t, MILEAGE OF WITNESSES FROM OUT OF THE DISTRICT. Libelants claim the right to charge the full mileage of witnesses trom out of the dis« trict, though there ia no‘doubt their deposi- tions might have been taken. Petitioners, upon the other hand claim, that under the construction given to this statute by this court they are entijled to charge only for the distance of one hundred miles, Pro- bably there is no question connected with costs in the federal courts upon which there is a greater conflict of authority. In the first cirenit it has been uniformly held from 1842 to the present day that the syccessful party was entitled to the mi'eige of his witnesses, regardless ofjthe distance or of the fact that that they came from out of the district. The rule was first. announeed by Mr, Justice Story in Preuty vs, Draper, 2 Story, 199 was rejterated by the same judge in Whipple vs. The Cumberland Manufacturing Co., 3 Story, 84; was recognized and approved by Mr. Justice Woodbury in Hathaway vs. | Roach 2 W. & M. 68 78, and was finally ain exhaustively coneidered and_ re- Inited. States vs. Sanborn, ray 28 Fed. Rep. 299. It ras ndamitted, however, by Mr. Justice Story at under the state practice in Mass. the ravel of the witness could only be taxed rom the line of the state. ; Melvil vs. Whiting, 13. Dike. 190 ‘In the second cireuit, the rule is as well established the other way. In an unanimous case reported in 5, Blatchford, 134, Mr, Jus- ice Nelson and Judge Shipman held that the traveling fecs to a witness were allow- able ro the extent the subpoena would run, that is, for any distance within the dis- trict, but for not exceeding ove hundred miles from the place of trial unless the dis- tance was wholly wiihin the district, ‘This ruling was affirmed by Judge Benedict in Beckwith vs. Easton, 4 Benedict, 857, and in the Leo 5 Benedict, 486, and by Judge Coxe in the Buffalo Insurance Co, vs. the Provi- dence ete. Steamship company 26 Fed. Rep., 287. The ru'e has been settled in the same way in the ninth circuit by Judge Sawyer in Spaulding vs. Tucker, 2, Sawyer, 50. and in Haines vs. McLaughlin, 29 Fed. Rep., 70. I do not regard the cases of Parker vs. Bigler 1 Fisher Patent Cases, 285; Woodruff vs. Barney, 2 Fisher’s Patent Cases. 244 or Dres- kil vs. Parish, 5 McLean 241, as of any par- ticular value in this discussion, as the last two of them, at least, put their decision upon the ground that a witness can in no case be entitled to his fees unless he is summoned by, a regular subpoena issued by the court. The necessity of a subpoena was caretully consid- ered by Judge Withey in Anderson vs. Moa 1 Abbott U. §., 299, and by Justice Gray in United States vs. Sanborn, 28 Fed. Rep., 299, and both of them came to the conclusion that a witness who, in good faith, comes to court to testify in a pending suit, whether he comes in obedience to a subpoena, or at the mere re- q.est of one of the parties, attends “ pursuant to law,” and is entitled to his fees. I have no doubt, myself, of the correctness of these rulings, and have always followed them in this district. There is no settled rule in this circuit upon the subject of mileage, although in the case of Anderson vs. Moe, 1 Abbot, U. 8. 299, Judge Withey held the fees of witnesses to be tax- able though they came from New York, and more than a hundred miles from the place of trial. In determining this question I think that considerable weight should be given to sections 868 and 876, the former permits the deposition of a witness to be taken when he lives ata greater distance from the place of trial than a hundred miles; and the latter of which allows subpoenas to be served in other districts, with a proviso that in civil causes witnesses living out of the district in which very strong that it was the intention of con- gress to limit the allowance of mileage to the distanee of one hundred miles, where a wit- ness lives in another district. ‘lhere is no doubt very considerable force in the argument of Mr. Justice Story that the act is not per- emptory inrequiring the deposition ef wit- nesses to be taken, bnt only that they may be taken and used. It is, says he, in Prouty vs. Draper, 2 Story, 200 a mere option given to the party who wishes to use the testimony of the witnesses. In many cases, the presence of the witnessess in person, and their oral tes- tsmony on the stand may be indispensable to the true exposition of the merits of the case. No desposition would,or could, meet all the ex- igencies, which might arise frou the varying character of the evidence, or the necessity of in- stant explanation of circumstances, not previ~ ously Known or understood, And his ruling ap- pears to be invariable to allow the mileage of witnesses when they were not brought for the purpose of oppression, or without necessity, for the purpose of swelling the costs of litigation. His opinion appears also to be supported by the English authorities at that day. Nvotwithstand- | ing this argument, however, it seems to me to be putting in the hands ofa lit'gant a very great power to permit bim to summon witnesses from distant states to at’end sessions of the court here, although their testimony may be very material and important, If he be able to procure the at- tendance ofa witness from New York and charge full mileage, I see no reason why he inight not procure the attendance of an impor, tant witness from California or even from Aus- tralia or other remote quarter of the globe, and practically ruin the opposite party by the accu- mulation of costs, Ii is true there is reserved to the court the power of declaring that the tes- timony of such witnesses vere notso material as to require tleirattendance from out of the dis- trict, yet if the testimony ot sueh witnesses was shown to be importaat, it would be very diffi- cult to say from what distance they might or wight not be summoned, My :wn practice has been in such cases to li- mit the mileage'to one hundred miles, presum- ing that the testimony of witnesses who live at a greater distance, could, and should be taken by deposition, I would not say that if a case were presented by affidavit showing the mater- iajity of the witness who lived out of the dis- trict, and at a greater distance than one hundred miles, that his deposition could not be satisfac. torily taken. and that his presence were actually necessary at jhetriai, that I could not allow niileage for his attendance, but I regard this as a special case, and calling, perhaps for an ex. ception to the general rule. For the present I shall adhere tu the practice that has heretofore prevailed, and decline to allow for more than a hundred miles, 4, DOUBLE MILEAGE AND ATTENDANCE FOR THE SAME WITNESSES, The witnesses of both the iipellants | were the same upon the hearing, are entitled to mileage and attendance in each ease. Their right of recovery was dependent upon the same state of facts, yet the cases were distinct, By sec, 848 when a witness is subpe- ned in more than one cause between the sane |. parties at the same court only one travel fee and one per diem compensation shall be allowed for attendance, but in this case there were two dis- tinct and seperate causes, and the inference cer- tainly 1s that they are entitled to mileage and ate tendance in both cases. This was the view tak- en by Mr, Justice Blatehford in Wooster vs. Handy 23 Fed. Rep. 49, 64, by Mr. Justice Grier in Parker vs. Bigier, 1 Fisher Patent Cases, 285, and by Judge Hammond in Archer vs. The Hartford Fire insurance Co. 31 Fed. Rep. 660. I regard it as quite immaterial that the cases were tried together by conseat, that the witnes- ses were sworn but once, that their testimony was but once written out, and used but once in the two cases. In the absence of auy order con- solidating the two causes, I think it clear that the witnesses are entitled to their mileage and attendance in both cases, | >» MAP AND SURVEY OF THE LOCALITY OF THE COLLISION. Au expert was employed at an expeuse of $70 to make soundings and prepare a map of that part of the Detour river in which the collision occured, with the landmarks upon the shore. I think it is ciear this cannot be taxed as ‘costs, Tuck vs. Olds, 29 Fed. Rep., 883.—July 19, 1888. LITERARY NOTICES. ‘THe CENTURY FOR SEPTEMBER —An unfami- liar face greets the reader in the frontispiece of the September Century, that of, Edward, Thring, the late head master of the Upping- ham grammar school, England. This isa compliment paid to an educator pure and simple, George R. Parkin’s illustrated arti- cle on Uppingham describes an ancient school worked on modern ideas. The pictures are by Joseph Pennell. and Irving R. Wiles. This is, in fact, an educational number of the Century as it contains many other articles on the subject, including two editorials. Other articles in this number are a continuation of the Life of Lincoln; George Kennan on Exile by administrative Process, A. ©. Gordon on Hard Times in the Confederacy, Professor Holden’s concluding article on Sidereal As- tronomy; and anillustrated article by Mrs, E. 8. Starr on Doves and Bird Music, by S. P, Cheney, father of the poet. Mr. Kennan, in the department of Open Letters, answers the question, Is the Siberian Exile System to be at once abolished? The ex confederate Gener- as the old ship channel. In support of their $ It is claimed that ‘they | em a ee ee eS eS ee al Colston writes feelingly and reconstructive- | ly of the Gettysburg Twenty-five Years After; Minister Romero explains his relation with General Grant during the time of Grant’s failure; and John Banyard and General Fre- mont tell about the canal at Island No. 10, The stories and sketches of the number are a continuation of Mr. Janvier's A Mexican Campaign; an illustrated story by’James Lane Allen, the scene of which is laid in the mon- astery described by him in the August number of the Century; and Mrs. Roseboro’s sketch entitled I'he Mountaineers about Monteagle. Admiral Joulett was thoroughly convinced and says that the iate Senator Zack. Chandler, who was with him, was equally certain that the old ship channel was the lower month. Mr. Parsons, of Cleveland, is now here in the interests of the canal. A block has oc- cured, and he wishes the appropriation for the improvement to be made available at once. The president has assured him that he will do all in his power to aid him in securing the passage ofa bill. Mr. Parsons has also had something to say to the president as to the location of the canal. He thinks there is little occasion to worry about the matter, as the canal is, without doubt, on American ter= ey ritory. ‘lhe United States built the canal, and has since made large appropriations for ~ its maintenance. ‘The lights at the upper and lower ends were erected by this government, and have been kept in efficient condition at its expense. : The president will soon come toa conclu- sion, and will proceed in the preparations for a vigorous execution of the retaliatory policy. — Boston Herald. CLAIR FLATS CA THE st. The location of the St. Clair canal, whether it ison the American or Canadian side of the border, is a question pow receiving the earn- est consideration of the president. At first glance it would appear that the canal is in the United States territory, but a doubt has arisen which the president feels it incumbent on him to settle before he maps out his programme of retaliation. The determination of the ques- tion rests upon the interpretation to be given the decision of the commissioners under the sixth article of the treaty made at Utica. N. Y., June, 1822, defining the boundary line between the Dominion and the United States. The boundary, as it runs in the vicinity of the canal, wes in that decision located as follows: To Lake St. Clair, thence through the middle of said lake in a direction to enter the mouth or channel of the river St. Clair, which is ususally denominated the old ship channel; thence along the middle of said channel be- tween Squirrel [sland on the south east and an island on the north-west. Located at the mouth of the St. (lair river on the old ship channel is a large marsh, called the St. Clair flats) Running ina south easterly direction is a stream of con siderable depth, carrying the waters of the river past the marsh into the St, Clair lake. In a north westerly direction is another mouth of the St. Clair. Now arises the seats [OR POT LEAD] which of these mouths was accepted as the | old ship channel. If the upper one, then un- | |For Bottoms of Yacht ? questionably, the canal is on Canadian soil; | Speciaily Prepared for the Purpose and Ui; if the lower, it is equally certain that the ca- qualled for Purity and Uniformity of Grain: nal is on the American side. JOSEPH DIXON CRUCIBLE CO., The president has during the past four or | Jersey City, N.J. New York Office, = Read five days called upon the. best authorities Louis LEMON’ STUG LIN on the subject as to their views. concerning TUGS:~ the location of ONEIDA, C. D, MCKINNON, auices NAL, ‘THE race for the silver cup, given by M Strachan for sailing skiffs, came off Mon- day below Catarnqui bridge. The May- — flower won, and it being the third time that she won, the cup belongs to her. The fol-— lowing is the time the different ekiffs started — and the time they finished: The Mayflower, owned by J. Bowman, started 3. 2. 304and — finished 4. 7. 45; Gyguets owned by Sherman, started 8. 2. 45. and finished 4, 14, 15; Thistle, owned by Mr. Strachan, 8. 3. 15., and finished 4, 17. 15; Ripple, — owned by 8S. McBride, staried 3, 8, 45. a tinished 4. 19. 45, The race was over a course 24 miles in length, ‘The skiffs had to go over it three times. he time made the May flower is considered very good. Dixon’s Black. Lead — THE BOUNDARY LINE. Some of these have contended that the lower mouth was regarded by the negotiators of the treaty as the ship channel; others are of the opinion that the upper mouth was the one } navigated on; therefere, it must be accepted | | theory they produce a map of the survey | ; made by Lieut. Byfierd, R. E,, in August, River a Eareses| ee ( at the upper one two lights are marked which |... ae is Roepe strong proof that it was the one ornee 808 ATWATE sn uscd by navigators, Those who old this | — view bitterly condemn the army engineers|- who located the ship canal where is ‘posses slon High be disputed, Mies of all kinds of We, ; a and OAR attention byt been. called to the fact that Ca-|. nada has always conceded that the canal was |. on United States soil. In article 27 of t treaty of 1878 certain concessions are made, ‘ because “the government of the United States | engages that the sybjects of her Britannic | Majesty shall enjoy the use of the St. Clair Flats canal on terms of equality with the in- habitants of the United States.” Again in the report of the chief engineer of the army for 1878 the following ‘Paragraph appear: It is gratifying in this connection to | that, of the few test cases of vessels inflict- ing damage placed in the hands of the United States district attorney, three haye | # confessed judgment and paid the compara | tively insignificant damages incidental with| confession, thereby vindicating the law and establishing the unquestioned control of the United States over the navigation of this ca- nal at slight cost to the involuntary peepentta and with advantage to the general interests of commerce, It was claimed that these facts establish the right ofthe United States to the teritory| through which the canal is cut. The advisors | who are inclined to the opinion that the ca- nal is on Canadian soil urge that the conces- sions mentioned will be as nothing if it is proved that the boundary line goes above the | cinal. All those who have been ‘called upon | by the president, however, | join in ‘the Teco- mendation that the TWO MOUTHS OF THE RIVER be disregarded and that it be claimed that the line crosses the marshy delta and enters the St. Clair river between Squirrel and Herson’s island. If the claim is established, ‘all doubt as to the possession of the canal vanishes, At present it is considered a mati er of first importance, the settlement of which should not be delayed. _ There is an old man named Patrick M phy living at Erie, who served miral Jouett of the navy f r rs, who was with keh when he nade th ie was a pilot on hoard the nun when Ad- miral Jouett commanded that vessel, He. then practically | illustrated the argument that i the lower mouth was the old ship sbasoet, }