Argument for the dismissal. Walker, as principal, and Jones and O'Dowd, as sureties, for the faithful discharge by Walker of his duties as venduemaster in the city of Augusta. The breach alleged was that Walker, having received, as vendue-master, certain goods for sale, and having sold them and received the proceeds in his capacity as vendue-master, failed to account. The defendants pleaded Walker's discharge under the bankrupt act, and the plea was sustained; but the sureties were held liable under the 33d section of that act, notwithstanding the discharge of their principal. Two writs of error were prosecuted upon this judgment to the Supreme Court of Georgia. One by Jones and O'Dowd to reverse the judgment against them, upon the ground that the discharge of Walker was a bar to the suit against them as sureties; and one by the plaintiff in the action, upon the ground that Walker could not avail himself of his discharge, the debt having been created by his defalcation as a public officer, and while acting in a fiduciary capacity. The judgment of the Superior Court in favor of Walker was, on the 31st of October, 1871, reversed by the Supreme Court, and the judgment against the sureties on the same day affirmed. To reverse the judgment of the Supreme Court, O'Dowd prosecuted a writ of error. He had given written notice to both Walker and Jones of his intention to carry the case to this court, and requested their co-operation; but each declined to carry on the controversy longer. The writ (dated by mistake, October 16th, 1871), issued November 10th, 1871, returnable to the first Monday of December following, and was served by filing in the clerk's office, and the case on that day removed by service of the writ. The bond was dated on that same day, but when it was allowed, or when it was filed, did not appear; nor did it appear that any copy was lodged in the office of the clerk of the Supreme Court for the defendant in error. Mr. H. M. Hilliard, for the defendant in error, now moved to dismiss the case on these, among other grounds 1st. Because it had been prosecuted by O'Dowd alone, and without summons and severance of Walker and Jones. Opinion of the court. 2d. Because the judgment was not "final" within the meaning of the Judiciary Act, which gives a writ of error only on judgments which are "final." 3d. Because the writ, the bond, the citation, and the copy of the writ of error for the defendants, were not seasonably served or filed. As to this last ground assigned for dismissing the writ, the reader will, of course, remember that the 23d section of the Judiciary Act enacts that "A writ of error shall be a supersedeas and a stay of execution in cases only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, after rendering the judgment and passing the decree complained of." Mr. J. P. Carr, contra. The CHIEF JUSTICE delivered the opinion of the court. Several grounds are assigned for dismissing this writ. It will be necessary to notice but three of them. The first of these is, that the writ of error is prosecuted by O'Dowd without summons and severance of his codefendants. Formerly this was held to be necessary when one of several defendants desired to prosecute his writ of error alone. But, in the case of Masterson v. Herndon,* we held that such a writ of error would be sustained, if it appeared from the record that the defendants, not joined, had been notified in writing, and had refused to join. In this case it appears, by the record, that written notice was given to the co-defendants of O'Dowd, and that they declined to join. This was equivalent to summons and severance. It is also insisted that the motion to dismiss must be allowed, because the judgment was not final. The judg ment against Walker was reversed, because he was held not entitled to the exemption which he claimed under the Bank 10 Wallace, 418. Opinion of the court. rupt Act, and the judgment against the sureties was affirmed, because they were held not entitled to the benefit of his discharge. We think that both judgments were final, and that both are brought under review by the writ of error. Another reason assigned for dismissal is, that the writ of error, the bond, the citation, and the copy of the writ of error for the defendants, were not seasonably served or filed. It appears, from the record, that the judgment of the Supreme Court was rendered on the 31st of October, 1871, and on the 10th of November, 1871, a writ of error was issued returnable on the first Monday in December, and was served by filing in the clerk's office. The writ is dated on the 16th of October, 1871. This was before the judgment was affirmed, and is obviously a mistake. It does not, however, vitiate the writ. The case was removed by service on the 10th of November. The citation was served on the 3d of February, 1872. This was sufficient to advise the opposite party that the cause had been removed to this court, and was served and returned within the term. It does not, however, appear, from the record, that any copy of the writ was lodged for the defendants in error in the clerk's office of the Supreme Court. It was necessary that such a copy should be filed within ten days to make the writ of error a supersedeas.*. Nor does it appear when the bond was allowed and filed. It bears date of the 10th of November. The allowance is not dated; nor is its filing noted. We are of opinion, therefore, that a writ of error cannot operate as supersedeas; but the motion to dismiss must be DENIED. * Railroad Company v. Harris, 7 Wallace, 574. Statement of the case. THE STEAMER WEBB. 1. Although an engagement by a steamer to tow a sailing vessel does not impose more than an obligation to carry out the contract with that degree of caution which prudent navigators usually employ in similar services, yet there may be cases in which the result is a safe criterion by which to judge of the act which has caused it. And when a steamer undertaking to tow a ship and having a well-known and straight course to pursue, suffered the ship, after towing her for but an hour or an hour and a half, to run aground at the end of a course of nine miles, on a shoal between three and four miles from the proper line of the voyage, the court held the steamer liable, especially as there was very considerable evidence that her compasses were untrue. And this decision was not affected by the fact that the voyage lay through waters where the currents were variable in the direction of their flow (the direction and force, however, being well known), and though for a part of the nine miles there was a thick fog. 2. The court refused to reverse a decree which on the merits they approved because a deposition which ought not to have been read was read before a commissioner to whom the case was referred to compute damages: there being other evidence that the damages were as great as this court finally awarded. 8. Decree in admiralty in the District and Circuit Courts for a greater amount than the sum for which sureties were bound, on stipulations for a discharge of the vessel from the marshal's custody, reformed by this court so as not to exceed that sum. APPEAL from the Circuit Court for the District of Southern New York; the case, as assumed by the court on a considerable body of evidence, which it examined and recapitulated, having been essentially thus: In March, 1859, the steamer Webb, a steamer of good character, belonging to the port of New York and engaged in towing ships at sea, was in Boston, having just then, under charge of a coast pilot named Sherwood, towed a ship to that port. This pilot Sherwood had had twelve years' experience as a coast pilot and was recommended by insurance companies. The owners of the Webb had engaged him to take the steamer back to New York, and they had agreed also with the owners of another ship, then lying at New Bedford, to stop for her on the way and tow her to Statement of the case. New York, and that this towage should be under direction of the same pilot. In these circumstances one Hazard, master of the ship Shooting Star, lying at Portsmouth, New Hampshire, applied to the owners of the Webb to tow her to New York. The owners agreed in writing accordingly "to tow the ship and furnish coast pilot for $625." Having gone to Portsmouth and taken her tow, the Webb, under the pilotage of Sherwood, set off with a good complement of men on her voyage for New York. The course of the voyage lay south, past and round Cape Cod, through the waters that lie between the island of Nantucket on the south side and Barnstable County, Massachusetts, on the north, into what is known as the Vineyard Sound; and so through Long Island Sound to New York. The approaches to the Vineyard Sound (which for the purpose of this case may be considered as beginning with "Handkerchief Shoal" on the east of it, and as you leave the main ocean to enter the passages made by islands and the main land of Massachusetts) abound with shoals and with currents, which last, though close to each other, run in opposite directions. But the currents follow each its own direction, and, like the shoals, are marked with precision upon the charts. About a hundred yards south of Handkerchief Light-a light upon the shoal--the Webb and her tow found themselves at about 2 or 23 o'clock A.M.-nearer the latter time, perhaps, than the former-on the morning of March 23d. This was the exact position where they ought to have been in order to reach New York; and their route to that port was by a single straight course west, three-quarters south, to a light called Cross Rip Light, eleven nautical miles (rather less than thirteen statute or land miles) distant from the Handkerchief. This Cross Rip Light is on a boat where there is a fog-bell, audible in fogs, three miles off. The rate of the vessels as they passed the Handkerchief was about twelve knots an hour. The tide, at this time, had just turned ebb, the effect of which was to make the current for about halfway from Handkerchief to Cross Rip run north, and for the |
