cordingly execute to the Trust Company its guaranty, which was delivered to the Trust Company at the same time and place that Mumford assigned to the company the bond and mortgage. Mumford received the consideration money for the assignment and guaranty, and applied the funds to payment of his indebtedness to the bank. His negotiation of the sale (as is admitted by the pleadings) was with the knowledge and assent of the bank, and for the mutual benefit of himself and of the bank. The guaranty executed by the bank recites that Mumford being indebted to the bank had proposed, as is to be inferred to the bank, to sell the bond and mortgage for the purpose of applying the funds of the first six installments upon his indebtedness to the bank, upon receiving from the bank their guaranty of the said installments and interest thereon, to enable him to effect the sale, and that Mumford, in pursuance of that arrangement, had executed an assignment of the bond and mortgage to the Trust Company, with a covenant guarantying the collection of the principal and interest, and then in consideration of the premises, and of one dollar paid by the Trust Company, the bank guaranties to the company the final collection of the said installments, and of the interests thereon, and reserves to itself the right, upon any default in payment of principal or interest, to pay the amount then unpaid to the company, and to have the bond and mortgage assigned to the bank, if the bank so elect. The mortgaged premises were sold on foreclosure, and on a final sale on 24th November, 1851, only realized $5,150, which was their fair value on the last-mentioned day. Ingersoll was insolvent, and removed from the State, and nothing could be collected from him. The bank is called upon to fulfill its guaranty, and insists that it had no legal capacity to make such a guaranty, and that it is not therefore liable on it. From this statement it is plain that Mumford held the bond and mortgage, and arranged with the bank to convert it into money for the benefit of the bank, and to apply the money to be received to pay his debt to the bank, and that in pursuance of this arrangement communicated to the Trust Company, he assigned the bond and mortgage to the company, and the bank at the same time guarantied to the company the payment of the bond and mortgage, or of the first six installments on it, and that Mumford received the money from the Trust Company, and applied the proceeds to the payment of his debt to the bank. If Mumford had assigned the bond and mortgage to the bank, and the bank had assigned them to the company, and guarantied the payment, as it did, it is conceded that the bank would have been liable. The only difference is that the one transfer from Mumford to the bank that would have been necessary in that case was omitted, and Mumford, to simplify the transaction, assigned directly to the company. This was a mere matter of form in conveyancing, and neither the one form nor the other can be considered in any degree as an attempt to enlarge the franchises of the bank. The measure of a franchise is never determined by immaterial forms. The question always is what power or capacity has been given, not whether the power is exercised in a particular form. In substance, the bank had an interest in the bond and mort gage-the arrangement made between it and Mumford, that he should assign the bond and mortgage for their benefit, or assign them and apply the proceeds to pay his debt to them, gave them such an interest in this bond and mortgage that to some extent the bond and mortgage were the property of the bank. It was agreed to be theirs when it was agreed that the proceeds should be theirs; and when this agreement was carried out, and became an executed contract, it made the bond and mortgage as much to have been theirs by relation during the process of completing the arrangement, as if there had been an express contract, of a sufficient consideration to assign the bond and mortgage directly to the bank, that the bank might assign to the company.

It was contended that in some respects the complaint set forth not facts, but the evidence of facts only. If the facts stated are such that if they were found as stated, the plaintiff must recover by operation of law, then the plaintiff has set forth a sufficient cause of action. So when the plaintiff alleges the execution of the guaranty by the bank, under its seal, and the guaranty recites the consideration on which it was executed, and that is a lawful and sufficient con

sideration, that is prima facie enough. A statement of certain evidence from which the law draws a conclusion of fact is in effect a statement of that fact; but a statement of evidence from which the law would not draw a conclusion of fact, but which would be left to a jury to find one way or the other, although it be so clear that a jury ought to find only one way, may not be sufficient in pleading. So it might be that it would not in pleading be a sufficient allegation of unseaworthiness of a ship to allege that she set sail, and on the same day, without encountering any storm or casualty, foundered at sea, although a jury would be bound, on such evidence, to find that she was unseaworthy. In pleading it might be insufficient, because by possibility the ship still was seaworthy when she left her port. Yet, even in such a case, it may be doubtful whether the proper remedy is by demurrer, when the party has a more appropriate remedy by moving to make the pleading more definite and certain. The judgment appealed from should be affirmed, with costs.

SHIPMENT OF GOODS-CONSIGNMENTS, ETC.

In the Supreme Court, Special Term, (1854.) Before Judge Clerke, Beeche & Kuramdt vs. Stephani and others.

This was a motion to dissolve an injunction relative to importations of German goods, amounting to $70,000.

DECISION. P. A. Milberg, of Hamburg, Germany, consigned to the plaintiffs four different shipments of merchandise, with instructions to deliver the same to Jacob Rybach, one of the defendants, upon payment of the freight and expenses. Upon the arrival, in December last, of two of the consignments, by the ships Rastede and Donan, they delivered to Rybach the bills of lading for them, on receiving from him the amount which they demanded for the said charges. Soon after this, the plaintiff's received notice from Milberg, and from other defendants in this action, that the latter claimed to be entitled to the goods embraced in the several consignments, and cautioning them not to part with the possession of the property and of the bills of lading to Rybach, on the ground that he had fraudulently obtained possession of it from them, being merchants and manufacturers in Vienna; that he pretended to purchase the goods with the design of never paying for them, and of causing them to be conveyed secretly to the United States; and, to carry out such design, he caused the goods to be secretly removed from Vienna to Hamburg, and there shipped by Milberg, who was not then aware of the fraud, to New York, whither Rybach himself soon after took passage. On receiving this confirmation, and before Rybach (with the exception of two cases, each containing a piano forte,) obtained actual possession of the property out of the public store, where they then remained in the custody of the collector, the plaintiff's applied, on the 30th December last, to one of the justices of this Court for an injunction, which was granted, to restrain him and the other claimants from taking possession and disposing of the property, and for the appointment of a receiver, praying in their complaint that the defendants may be required to interplead and settle their conflicting claims; and that they, the plaintiff's, may be absolved from all liability in the premises. The plaintiffs allege, in their complaint, that they have no interest in the goods; that they do not collude with the defendants or any of them, and that this action is commenced solely for their own protection. They further allege, that after the commencement of this action, and after service of the injunction on Rybach, he entered into a stipulation, on which an order was duly entered, by which it was agreed that Mr. Charles Looseg, the Austrian Consul, should be appointed receiver of all the goods comprised in the four shipments, with liberty to make sales, and to retain the proceeds to await the further order of the Court; but that Rybach, in evasion of these proceedings, and in violation of the injunction, made a pretended sale to Stephani, since made a defendant by amendment, and fraudulently continued with him to have goods, which were imported in the Rastede, removed from the public store, and afterwards placed in the store No. 112 Liberty-street; after which they were delivered by Rybach to Coronna and Littenfelt, as commission merchants, for sale on his account.

On these facts the plaintiffs now apply for an extension of the injunction and receivership, so as to embrace the proceeds of the goods that might have been sold, and the documentary evidences of title to all of the goods-for a receivership against Stephani, and an attachment against Rybach for a violation of the injunction. The defendants, Ryback and Stephani, move severally for a dissolution of the injunction with costs against the plaintiffs, upon affidavits denying many of the facts alleged by the plaintiffs in their original and amended complaint, and in their affidavits. Instances are continually occurring, especially in a commercial community, where from peculiar and unforeseen circumstances, a person who owes a debt, or has incurred a liability, is unable to determine, without serious risk, to which of several adverse claimants it should be rendered; and, to prevent the probable or even possible injustice or vexation, arising from the prosecution of actions by any or all the claimants, this Court will compel them to test their claims by judicial investigation in an action between themselves; in other words, the Court will compel them to interplead, on the application of the person owing the duty or liability, and will relieve him from further responsibility. The plaintiff, however, must show that he does not collude with any of the claimants; that the claims are what, under the old distinctions, were denominated legal; that priority should subsist between him and the defendants; that he is in possession, actually or constructively; that he does not claim any interest in the property in dispute, and that he can in no other way be protected from an oppressive or vexatious litigation, in which he has no personal interest. It matters not in what capacity the plaintiff has incurred the debt or liabilitywhether as a stockholder or tenant, or an ordinary agent, or as a public officer, or as an accidental recipient of the property. He has a right to claim the equit able intervention of the Court, for his complete indemnification and relief.

I am of opinion that the plaintiffs are entitled to all the relief they ask, and that the applications made by Bybach and Stephani to dissolve the injunction, should be denied without costs.

LIBEL TO RECOVER FOR SALVAGE SERVICES.

In United States District Court, before Judge Ingersoll. miralty. Isaac C. Phillips et al. vs. the ship United States.

Decision in Ad

This libel is filed to recover a salvage compensation for services rendered to the ship United States, by the steamtugs Hercules and Underwriter. The ship, worth from $10,000 to $15,000, and having on board a cargo of about a thousand tons of railroad iron, worth about $45,000, while bound into the port of New York about two or three o'clock P. M., on the 11th of March, 1853, ran on the outer middle shoal about three miles from Sandy Hook. There was seventeen or eighteen feet of water on the shoal, and the ship drawing about nineteen, was carried over the shoal by force of the sea and the wind, which was blowing a gale from the northeast. Soon after she had a signal for a pilot, and was spoken by one; but the sea was so rough, that he could not then board her. He ther fore directed the captain of the ship to follow his boat and he would lead him into deep water. The direction was followed till the ship arrived near the point of the Hook, when the pilot was enabled to board her, and she then proceeded under his direction as far as the Southwest Spit. She could then proceed no farther up the harbor, as the wind was dead ahead. When the pilot went on board, the ship-which was an old one-from thumping over the outer middle, was leaking badly.

The necessary hands being at the pumps, and after her arrival at the Southwest Spit, the captain and pilot consulted for her safety, and thereupon the pilot ordered a signal set for the steamtug Hercules, which, having that day towed down a schooner from New York to lighten the Avalanta, which was ashore outside of the Hook, was about two miles from the ship in the Lower Bay, looking for business in her ordinary occupation of towing vessels up and down the harbor. The evidence was contradictory as to whether the signal was an ordinary

one for a tow, or a signal of distress. The Hercules came in obedience to the signal, and took hold of the ship between four and five P. M., and the captain of the ship told the captain of the Hercules that the ship was leaking badly, and that the water was gaining on them.

The Hercules not being able to tow her with as much dispatch as was desired, a signal was set from the ship for the Underwriter, which had also gone down in search of business. The Underwriter immediately obeyed the signal, and the two tugs brought the ship in safety up the harbor, although from the leak she settled one or two feet while coming up, and ran her upon a mud-bottom in the Atlantic Dock between nine and ten o'clock at night. This was on Friday, and by the following Wednesday she filled with water. The usual price paid to a steamtug for towing a vessel up from the Lower Bay varies from $25 to $100, according to the state of the weather and the difficulties of the case.

Held by the Court: That the weight of evidence is, that the signal set was not a signal of distress, but a signal for a tow. In obeying the signal, the tugs went to her aid, expecting and agreeing to engage in the business which the sig nal indicated. But although the tugs started for the ship with the view to render a towage service merely, yet if the ship, when the tugs came to her assistance, was, in point of fact, in a condition where loss or serious damage was reasonably to be apprehended from her leaky condition, in connection with the boisterous state of the weather-if she was encountering a threatened or impending peril, from which she was rescued by the tugs--then, although the signal set by the ship was only for a tow, and although when the tugs started for the ship in obedience to the signal, they understood that they were wanted only for towage service, they would be entitled to be compensated for a salvage. For where a ship or its lading is saved from impending peril by the service of any persons, upon whom there is no obligation to render the service, then such service is to be compensated as a salvage.

A mere towage service is confined to vessels which have received no damage which puts them in peril of loss. A mere towage compensation is payable in those cases only where the vessel receiving the service is in the same condition she would ordinarily be without having encountered any damage or accident. And if a towage engagement merely leads to the rescue of a ship from an imminent danger, it should be remunerated as salvage. (3 Hag., 428.)

That the Court does not find as a fact that the ship and cargo would have been lost or greatly damaged, if she had not been rescued by the tugs, but does find that there was danger of such loss, or great damage, and that the ship was rescued from that peril by the tugs, and the compensation which the libelants are entitled to have received for their services must be a salvage compensation. That there was but little, if any, more labor and peril incurred by the tugs than would have been incurred in such weather in performing a towage service; that they manifested promptitude in obeying the signal, but were not diverted from their proper and usual employment, but were engaged in it; that the libelants have experienced but trifling injury or loss by the service which they have rendered, no more than probably would have been sustained if the ship had not by her leaky condition been exposed to impending peril--and that under all the circumstances, the case demands only a moderate compensation. Decree, therefore, that the libelants recover the sum of $1,000, to be divided equally between the two tugs.

COMMERCIAL LAW OF PARTNERSHIP.

The Pittsburgh Commercial Journal publishes a case which was lately (1855) argued and decided in the District Court of Alleghany county, before Judges Hampton and Williams, involving some interesting questions relating to the rights and duties of partners. As the matter was amicably adjusted before the decision was announced, the names of the parties need not be given; but for the information of our readers, many of whom are interested in the questions, we

give a synopsis of the points decided, taken from the opinion filed by his Honor, Judge Hampton:

On the 29th of October, 1853, three persons entered into articles of partnership to carry on the "General Foundry Business" for the term of five years. One of the partners becoming dissatisfied, various proposals to purchase or sell were made without coming to any agreement. At length, on the 9th of June, one of the partners delivered to his co-partner a note, stating that "in order to get rid of any further difficulties or trouble with you, I will leave the concern and give you all that I have put in, or any interest that I have in it forthwith." On the 11th of June an answer was returned as follows: "I accept your proposition as you have pleased to make it in your note of June 9, 1855." The retiring partner, on receiving this answer, demanded indemnity against the outstanding debts and liabilities of the firm, amounting to several thousand dollars. The remaining partners refused to give such indemnity, but assumed the possession and control of the firm, and commenced to carry on the business in their

own names.

A bill in Chancery was then filed by the retiring partner, setting forth the foregoing facts, and praying the Court to decree a dissolution of the partnership, and an account to be taken, and asking for an injunction to prevent the remaining partners from using the property and carrying on the business for their own benefit, and for a suitable person to be appointed as a receiver to take charge of the property and assets of the partnership, and wind up the business, unless the complainant was indemnified against the debts and liabilities of the firm. The case came on to be heard upon a motion by the complainant for the appointment of a receiver, and was fully argued by counsel. For the complainant it was contended-

That although the articles stipulated for the continuance of the partnership for five years, yet it might at any time be dissolved by agreement of the parties, or by decree of the Court of Chancery for misconduct on the part of one or more of the parties.

That whether the offer by complainant and the acceptance of defendants was binding and operated as a dissolution or not, still the defendants' conduct was wrongful, and justified the appointment of a receiver, inasmuch as they refused to indemnify the retiring partner, and were applying the property to their own

use.

That in equity the retiring party was entitled to indemnity, although not mentioned in his offer, and his right to such indemnity could only be defeated by an express waiver.

That while the partnership continued, each partner was entitled to participate in the management, and upon dissolution, the first duty of all the partners was to wind up the business, and apply the property to discharge the liabilities of the firm; so that in either aspect the defendants had no right to assume control of the property and carry on the business for themselves without the consent of the retiring partner. And having done so, the Court should appoint a receiver. For the defendants it was contended-

That the complainant had voluntarily offered to quit the concern, and give up his interest without any demand of indemnity, and that offer being accepted, he was bound by it, and could not impose the new terms of indemnity.

That if the Court was of opinion there had been no dissolution, the defendants were still willing to go on under the articles.

That they acted under a supposed right in carrying on the business in their own names, and intended to pay the debts as fast as practicable.

That the appointment of a receiver would be highly injurious to them, and the interests of the firm, and no irremediable injury had been shown requiring such appointment.

An elaborate opinion of the Court was filed on Wednesday last by Hampton, President Judge, holding