him on his return, Mrs. Des Grange, her two sisters, and Clark, were undoubtedly acting in conjunction. Madame Caillivet swears that she set on foot the prosecution against Des Grange. 12 How., 509, 510.
That Des Grange had a wife living when he married the complainant's mother was a mere pretence to cover a nefarious transaction, as is abundantly established by the facts appearing in the case reported in 12 Howard. The idea, therefore, that Clark was an innocent and deluded party, is wholly inadmissible, and must be rejected as the least sustained part of this remarkable case.
I am of the opinion that the decree of the Circuit Court should be affirmed.
Mr. Justice GRIER dissenting.
I wholly dissent from the opinion of the majority of the court in this case, both as to the law and the facts. But I do not think it necessary to vindicate my opinion by again presenting to the public view a history of the scandalous gossip which has been buried under the dust of half a century, and which a proper feeling of delicacy should have suffered to remain so; I therefore dismiss the case, as I hope, for the last time, with the single remark, that if it be the law of Louisiana that a will can be established by the dim recollections, imaginations, or inventions of anile gossips, after forty-five years, to disturb the titles and possessions of bona fide purchasers, without notice, of an apparently indefeasible legal title, "Haud equidem invideo, miror magis."
1. This court decided, in 17th Howard, 274, that the interest in one of the
shares of the Mexican Company did not pass to a trustee in insolvency
in 1819, the contract with Mina having been declared by the Court of
Appeals of Maryland to be utterly null and void, so that no interest
could pass to the trustee of an insolvent. Mayer v. White, 318.
2. But in 1824, Mexico assumed the debt as one of national obligation, and
the United States made it the subject of negotiation until it was finally
paid. Ibid.
3. A second insolvency having taken place in 1829, there was a right of
property in the insolvent which was capable of passing to his trustee.
Ibid.
4. The claim of the latter is therefore better than that of the administrator
of the insolvent. Ibid.
1. In a collision which took place in the harbor of New York, between a ship
which was towed along by a steam tug, to which she was lashed, and a
lighter loaded with flour, by which the latter vessel was capsized, the
evidence shows that she was not in fault, and is entitled to damages.
Neither the ship nor the tug had a proper look-out, and being propelled
by steam they could have governed their course, which the lighter
could not. Sturgis v. Boyer et al., 110.
2. Both the tug and tow were under the command of the master of the tug,
who gave
all the orders. None of the ship's crew were on board ex-
cept the mate, who did not interfere with the management of the vessel,
the persons on board being all under the command of a head stevedore.
The tug must therefore be responsible for the whole loss incurred.
Ibid.
3. The vessel must be responsible because her owners appoint the officers,
and the master of the tug was their agent, and not the agent of the
owners of the ship, who had made a contract with him to remove the
ship to her new position. Ibid.
4. Some of the cases examined as to the distinction between principal and
agent. Ibid.
5. Cases arise when both the tow and the tug are jointly liable for the conse
quences of a collision; as when those in charge of the respective vessels
jointly participate in their control and management, and the master or
crew of both vessels are either deficient in skill, omit to take due care,
or are guilty of negligence in their navigation. Ibid.
6. Other cases may be supposed when the tow alone would be responsible;
as when the tug is employed by the master or owners of the tow as the
mere motive power to propel their vessels from one point to another,
and both vessels are exclusively under the control, direction, and man-
agement, of the master and crew of the tow. Ibid.
7. But whenever the tug, under the charge of her own master and crew, and
in the usual and ordinary course of such an employment, undertakes
to transport another vessel, which, for the time being, has neither her
master nor crew on board, from one point to another, over waters
where such accessory motive power is necessary, or usually employed,
she must be held responsible for the proper navigation of both vessels.
Ibid.
8. In a collision which took place in the Ohio river between a steamboat as-
cending and a flat-boat descending, the steamboat was in fault. Pearce
v. Page, 228.
9. When a floating boat follows the course of the current, the steamer must
judge of its course, so as to avoid it. This may be done by a proper
exercise of skill, which the steamer is bound to use. Ibid.
10. Any attempt to give a direction to the floating mass on the river would be
likely to embarrass the steamer, and subject it to greater hazards. A
few strokes of an engine will be sufficient to avoid any float upon
the river which is moved only by the current, and this is the estab
lished rule of navigation. Ibid.
11. In a collision which took place in Elizabeth river, in 1855, between the
steamship Pennsylvania and the steamship Jamestown, the Pennsyl
vania was in fault, and the collision cannot be imputed to inevitable
accident. Union Steamship Co. v. New York and Virginia Steamship
Co., 307.
12. Inevitable accident must be understood to mean a collision which occurs
when both parties have endeavored, by every means in their power,
with due care and caution and a proper display of nautical skill, to
prevent the occurrence of the accident. Ibid.
13. If the night was very dark, it was negligence in the master of the Penn-
sylvania to remain in the saloon until just before the collision occur.
red; and if the night was not unusually dark, there was gross negli.
gence in those who had the management of the deck. Ibid.
14. The helm of the Pennsylvania was put to starboard when it ought not to
have been, and the supposition that she was backing is shown not to
have been correct by the force with which she struck the other vessel,
which had taken every precaution to avoid the danger. Ibid.
15. At Mobile, it is necessary for a vessel drawing much water to lie outside
of the bar and have her cargo brought to her by lighters. Bulkley v.
Naumkeag Steam Cotton Company, 386.
16. The usage is for the lighterman to be engaged and paid by the captain
of the vessel, to give his receipt to the factor for the cotton, and to
take a receipt from the captain when he delivers it on board of the ves-
sel. Ibid.
17. Where a lighterman, thus employed, was conveying bales of cotton to a
vessel lying outside of the bar, but before they were put on board, an
explosion of the boiler threw the bales into the water, by which the cot-
ton was damaged; the vessel was held responsible for the loss upon
being libelled in a court of admiralty, the master having included these
bales in the bills of lading which he signed. Ibid.
18. The delivery of the cotton to the lighterman was a delivery to the mas
ter, and the transportation by the lighter to the vessel the commence-
ment of the voyage, in execution of the contract by which the master
had engaged to carry the cotton to Boston. When delivered by the
shipper and accepted by the master at the place of shipment, the rights
and obligations of both parties became fixed. Ibid.
19. The cases in this court and in England examined. Ibid.
APPELLATE COURT.
1. The laws of Mississippi provide, that where a case is carried up to an ap
pellate court, and the defendant in error is a non-resident, and has
no attorney of record within the State, notice shall be given by publi.
cation in a newspaper of the pendency of said cause, which the appel-
late court shall then proceed to hear and determine. Nations v. John-
son, 195.
2. These directions having been complied with, the jurisdiction of the ap-
pellate court was complete; and the plea, in Texas, of nul tiel record,
properly overruled. Ibid.
3. The American and English cases upon this point examined. Ibid.
BASTARDY.
1. The code of Louisiana makes a distinction between acknowledged natu-
ral children and adulterine children; allowing the former to take as
legatees, but not allowing the latter to do so, except to a small amount.
Gaines v. Hennen, 553.
2. But the legal relations of adulterous bastardy do not arise in this case.
The law examined relative to putative marriages, which are where,
in cases of bigamy, both parents, or either of them, contracted the
second marriage in good faith. The issue of such a marriage is legit-
imate. Ibid.
3. The Louisiana cases, the Spanish law, and the Code Napoleon, examined
as bearing upon this point, and the principles established by them ap-
plied to the present case. Ibid.
4. Clark, the father, was capable of contracting marriage; the consequence
examined of his testamentary recognition of his child's legitimacy.
Ibid.
|