sonally in the matter. It is there said: "The Such being our view of the case, it is unnec " Then, again, at the end of the order are these words, "which [the sentence] will be duly ex[560] ecuted. That which immediately preceded related to the remission of a part of the sentence, and the Secretary was careful to say that this was done by the President in person. The omission of any such language, or implication even, in the words which were added, leaves the order open to the construction that the Secretary was acting all the time on the idea that the personal judgment of the President was required only in reference to that part of the proceeding which involved the exercise of the pardoning power, and that the rest belonged to the Department. The judgment of the Court of Claims is re James H. McKenney, Clerk, Sup. Court, U. 8. JOSEPH SHIPPEN, Piff. in Err., [575] v. THOMAS M. BOWEN. (See S. C. Reporter's ed. 576-583.) Sales-express warranty-creation of--affirma quality or condition of the thing sold, other than as 1. Where the seller makes an affirmation of the Still further, it appears, from the order of " 1887. mained open when President Hayes came into N ERROR to the Circuit Court of the United office. He then took it up as unfinished business, States for the District of Colorado. Reported below, 4 McCrary, 59. Reversed. The history and facts of the case appear in Messrs. George E. Adams and J. M. The rule is well settled that when a party It is equally well settled that in an action on the case for deceit no scienter need be alleged, nor if alleged need it be proved. Schuchardt v. Allens, 68 U. S. 1 Wall. 359 (17:642); Chitty, Pl. 137; Williamson v. Allison, 2 East. 446; Adamson v. Jarvis, 4 Birg. 66: Charnley v. Dulles, 8 Watts & S. 353; People's | Counties to Fund Their Outstanding Indebted Bank v. Kurtz, 99 Pa. 344; Converse v. Blum-ness;" but which instruments, it is alleged, rich, 14 Mich. 108. See also Lockridge v. Fos ter, 4 Scam. 570; Parham v. Randolph, 4 How. (Miss.) 435; Rosevelt v. Fulton, 2 Cow. 129; Miner v. Medbury, 6 Wis. 295; Lewis v. McLemore, 10 Yerg. 206; M'Ferran v. Taylor, 7 U. S. 3 Cranch, 270 (2:436); Glasscock v. Minor, 11 Mo. 655; Fisher v. Mellen, 103 Mass. 503; Collins v. Denison, 12 Met. 549; Elliott v. Boaz, 9 Ala. 772; M'Cormick v. Malin, 5 Blackf. 509; Munroe v. Pritchett, 16 Ala. 785. A vendor by the mere act of selling bonds, notes, etc., without anything more, warrants the title thereto, and the genuineness of the signatures. Terry v. Bissell, 26 Conn. 40; Shaver v. Ehle, 16 Johns. 201; Canal Bank v. Bank of Albany, 1 Hill, 287; Aldrich v. Jackson, 5 R. I. 218; Webb v. Odell, 49 N. Y. 583; Litchfield v. Hutchinson, 117 Mass. 195. It is also undisputed law that an action on the case in tort, for deceit, will lie for a breach of the implied warranty. Schuchardt v. Allens, supra; Williamson v. Allison, 2 East, 446; Adamson v. Jarvis, 4 Bing. 73; S. C. 12 Moore, 241; Cooley, Torts, 500. Our position is that a vendor, by the mere act of sale, affirms, as well as warrants, the genuineness of the signatures; that it is immaterial whether the action is brought upon a false warranty or upon the false representation. The same fact will sustain an action upon either. That an implied warranty without an implied representation is an impossibility. That by the mere fact of offering for sale bonds in his possession, the vendor not only warrants the genuineness of the signatures but distinctly affirms their genuineness; that the implied warranty is a deduction from the antecedent representation. That the vendor, having represented the signatures to be genuine, is held to have thereby warranted them to be genuine. That an implied representation is as binding upon the vendor as an express representation, and that by the mere act of offering bonds or notes for sale the vendor affirms the genuineness of the signatures as fully as he would affirm by an express verbal representation. Lobdell v. Baker, 3 Met. 469; Polhill v. Walter, 8 Barn. & A. 114; Medina v. Stoughton, 1 Salk. 210; Ryall v. Rowles, 1 Ves. 348; Eichholtz v. Bannister, 17 C. B. N. S. 708; Morley v. Attenborough, 3 Exch. 500; Jones v. Ryde, 5 Taunt. 488; Fuller v. Smith, Ryan & M. 49; Gurney v. Womersley, 28 Eng. L.& Eq.256; Thrall v. Newell, 19 Vt. 203; Gresham v. Postan, 2 Car. & P. 540. Mr. G. G. Symes, for defendant in error. Mr. Justice Harlan delivered the opinion of the court: This writ of error brings up for review a judgment of the Circuit Court of the United States for the District of Colorado, in an action brought by the plaintiff in error to recover dam[576] ages for the delivery to him of certain sheets of written and printed paper, purporting to be the valid and genuine bonds, with interest coupons attached, of the County of Clark, in the State of Arkansas, issued under and in accordance with the provisions of an Act of the General Assembly of that State, approved April 29, 1873, entitled "An Act to Authorize Certain were "false and spurious forgeries," imposing no legal obligation whatever upon said county. The plaintiff alleges that, in consideration of a certain sum paid by him in cash to the defendant, the latter sold and agreed forthwith to de liver to him valid and genuine bonds of said county, of the above description, but delivered the said spurious and forged bonds in execution of the terms of such sale and agreement; that the defendant, at the time of such delivery, "falsely and fraudulently represented and warranted" said forged bonds "to be genuine and valid bonds and interest coupons of said county;" that the plaintiff, "relying on such representation and warranty, received and accepted the same from defendant, supposing them to be such genuine and valid bonds and interest coupons;" and that, "by said tortious and wrongful act and fraudulent breaches of said agreement and warranty of genuineness, done and committed by defendant in the delivery by him as aforesaid of such spurious, forged and altered instruments, the plaintiff has been subjected to great loss and damage,” etc. The defendant denies that the bonds and coupons delivered by him were spurious or forged, and avers that they were, in law, genuine, valid obligations of the County of Clark, and were delivered by him in the belief that they were of that character. He also denies that "he ever, at any time, expressly or by implication, warranted said bonds and coupons so sold and delivered by him to plaintiff to be genuine bonds and coupons of said County of Clark." He avers that the plaintiff purchased and received them "at his own risk as to the validity and genuineness thereof, and without any warranty on the part of defendant, express or implied, against such defects or infirmities in said bonds and coupons.' The original complaint and answer contain [577] other allegations; but it is not necessary, in the view we take of the case, to set them out. The plaintiff amended his complaint, adding all the allegations which are essential, under any system of pleading, to support an action for deceit. These allegations were traversed by the defendant, and, upon a trial before a jury, there was a verdict and judgment in his favor. The bill of exceptions states that the plaintiff, to sustain the issues on his part, introduced evidence tending to show that at the date mentioned in the complaint defendant sold to him, for $8,000, ninety-one sheets of paper purporting to be Clark County, Arkansas, funding bonds; that said sheets of paper were forgeries, and not genuine bonds, as they purported on their face to be; that defendant, at the time of sale, expressly affirmed their regularity and validity, although he knew, or had reason to suspect, at the time, that they were not genuine and valid; that plaintiff believed and supposed that they were genuine and valid, and relied upon defendant's representations to that effect; and that plaintiff had no notice or knowledge that defendant was acting in said sale as agent for another person. The defendant introduced evidence tending to show that said papers were genuine and valid Clark County, Arkansas, funding bonds; [578] [579] that at the time of the sale he made no state- | no scienter need be alleged, nor if alleged need ment, representation or warranty as to their gen- be proved. I am unable to concur in the uineness or validity, but on the contrary stated soundness of this proposition." As was that he knew nothing of the circumstances un- We are of opinion that it was error to instruct Lawrence, 4 Cow. 440; Cook v. Moseley, 13 Wend. 278; Chapman-v. Murch, 19 Johns, 290; Hawkins v. Berry, 5 Gilm. 36; McGregor v. Penn, 9 Yerg. 76, 77; Otto v. Alderson, 10 Smedes & M. 476. The plaintiff was clearly entitled to go to the jury on the issue as to an express warranty. But he was, in effect, denied that right by the instruction that he could not recover in this action, unless he proved a scienter. It is true his pleadings also contained every allegation essential to support an action for deceit, apart from the issue as to express warranty. But the cause of action in tort for the breach of the express warranty was not obliterated, or removed from the case, because it was joined with a cause of action for deceit. In Schuchardt v. Allens, 68 U.S. 1 Wall. 359, 368, [17: 642, 645], which was an action on the case for a false warranty on the sale of certain goods the declaration also containing a count for deceit-the court said that it was now well settled, both in English and American jurispru dence, that either case or assumpsit would lie for a false warranty, and that, "Whether the declaration be in assumpsit or tort, it need not aver a scienter; and if the averment be made, it need not be proved." It was also said that, “If the declaration be in tort, counts for deceit may be added to the special counts, and a recovery may be had for the false warranty or for the deceit, according to the proof. Either will sustain the action." See also Dushane v. Bene dict, 120 U. S. 636 [ante, 810] In 1 Chitty's Pleadings, 137, the author says that case or assumpsit may be supported for a false warranty on the sale of goods, and that, "In an action upon the case in tort for a breach of a warranty of goods, the scienter need not be laid in the [582] [No. 295.] Decided May 27, 1887. A States for the Eastern District of Texas. PPEAL from the Circuit Court of the United Opinion below, 18 Fed. Rep. 696. Affirmed. The history and facts of the case appear in the opinion of the court. Mr. Eppa Hunton, for appellants: "Courts of admiralty usually consider the following circumstances as the main ingredients in determining the amount of the reward to be decreed for salvage service: (1) The labor expended by the salvors in rendering salvage service. declaration, nor, if charged, could it be proved." In Lassiter v. Ward, 11 Ired. 444, Ruffin, C. Argued May 6, 1887. J., citing Stuart v. Wilkins, 1 Doug. 18, and Williamson v. Allison, 2 East, 446, said: "It was accordingly there held that the declaration might be in tort, without alleging a scienter, and if it be alleged in addition to the warranty, that it need not be proved. The doctrine of the case is that, when there is a warranty, that is the gist of the action, and that it is only when there is no warranty that a scienter need be alleged or proved. It is nearly a half century since the decision, and during that period the point has been considered at rest, and many actions have been brought in tort, as well as ex contractu, on false warranties." And so in House v. Fort, 4 Blackf. 293-4, it was said that [583] "The breach of an express warranty is of itself a valid ground of action, whether the suit be founded on tort or on contract;" and that, "In the action on tort, the forms of the declaration are, that the defendant falsely and fraudulently warranted, etc., but the words falsely and fraudulently, in such cases, are considered as only matters of form." But as to the scienter, the court said, "that is not necessary to be laid, when there is a warranty, though the action be in tort; or, if the scienter be laid, in such a case, there is no necessity of proving it." See also Hillman v. Wilcox, 30 Me. 170; Osgood v. Lewis, 2 Harr. & G. 495, 520; Trice v. Cockran, 8 Gratt. 450; Gresham v. Postan, 2 Car. & P. 540. (2) The promptitude, skill, and energy displayed in rendering the service and saving the property. (3) The value of the property employed by the salvors and the danger to which it was exposed. (4) The risk incurred by the salvors in securing the property from impending peril. (5) The value of the property saved. (6) The degree of danger from which the property was rescued." The Blackwall, 77 U. S. 10 Wall. 13 (19: 874). It will be found that every one of these circumstances formed ingredients in this case. The risk was that of wrecking the lighter and steam tug, at the possible risk of life. Risk of life is not a necessary ingredient, but it places the salvors in a higher position of merit and entitles them to a more liberal compensation. Spencer v. The Charles Avery, 1 Bond. 119; The William Beckford, 3 C. Rob. 355; The Em ulous, 1 Sumn. 214; Tyson v. Prior, 1 Gall. 133; The Henry Eubank, 1 Sumn. 400; Bearse v. 340 Pigs of Copper, 1 Story, 326; Mason v. The Blaireau, 6 U. S. 2 Cranch, 240 (2: 266). Mr. John H. Thomas, for appellees: Both of the appellants' tugs were employed by the agent of The Hesper, and sent to her assistance. Their right to compensation was not like that of ordinary salvors, contingent on success. They were entitled to compensation for the time and labor they might expend, whether their operations should be successful or otherwise. The Sabine, 101 U. S. 390 (25: 984); The Undaunted, 1 Lush. 90; The Kellar, L. R. 6 P. D. 97; The H. B. Foster, 1 Abb. Adm. 234. Even if their right to compensation had been contingent on success, a proper measure of award would have been the amount for which such service would probably have been undertaken, for compensation dependent upon such contingency. Ehrman v. The Swiftsure, 4 Fed. Rep. 467; Baker v. Hemenway, 2 Lowell, 501; The James T. Abbot, 2 Sprague, 101; The M. B. Stetson, 1 Lowell, 119, 123. The award of $4,200 is 44 percent of $100,000, the value of The Hesper. The amount and 1. A salvage service which does not involve risk Brooks v. The Adirondack, 2 Fed. Rep. 387; | Atlas Steamship Co. v. The Colon, 4 Fed. Rep. [257] 469; 18 Blatchf. 277; The Emily B. Souder, 7 Ben. 550; Arnold v. Cowie, L. R. 3 P. C. 589. nearly opposite the life saving station. The Hesper was an iron propeller, and built in Hartlepool, in England, 1881, at a cost of twentytwo thousand pounds; her registered tonnage is, gross, 1,654 tons; net, 1,069 tons. Her freight capacity is 1,950 tons. She has powerful engines of 750 horse power, with steam windlasses and winches, and on said 12th of Decem The circuit court, on appeals in admiralty, takes up the case de novo. It cannot, like other appellate courts, simply affirm or reverse the decree appealed from. It must render its own decree, as the whole testimony before it may render proper. There was no impropriety, therefore, in the circuit court decreeing for aber was well found and well manned in every smaller amount than that decreed for by the district court. The Lucille, 86 U. S. 19 Wall. 73 (22: 64); The Charles Morgan, 115 U. S. 75 (29: 318); The Saratoga v. 488 Bales of Cotton, 1 Woods, 75; The Hesper, 18 Fed. Rep. 696; The Gallileo, 29 Fed. Rep. 538. Mr. Justice Blatchford delivered the opinion of the court: This is a libel in rem, in admiralty, brought in the District Court of the United States for the Eastern District of Texas, by Robert Irvine and Charles L. Beissner, owners of the steam lighter Buckthorn and the steam tug Estelle, against the steamship Hesper, in a cause of salvage. The libel sets forth salvage services rendered to the Hesper by the Buckthorn and the Estelle, in pulling her off from the shore, at Galveston Island, about twenty-five miles from Galveston, Texas, where she had grounded on her voyage from Liverpool to Galveston, with a cargo of salt, in December, 1882. The answer of the owners of the Hesper avers their readiness to pay a reasonable compensation for the services actually rendered by the two vessels, but denies that more than compensation for actual services and time is due, and denies that the services rendered were salvage services. Proofs were taken, and the district court, in April, 1883 (18 Fed. Rep. 692), made a decree adjudging that the libelants were entitled to compensation in the nature of salvage, for the saving of the Hesper and her cargo, and allowing to the libelants, for the services of each of the two vessels, $3,000, and to the owners of the schooner Mary E. Clark, and men who had been employed to load upon her part of the cargo of the Hesper, and to jettison such cargo, $2,000; and, the claims of the owners of that schooner and of those men having been settled by the Hesper, it was ordered that the $2,000 should go to the Hesper. Both parties gave notice of appeal from this decree to the circuit court. The libelants perfected their appeal, but the claimants of the Hesper did not perfect theirs. Some further proof was taken in the circuit court, and, on the 13th of November, 1883, that court, having heard the cause, filed the following findings of fact and conclusions of law: respect. She was laden with a cargo of about 900 tons of salt. "2. That, when the Hesper went ashore, her engines were slowed down and she was making about four knots per hour. She struck easily without shock and remained upright. Her draft was then thirteen feet nine inches. The sea was smooth and there was very little wind; what there was was from the south, and the ship headed, when she struck, northeast by north. Kedge anchors were immediately put out to the east southeast, and efforts made to get the ship off in that direction, with the ship's engines heaving on those anchors. At the same time, a message was sent overland to Galveston, [258] the nearest port, to the ship's agent, to send assistance. "3. That the agent of the ship applied to the agent of the tug Estelle, and procured that tug to go to the assistance of the Hesper. The Estelle was a long, narrow, deep boat, drawing about eight feet eight inches, and was the most powerful towboat in Galveston Harbor, and had aboard the usual appliances of such boats. The Estelle reached the Hesper about 5 P. M. of the 12th of December and reported. The master of the Hesper endeavored to bargain with the master of the Estelle as to the cost of pulling the Hesper off, but the master of the Estelle refused to make any agreement, on the ground that he did not know how much labor and time it would take. A line was then given the Estelle, from the stern of the Hesper, which was then more off the shore than the bow, and the Estelle hauled on said line for about two hours, during which time the crew of the Hesper, with some four or five hands from the life saving station, were throwing over cargo. No appreciable result came from this towing of the Estelle, and she desisted on the orders of the master of the Hesper. "4. That, in the meantime, the sea, which had been smooth, with very little swell, bad become more turbulent and there was a very decided increase in the ground swell from the southeast. No so much, however, but that small boats were flying around the Hesper, and life-boats were running easily to and from shore. At this time of stopping hauling by the Estelle the master of the Hesper requested the Estelle to come alongside and run a heavy anchor out seaward from the Hesper, both to keep the Hesper from drifting further in, and for the Hesper to heave on to pull herself off. This the master of the Estelle refused to do, on the ground that there was too much sea on, and that he would thereby endanger his own boat, and thereupon the Estelle, taking aboard the Hes"1. That, about 5.45, A. M., of the 12th day per's agent, who had come overland, proceedof December, A. D. 1882, the steamship Hes-ed back to Galveston, to procure more assistper, bound on a voyage from Liverpool to Gal-ance. It was then found that the Estelle was veston, being out of her course, ran aground at making some water from a leak caused by a the southwest side of Galveston Island, about defect in the staff of the stuffing box, which twenty miles southwest from Galveston, and was not tight enough, and was worked loose "This cause came on to be heard on the transcript and evidence, and was argued. Whereupon, the court, being advised of the evidence, finds the following as the facts of the case: |