community, separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them; which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It tries them, not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality. It is a case, too, of first impression, so far as we are advised, for, if the question has been mooted heretofore in any courts of the United States, the jurisdiction has never before been practically asserted as in the present instance. The provisions now contained in sections 2145 and 2146 of the Revised Statutes were first enacted in section 25 of the Indian In

tercourse Act of 1834. 4 Stat. at L., 733. Prior

(See S. C., Reporter's ed., 579–577.)

Action to set aside deed of trust-effect of acknowl edgment.

* In a suit to set aside a deed of trust, executed to and wife, and the acknowledgment of which was secure the payment of a note, signed by husband certified as required by law, it was in proof that the wife signed the note and the deed, having an opporfore an officer competent to take her acknowledgtunity to read both before signing them; she was bement, and he came into her presence, at the request of the husband, to take it; and she knew or officer, as well to what property the deed referred could have ascertained, while in the presence of the as the object of its execution; held, That the certificate must stand against a mere conflict of evidelivered the deed, or had its contents explained to dence as to whether she willingly signed, sealed and her by the officer, or was examined privily and apart from her husband; and that even if it be only prima be impeached, in respect to those facts, except upfacie evidence of the facts therein stated, it cannot on proof which clearly and fully shows it to be false or fraudulent. [No. 129.]

Argued Nov. 16, 19, 1883. Decided Dec. 17, 1883.

APPEAL from the Supreme Court of the Dis

trict of Columbia.

The bill in this case was filed in the court be

to that, by the Act of 1796, 1 Stat. at L., 469, and the Act of 1802, 2 Stat. at L., 139, offenses committed by Indians against white persons low, by the appellant, to vacate and have deand by white persons against Indians, were spe-clared null and void, as fraudulent of her rights, cifically enumerated and defined, and those by a deed of trust, securing a note for $8,000. alIndians against each other were left to be dealt leged to have been obtained through a conspiwith by each Tribe for itself, according to its lo- racy of the officer pretending to have taken her cal customs. The policy of the government in acknowledgment to the same with other persons, that respect has been uniform. As was said by including her husband, and for an injunction Mr. Justice Miller, delivering the opinion of the to prevent the sale of the premises under the court in U. S. v. Joseph, 94 U. S., 614, 617 said deed of trust. [XXIV., 295, 297], "The Tribes for whom the Act of 1854 was made were those semi-independent Tribes whom our government has always recognized as exempt from our laws, whether within or without the limits of an organized State or Territory and, in regard to their domestic government, left to their own rules and traditions, in whom we have recognized the capacity to make treaties, and with whom the governments, state and national, deal, with a few exceptions only, in their national or tribal character and not as individuals."

To give to the clauses in the Treaty of 1868 and the agreement of 1877 effect, so as to uphold the jurisdiction exercised in this case, would be to reverse in this instance the general policy of the government towards the Indians, as declared in many statutes and treaties, and recognized in many decisions of this court, from the beginning to the present time. To justify such a departure, in such a case, requires a clear expression of the intention of Congress, and that we have not been able to find.

It results that the First District Court of Dakota was without jurisdiction to find or try the indictment against the prisoner, that the conviction and sentence are void, and that his imprisonment is illegal.

The writs of habeas corpus and certiorari prayed for will, accordingly, be issued.

Upon the hearing of the case at the Special Term of the court below, a decree was entered dismissing the bill.

This decree having been affirmed, on appeal, at the General Term of said court, the complainant appealed to this court.

The facts of the case are stated by the court. Messrs. Enoch Totten and Fred W. Jones, for appellant:

It is essential to the efficacy of a conveyence by a married woman of her real estate, that it be executed and acknowledged in the manner prescribed by the statutes.

Mott v. Smith, 16 Cal., 533; Rumfelt v. Clemens, 46 Pa., 455; Colburn v. Kelley, 61 Pa. St., 314; Clark v. Thompson, 12 Pa., 274.

To be valid, the examination and acknowledgment must be taken out of the presence of her husband; "this is indispensable."

Rhea v. Rhenner, 1 Pet., 105; McCandless v. Engle 51 Pa., 309; Loudon v. Blythe, 27 Pa. St., 22; Miltenberger v. Croyle, 27 Pa., 170; Michener v. Cavender, 38 Pa., 334; Bank v. Copeland, 18 Md., 305; Barnet v. Burnet, 15 Serg. & R., 72.

A deed obtained from a married woman by coercion of any kind is void as to her.

Richardson v. Hittle, 31 Ind., 119; Wiley v. Prince,21 Tex.,639; Schrader v.Decker, 9 Pa. St., *Head note by Mr. Justice HARLAN. NOTE.-Acknowledgment of deed by married woJames H. McKenney, Clerk, Sup. Court, U. S. man; parol evidence to contradict; interested officer Cited-112 U. S., 100, 550. See note to Drury v. Foster, 69 U. S.. XVII., 780.

True copy. Test:

14; Louden v. Blythe, 16 Pa. St.,532; O'Neal v. Robinson, 45 Ala., 533; Wilson v. Bull, 10 Ohio, 250; Drury v. Foster, 2 Wall.,24 (69 U.S., XVII.,780). Subsequent parol declarations of the wife will not cure defective execution or acknowledg

ment.

Watson v. Bailey, 1 Binn., 470; Jourdan v. Jourdan, 9 Serg. & R., 268.

The acts of a married woman are not voidable only, like those of infants, etc., but are in géneral absolutely void.

Elliott v. Peirsol, 1 Pet., 338.

This deed of trust conveyed certain real estate, in the City of Washington, the property of Mrs. Young, to the appellees, Duvall and Holtzman, in trust to secure the payment of a note executed by the grantors, whereby they promised to pay to the order of John Little, two years after date, at the National Metropolitan Bank, the sum of $8,000, with interest at the rate of ten per cent until paid. Neither Little, nor the present holder of the note, had any knowledge of the circumstances attending the execution of the deed. Default having occurred in the pay

Messrs. Jos. H. Bradley and A. B. Duvall, ment of the debt so secured, the trustees adverfor appellees.

Mr. Justice Harlan delivered the opinion of the court:

tised the property for sale at public auction. Thereupon, Mrs. Young instituted this suit for the purpose of preventing such sale and to obtain a decree declaring the deed of trust fraudulent and void, and requiring it to be surren

It is provided by the Revised Statutes of the United States, relating to the District of Colum-dered for cancellation. bia, that 'When any married woman shall The bill sets forth several grounds upon which be a party executing a deed for the conveyance relief to that extent is asked, but those only deof real estate or interest therein, and shall only serve serious consideration which are embraced be relinquishing her right of dower, or when by averments to the following effect: that the she shall be a party with her husband to any contents of the deed were never explained to her; deed, it shall be the duty of the officer author- that she signed it because she was required, orized to take acknowledgments, before whom dered and commanded to do so by her husband she may appear, to examine her privily and and a person who was with him; that its conapart from her husband, and to explain to her tents were never known or explained to her by the deed fully;" further, "if upon such privy the officer; that so far from her having been exexamination and explanation, she shall acknowl-amined, in reference to the deed, privily and edge the deed to be her act and deed, and shall declare that she had willingly signed, sealed and delivered the same, and that she wished not to retract it, the officer shall certify such exami-edged and delivered it. nation, acknowledgment and declaration, by a certificate annexed to the deed and under his hand and seal," to the effect indicated in the form prescribed by the statute. R. S. Dist. Col., sec. 450.

It is also provided that "When a privy examination, acknowledgment and declaration of a married woman is taken and certified and delivered to the recorder of deeds for record, in accordance with the provisions of this (the 14th) chapter, the deed shall be as effectual in law as if she had been an unmarried woman; but no covenant contained in this deed shall in any manner operate upon her or her heirs, further than to convey effectually her right of dower or other interest in the real estate which she may have at the date of the deed." Ib., sec. 452.

These statutory provisions being in force, there was placed upon record in the proper office in the District of Columbia, on the 17th day of November, 1875, a deed of trust purporting to have been executed by Mark Young and Virginia Young, his wife, and to have been, on the same day, acknowledged before B. W. Ferguson, a justice of the peace in and for the District of Columbia. The certificate of that officer, under his hand and seal, shows that the grantors were personally known to him to be the persons who executed the deed; that they personally appeared before him, in this District, "and acknowledged the same to be their act and deed, and the said Virginia Young, wife of said Mark Young, being by me (him) examined privily and apart from her husband, and having the deed aforesaid fully explained to her, acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered the same, and that she wished not to retract it." 109 U. S.

U. S., Book 27.

apart from her husband, the latter remained in the presence of herself and the officer on the occasion when it is claimed she signed, acknowl

It was in proof that Mrs. Young signed the note and the deed, having an opportunity to read papers before signing them; she was before an officer competent under the law to take her acknowledgment, and he came into her pres ence for the purpose of receiving it; he so came at the request of the husband, who expected, by means of the executed deed of trust, to secure a loan from John Little of the amount specified in the note; and she knew or could readily have ascertained, while in the presence of the officer, as well to what property the deed referred as the object of its execution. There is, however, a conflict in the evidence as to whether she willingly signed, sealed and delivered the deed, or had its contents fully or at all explained to her by the officer, or was examined privily and apart from her husband.

It is not necessary to enter upon a review of the adjudged cases bearing upon the general question of the effect to be given to the certificate of an officer taking an acknowledgment of a married woman to a conveyance of real estate; for, if it be assumed, for the purposes of this case, that it is only prima facie evidence of the facts stated in it, we are of opinion that the integrity of the certificate before us has not been successfully impeached. The certificate of the officer states every fact essential, under the statute, to make the deed, upon its being delivered for record, as effectual in law as if Mrs. Young was an unmarried woman. The duties of that officer were plainly defined by statute. It was incumbent upon him to explain the deed fully to the wife, and to ascertain from her whether she willingly signed, sealed and delivered the same, and wished not to retract it. The responsibility was upon him to guard her against coercion or undue influence upon the part of the

Argued Apr. 2, 3, 1883. Decided Dec. 17, 1883.

the Commonwealth of Massachusetts. N ERROR to the Supreme Judicial Court of

husband, in respect of the execution and deliv-|ceedings were instituted by such owners in the U. ery of the deed. To that end he was required S. District Court for New York, under the Act of 1851, to limit their liability; held, that said proceedto examine her privily and apart from the hus-ings, properly pleaded and verified, superseded the band. These facts were to be manifested by a actions in other courts, and that it was error to procertificate under his hand and seal. Of neces- ceed further therein. sity, arising out of considerations of public pol[No. 82.] icy, his certificate must, under the circumstances disclosed in this case, be regarded as an ascertainment, in the mode prescribed by law, of the facts essential to his authority to make it; and if, under such circumstances, it can be contradicted, to the injury of those who in good faith have acted upon it-upon which question we express no opinion-the proof to that end must be of such a character as will clearly and fully show the certificate to be false or fraudulent. Ins. Co. v. Nelson, 103 U. S., 544, 547 [XXVI., 436]. The mischiefs that would ensue from a different rule could not well be overstated. The cases of hardship upon married women that might occur under the operation of such a rule are of less consequence than the general insecurity in the titles to real estate which would inevitably follow from one less rigorous.

It is sufficient for the disposition of this case to say that, even upon the assumption that the certificate is only prima facie evidence of the facts stated in it, the proof is not of that clear, complete and satisfactory character which must be required to impeach the official statements of the officer who certified Mrs. Young's acknowledgment of the deed in question.

The decree must, therefore, be affirmed. It is 80 ordered.

This action was brought in the court below, by the defendant in error, to recover for the loss of certain goods, shipped for New York, by the plaintiff's agents at Providence, May 22, 1868, on the defendant's vessel, The Oceanus, which are alleged to have been damaged and destroyed by fire through the negligence of the defendant.

The defendant set up, as one of its defenses, certain proceedings which had been instituted in the District Court of the United States for the Southern District of New York, under the Act of March 3, 1851, limiting the liability of ship-owners.

At the first trial the case was reserved for the consideration of the full court, which subsequently ordered a trial. Mfg. Co. v. P. & N. Y. S. S. Co., 113 Mass., 495.

The trial resulted in a verdict and judgment in favor of the plaintiff for $8,104.34, with costs amounting to $3,060.15; Hill Mfg. Co. v. P. & N. Y. S. S. Co., 125 Mass., 292. Whereupon, the defendant sued out this writ of error.

A fuller statement of the history and facts of the case appears in the opinion of the court.

Messrs Joseph H. Choate, Moorfield Storey and J. D. Ball, for plaintiff in error:

The court below erred in proceeding in deafter its own jurisdiction had ceased. fiance of the injunction of the district court, and

The substantial effect of the Act of 1851 and the rules, taken together, is to make adequate provision that all claims of a maritime character, growing out of a single disaster contemplated by the Act, be presented and tried in one proceeding, and to restrict the remedy in such

Limited liability proceedings-award of injunc-a case to a proceeding in rem against the vessel tion-rules regulating proceedings-loss by fire and freight, withholdingall remedy in personam, -superseding actions. or limiting the latter to the value of the vessel and freight.

*1. Proceedings in the District Court of U.S., under the Act of 1851, 9 Stat. at L., 635, to limit the liability of ship-owners for loss or damage to goods, supersede all other actions and suits for the same loss or damage in the State or Federal Courts, upon the matter being properly pleaded therein.

2. The effect of such proceedings, in superseding other actions and suits, does not depend upon the award of an injunction by the district court, but upon the object and intrinsic character of the proceedings themselves, and the express language of

the Act of Congress.

3. The power of Congress to pass the Act of 1851, and of this court to prescribe the Rules adopted in December Term, 1871, for regulating proceedings under the Act, re-affirmed.

4. Loss and damage by fire on board of a ship are within the relief of the 3d, as well as the 1st, section

of the Act.

5. Goods transported by steamer from Providence to New York were injured by fire on board the vessel at her dock in the latter place, and suits for damage were commenced against the owners of the steamer in New York and Boston; thereupon pro*Head notes by Mr. Justice BRADLEY.

NOTE.-Liability of carrier by water for loss or damage of goods. See note to Moore v. Trans. Co., 65 U. S., XVI., 674.

The Genesee Chief v. Fitzhugh, 12 How., 443; The Scotland,105 U. S.,24 (XXVI., 1001); In Re L. I. Trans. Co., 5 Fed. Rep., 599; In the Matter of the Prov. & N. Y. Steamship Co., 6 Ben., 124; Norwich Co. v. Wright, 13 Wall., 104 (80 Ú. S., XX., 585).

The question of limitation or no limitation under the Act of 1851 is, in its nature, an admiralty question, which, when raised by the proper procedure in rem, none but an admiralty court can determine; and, as soon as its jurisdiction has attached, that of the state court is necessarily terminated or suspended until its decision, which, on that admiralty question, is res judicata.

Novion v. Hallett, 16 Johns., 327; Le Caur v. Eden, Doug.,594; Slocum v. Mayberry,2Wheat., 1; Gelston v. Hoyt, 3 Wheat., 246; Steam Nar. Co. v. Merch. Bk., 6 How., 344.

There was no evidence before the jury,tending to show that the fire was caused by the defendant's neglect, within the meaning of the statute.

Kendall v. Boston, 118 Mass., 234; Joy v.

Winnisimmet Co., 114 Mass., 63; March. Bk. v. | occurred in May, 1868; the action was comState Bk., 10 Wall., 665 (77 Ú. S., XIX., 1024]; Ryder v. Wombwell, L. R., 4 Exch., 39; Giblin v. McMullen, L. R., 2 P. C., 335; Stubley v. L. &N. W. R. R. Co., L. R., 1 Exch., 13; Crafter v. Met. R. R. Co., L. R., 1 C. P., 300; Toomey v. London, etc., Ry. Co., 3 C. B. (N. S.), 146; Cornman v. Eastern Counties R. R. Co., 4 H. & N., 781.

Messrs. Josiah G. Abbott and Samuel A. B. Abbott, for defendant in error:

The only purpose of the Act of 1851 is to exempt owners of ships from the burdensome liability to which they were held by the common law as common carriers for the acts or negligence of their agents or servants, without their knowledge or assent, not to lessen their responsibility for their own willful or negligent

acts.

Moore v. Trans. Co., 24 How., 1 (65 U. S., XVI., 674); Walker v. Trans. Co., 3 Wall., 150 (70 U. S., XVIII., 172).

By the Judiciary Act of 1789, 1 Stat. at L., 76, the common law remedy is expressly reserved to state courts, where the common law can give a remedy.

menced in September, 1870. The defendants first put in an answer denying the allegations of the declaration; but averring that if the goods were delivered to them for the purpose stated, they were delivered to and received by them to be transported to the City of New York over Long Island Sound, not being river or inland navigation, and were safely transported to New York in their steamship Oceanus, and that the damage, if any, was caused by fire happening to said steamship at her dock in New York, and said fire was not caused by the neglect or design of the defendant, who was the owner of said steamship, but occurred without their privity or knowledge; and they pleaded the 1st and 3d sections of the Act of Congress, approved March 3, 1851 [9 Stat. at L., 635], entitled: "An Act to Limit the Liability of Ship-Owners, and for Other Purposes;" the 1st section of which provided as follows, to wit:

"That no owner or owners of any ship or vessel shall be subject or liable to answer for or make good to any one or more person or persons any loss or damage which may happen to any goods or merchandise whatsoever, which shall This gives the state courts concurrent juris-be shipped, taken in or put on board any such diction.

The common law affords a complete remedy, if the loss by fire occurred with the privity or knowledge of the owners, and the liability can be enforced at common law in the simplest and most efficient manner.

Sutton v. Mitchell, 1 T. R., 18; Wilson v. Dickson, 2 B. & Ald., 2; Walker v. Ins. Co., 14 Gray, 288.

Jurisdiction having once attached in the state court, by bringing this action, it cannot be defeated by subsequent proceedings in the Federal Courts.

Smith v. McIver, 9 Wheat., 532; Wallace v. McConnell, 13 Pet., 136; Taylor v. Carryl, 20 How., 583 (61 U. S., XV., 1028); Mallett v. Dexter, 1 Curt. (C. C.), 178; Johnson v. Bishop, 1 Wool., 324.

The district court has no power to enjoin against the prosecution of a suit in a state court. This was expressly provided by the Act of Congress of 1793, 1 Stat. at L., 346, which has never been repealed, either expressly or by implication. Such have been the decisions of this court even in cases of bankruptcy.

Peck v. Jenness, 7 How., 625; Taylor v. Carryl (supra); McKim v. Voorhies, 7 Cranch, 279; Diggs v. Wolcott, 4 Cranch, 179; Watson v. Jones, 13 Wall., 679 (80 U. S., XX., 666); Campbell's Case, 1 Abb. (U. S.), 185; Dial v. Reynolds, 96 U. S., 340 (XXIV., 644).

Mr. Justice Bradley delivered the opinion of the court:

The writ of error in this case brings up for consideration a judgment of the Supreme Judicial Court of Massachusetts rendered in an action brought by the Hill Manufacturing Company against the Providence and New York Steamship Company as common carriers, to recover damages for the loss of certain goods delivered by the plaintiffs to the defendants at Providence, Rhode Island, to be transported to the City of New York; which goods, it is alleged, were, by the negligence of the defendants, burned and injured by fire. The loss is stated to have

ship or vessel, by reason or by means of any fire happening to or on board the said ship or vessel, unless such fire is caused by the design or neglect of such owner or owners."

And the 3d section of said Act provided as follows, to wit:

"That the liability of the owner or owners of any ship or vessel for any embezzlement, loss or destruction by the master, officers, mariners, passengers or any other person or persons, of any property, goods or merchandise shipped or put on board such ship or vessel, or for any loss, damage or injury by collision, or for any act, matter or thing, loss, damage or forfeiture done, occasioned or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel and her freight then pending."

The defendants subsequently amended their answer by adding a particular statement of the manner in which the loss occurred, namely: by a fire at New York, which commenced in a building on the wharf or pier at which the steamship lay after her arrival, and was rapidly communicated to the vessel, which was burnt to the water's edge, together with most of her cargo, including not only the goods of the plaintiffs, but a large quantity of goods of other persons, greatly exceeding in amount the value of the defendants' interest in the vessel and her freight then pending. The amended answer further stated, that the defendants having been sued in the present case and in other cases in New York City and elsewhere, for injuries to said cargo by said fire, and desiring as well to contest their liability and the liability of the steamer, for the loss and damage occasioned by the fire, as also to claim the benefit of the limitation of liability provided for in the 3d and 4th sections of said Act of Congress, on May 14, 1872, filed in the proper District Court of the United States having jurisdiction thereof, to wit: the District Court for the Southern District of New York, pursuant to said Act and the rules of the Supreme Court of the United States

that said notice had been served on the said Hil Manufacturing Company, as well as on all other claimants, pursuant to said monition; and said district court duly made an order restraining the further prosecution of all and any suit or suits against the defendants in respect of any such claim or claims.

The answer then referred to a certified copy of the libel and the proceedings thereon, annexed to and made part of the answer, and also made profert of said libel and proceedings, and concluded as follows:

"And these defendants further say that said fire, and the injury thereby caused or occa sioned, was without the privity or knowledge of these defendants. And these defendants, further answering, say that if the plaintiffs have any claim by reason of any injury to said cotton cloth, it cannot be enforced in this action, but can only be enforced in said suit in said district court, and then and there only under and pursuant to said Act of Congress. And these defendants, further answering, say that said steamer Oceanus was not a canal-boat, barge or lighter, and was not used in rivers or inland navigation, and that said voyage from Provi

in that behalf, their libel and petition, setting forth the facts and circumstances on and by reason of which such exemption from and limitation of liability were claimed, and offering to pay into said district court the amount of the defendants' interest in said vessel and freight, or to give a stipulation with sureties for the payment thereof into said court whenever the same should be ordered, praying relief in that behalf and further praying that said district court would cause due appraisement to be had of the amount or value of the interest of said defendants in said steamer and her freight for said voyage, and would either order the same to be paid into said district court, or a stipulation to be given by the defendants with sureties for the payment thereof into said district court whenever ordered; and that said district court would issue a monition against all persons claiming damages for the loss, destruction, damage and injury occasioned by said fire on board of said vessel, citing them to appear before said district court and make due proof of their respective claims at a time to be therein named; and also praying that said district court would designate a commissioner, before whom such claims should be presented in pursuance of said moni-dence to said City of New York was not in rivtion; and that if, upon the coming in of the re- ers or inland navigation; and that an injuncport of said commissioner and confirmation tion has been issued by said district court thereof, it should appear that said defendants against said Hill Manufacturing Company, rewere not liable for such loss, damage, destruc- straining and enjoining them from the further tion and injury, it might be so finally decreed by prosecution of this suit, and that said injuncsaid district court; otherwise, that the moneys tion has been duly served on said Hill Manupaid or secured to be paid into said district court facturing Company; and further, that said Hill as aforesaid, after payment of the costs and ex- Manufacturing Company sued in this court penses, should and might be divided pro rata the Boston & Lowell Railroad Company for the amongst the several claimants in proportion to alleged loss and injury complained of in the the amount of their respective claims; and pray- declaration in this cause to the cotton cloth ing that, in the meantime and until the final therein mentioned, and recovered therein a judgment should be rendered, said district judgment against said Boston & Lowell Railcourt would make an order restraining the fur-road Company for said alleged loss and injury, ther prosecution of all and and any suit or suits which judgment was settled, paid and satisfied.” against said defendants in respect to any such Upon the filing of this answer the case was claim or claims; that upon said libel said dis-opened to a jury, but before any verdict was trict court caused due appraisement to be had and made of the amount or value of the interest of said defendants in said steamer and her freight for said voyage, and duly made an order for the giving by the defendants of a stipulation with sureties for payment thereof into court whenever the same should be ordered.

taken the case was reserved, upon the report of the Judge who presided at the trial, for the consideration of the full court. In September Term, 1875, it was ordered by the Supreme Ju dicial Court that the case do stand for trial. Whereupon, the defendants filed the following objections, viz:

"And now, with the view of having this ac tion taken to the Supreme Court of the United States upon a writ of error, if the final judg

The answer further stated that the defendants; pursuant to the order of said district court, entered into a stipulation, with two sureties, to pay the value of said interest and freight as soment therein in this honorable court shall be appraised into said district court whenever ordered, which stipulation was approved, and said order having been complied with, a monition was thereupon issued by said district court against all persons claiming damages for the loss, destruction, damage and injury occasioned by said fire on board said steamer, citing them to appear before said district court and made due proof of their respective claims at or before a certain time named in said monition, to wit: at or before the 15th day of October, A. D. 1872, which time was at least three months from the issuing of said monition; and designating George F. Betts, Esq., a commissioner of said district court, as the commissioner before whom such claims should be presented, in pursuance of said monition, and ordering public and other notice of said monition as therein set forth, and

against the defendants, and for the purpose of saving the rights of the defendants, and so that their going to trial shall not be construed a waiver of their rights or of the objections herein, said defendants come and object to and protest against the ruling and decision of this honorable court ordering and directing said action to stand for trial, and also the ruling of this honorable court that if the loss complained of by the plaintiff was occasioned by the neglect of defendants it must have been with their privity or knowledge and was not within the Act of Congress limiting the liability of ship-owners; also the rulings that the proceedings in the District Court of the United States did not affect the jurisdiction of this honorable court."

In April Term, 1876, the cause came on for trial, and the defendants, by leave of the court,