The United States v. Jay Cooke et al.

witnesses, when I asked him to examine the numbers on the K notes and see if he could discover any marks of those numbers having been tampered with, effaced, obliterated, or mutilated in any manner, and he said he could not.

I do not consider it necessary to detain you longer. It is for you to say whether any of these C notes were, in fact, passed to the Government by the defendants, and paid for by the Government with its money; and, if so, whether such notes were ever issued by the United States. In determining the question, as to the issuing of the C notes, a satisfactory conclusion as to whether such notes were printed from genuine plates, gotten up by the Government will, undoubtedly, narrow the inquiry very much. A determination that such notes were printed from such genuine plates would lead to the conclusion, prima facie, that, if such notes got into circulation in the community, they were probably issued by the Government; and thus the burden of proof would be thrown upon the Government to show that they were not issued.

But, after all, the whole case comes back to the question, whether the notes marked C were ever issued by the Government. Upon that question, I am requested by the counsel for the defendants to charge you, that "the burden of proving that the eighteen notes in question, marked C 1 to C 18, are not genuine obligations of the United States "-and by that must be understood obligations issued by the United States-"rests upon the plaintiffs, and, if the evidence be insufficient to establish the fact that such notes are not genuine obligations "—that is, obligations issued by the United States "as aforesaid, the defendants are entitled to a verdict." With the alteration which I have thus made in the wording of the request, I charge you that the proposition is correct.

I am also requested by the counsel for the defendants

The United States v. Jay Cooke et al.

to charge you, that, "in determining whether the eighteen notes in question are genuine obligations, the jury are entitled to take into consideration the fact, that said notes were received as genuine by the assistant treasurer in New York, and passed through his hands, and the hands of other officials connected with the Treasury Department." I decline so to charge. The allegation in the declaration is, that the notes were "supposed to be genuine," by the assistant treasurer and his officers. The language of the request assumes a fact which it is not for the Court to assert, that is, that the notes were "received as genuine." The averment of the declaration, that the notes were supposed to be genuine, is the extent to which the Court has any right to make an assumption as a matter of fact. But, even if the notes were "received as genuine" by the assistant treasurer, that would not bind the Government of the United States in any manner, if the notes were, in fact, not genuine. Nevertheless, you have the right to take into consideration the facts proved on this subject, as to the manner in which these notes were received and handled at the sub-treasury, and the manipulations they underwent at Washington, upon the question as to whether the C notes are spurious or genuine, as that question may bear upon the other question, as to whether they were or were not issued by the United States. But I decline to charge, as matter of fact, that the notes "were received as genuine;" and, even if it were so, it would not be of the slightest consequence in the case. Everything that took place is undoubtedly legitimate evidence, as bearing upon the question as to whether the C notes are genuine notes, in the sense in which I have used the word "genuine"-that is, printed from the same plates from which notes issued by the United States were printed.

I am also requested by the counsel for the defendants to charge you, that, if the defendants honestly believed

The United States v. Jay Cooke et al.

the notes in question to be genuine obligations issued by the United States, and, so believing, and in good faith, passed them to the assistant treasurer of the United States, and the latter, under the like belief, and in good faith, received the notes, and paid for them, the plaintiffs are not entitled to recover, although the notes may not have been genuine obligations issued by the United States. I decline so to charge.

If you shall find for the defendants, on any one of the three propositions which I have stated, your verdict will be for the defendants; that is, if the Government has not satisfied you that the notes came from Jay Cooke & Co., you will find for the defendants; or, if the Government has not satisfied you that it paid its money for the notes to Jay Cooke & Co., you will find for the defendants; or, if you shall find that these C notes were issued by the United States, you will find for the defendants. You must find, by a preponderance of evidence, in favor of the plaintiffs, on all three of the propositions, to entitle them to your verdict. If you shall so find, your verdict will be for $23,630 88.

The jury found a verdict for the plaintiffs, for $23,630 88.

The Steamer Bristol.

DECEMBER, 1870.

THE STEAMER BRISTOL.

THE NARRAGANSETT STEAMSHIP CO. v. JOHN PONTON et al.

COLLISION IN LONG ISLAND SOUND.-STEAMER AND BARK.-FOG.

SPEED.

A steamer and a bark came in collision in Long Island Sound, at night, in a fog so dense that a vessel could not be seen at a distance of more than about 300 feet. The bark was sunk by the collision. The steamer was running at her usual speed of sixteen miles an hour. It was claimed, on behalf of the steamer, that that speed was not excessive, because an ordinary fog-horn could be heard at the distance of half a mile, and the steamer could stop in running less than that distance. It was also claimed, that, if she was not run at her usual speed, she would be so deflected from her course, that her pilots would not be able to find their way, in a fog, from light-house to light-house. It was also claimed, that the bark gave no proper signal of her presence:

Held, That the calculation as to the fog-horn and the stopping of the steamer was too nice a one, and involved too many contingencies, to make it safe to say that sixteen miles an hour is a moderate speed, in a locality so frequented by vessels, for so large a vessel as the steamer, in so dense a fog;

That it was not necessary for the steamer to keep up her speed of sixteen miles an hour, to navigate in safety from light to light;

That the bark had a proper fog-horn, and it was properly blown, and there was no fault on her part;

That the steamer was solely responsible for the collision,

BLATCHFORD, J. These are cross libels growing out of the same collision. It occurred about half-past two o'clock in the the morning, on the 28th of June, 1869, between the barque George S. Brown, then on a voyage from the city of New York, to Cow Bay, in Cape Breton Island, and the steamer Bristol, then on a trip from Fall River, in Massachusetts, to the city of New York. The place of collision was in Long Island Sound, about seven miles east from the Stratford light-ship. The wind was from east to east-northeast. The barque was sailing on

The Steamer Bristol.

her port tack, on the wind, and heading about south or south by east. The course of the steamer was west fiveeighths south. There was a dense fog at the time, so that a vessel could not be seen at a much greater distance than 300 feet off. The stem of the steamer struck the port side of the barque, between the fore and main rigging, and penetrated into the barque a distance of some ten or twelve feet, so that the barque soon sank.

The libel against the Bristol alleges that the collision was caused by the running of the Bristol through the dense fog at a great and unsafe and improper rate of speed; that, when the steamer was first heard and seen from on board of the barque, a horn was being blown on board of the barque, and lights were exhibited on her, and that a horn had been blown on board of her for a considerable time previously; that, between the time the Bristol came in sight of the barque, and the time of the collision, the course of the Bristol was not changed; and that, immediately on the Bristol's being heard and seen from the barque, which was almost simultaneous, the helm of the barque was put hard-a-port.

The answer of the owner of the barque to the cross libel filed by the owners of the Bristol against the owner of the barque, contains, in substance, the same averments as the libel against the Bristol, except that it avers that the Bristol, after coming in sight of the barque, starboarded her helm, and that that movement was, with her great speed, the proximate cause of the collision.

The answer of the Bristol alleges that the wind was a six-knot breeze. An answer was filed on the 4th of August, 1869, sworn to by a person named Bacon. An amended answer, sworn to by the same person, was filed on the 13th of October, 1869. Each of these answers avers, that the rate of speed of the Bristol was not a high rate, and was at the rate of not exceeding six knots an hour. The first answer avers, that that was a fair