REPORTER.

unlawful and improper, and a breach of trust, for executors to authorize the master or ship's husband to act in such a matter for them, no presumption can arise that they have .aone so. In the case of Stedman v. Fiedler, 20 N. Y. 446, it was expressly so held by the New York court of appeals in respect to an administrator. The decision is clearly in accordance with the authorities above cited, and no distinction can be made between executors and administrators, no express power under the will being shown to confer any unusual power on these defendants. Libel dismissed, with costs as to the defendants Sturges, Mitchell, and Davis, executors.

RICHARDSON

v.

SHIP HAVRE.

(Circuit Oourt, 8. D. New Yrrrk.

September 28,1880.)

L APPEAy,...,...BILL OF EXCEPT10NS.-A 'bill of exceptions, to present for review, upon appeal to the,supreme court, the rulings of the. circuit court, must be based on exceptions taken to such rulings at the time . the rulings were made. .

a.

SAME-SAME--PRAcTICE.-Where no exceptions are taken during the trial, the only paper which the judge can sign upon appeal is a recshowing the proceedings which took place in court in the case at the trial prior to the decision of Jt by the court, embodying the requests to find on both sides, and also the findings mnde and the writ'ten opinion of the court, and the exceptions tiled, showing the dates of the several proceedings.

In Admiralty.

Shipman, Bm'low, Lrrrocque d: llfcFarland, for libellant. Blatchford, Seward, G-risltold et Da Costa, for claimant.
BLATCHFORD, C. J. In this case, a suit in admiralty in rem, there was a final decree by the district court in favor of

the libellant. The claim'1nt appealed to this court. The trial in this court took place in February, 1879. At the trial each party presented to the court requests to find certain faets and certain conclusions of law. In June, 1879, the court

BICIURDSON 't1,' slttP

invlUL

·749

filed . findings of fact and conclusions of law made by it: On the twenty-sec'ond of July a final decree was filed, signed by the judge, dismissing !the libel, with costs, and dated July 10,1879. The libellant neither took nor filed any exceptions until July 17, when he filed a paper containing exceptions to refusals of the court to find certain matters of fact which the libellant requested it to find, the exceptions being made on the ground that the faots which the libellant so requested the court to find were clearly proved by the evidence, and not contradicted by any material evidence in the case, and that therefore the refqsal of the court to find the same was in each case an error in law, as a finding against evidence. The same paper contains an exception to a finding of fact which the court made as unsupported by any evidence. The same paper contains exceptions to certain conclusionR of law fonnd by the court. With a view to using it on an appeal to the supreme court, the libellant now presents to the court, to be signed and filed, a paper calling itself a bill of exceptions, which represents that said, exceptions were filed before the final decree was made. The act of February 16, 1875, provides that the circuit court, "on deciding causes of admiralty andmantime juri'sdiction on the instance side of the court, shall find fa.cts and the conclusions of law upon which it J,'eIiders its judgof ments or decree and shail statE) law separately," and that "the revle'w olthe judgments and decrees entered upon Ruch findings by the supreme court upon appeal shall be limited to a determination of the questions of law arising upon the record, and to such rulings of the circuit· court, excepted to at the time, as may be presented by a bill of exceptions prepared as in actions at law." Under this statute the supreme court can, on an appeal, determine the questions of law arising upon the record. It can detel'mine the questions of law arising on the facts found by the circuit court. But a bill of exceptions to present for review rulings of the circuit court must be based on exceptions taken to the rulings at the time the rulings are made. No other exceptions can be embraced in a bill of exceptions, If no excep-

750

FEDERAL REPORTER.

tions to rulings are taken before the decree is entered, that is, during the trial, there can be no bill of exceptions. Therefore, in the present case, there can be no bill of exceptions, and I must decline to sign one. The only paper I can sign is one amounting to a record, showing the proceedings which took place in court in the case at the trial, prior to the decision of it by the court, embodying the requests to find on both sides, and also the findings made and the written opinion of the cou,rt, and the exceptions filed showing the dates of the several proceedings. It must be left to the supreme court to say what, upon such record, will be the extent of its review in this case. I have changed the proposed bill of exceptions into such a record and have signed it.

ROLLINS tI. STEAMER

E. O.

STANARD

and others.

(District Oourt, E. D. MiIIowri, November 25, 1880.)
1. MARINERS-WAGES-RATBs.-Where mariners are not engaged at ·

fixed rate, the courts will allow them the highest rates existing at the time at the port of departure.

In Admiralty. Drnmrrwnd et Smith, for petitioner. R. H. Kern, for respondents. TREAT, D. J. The demand of libellant, as mariner, is for the sum of $39, and respondent tendered $30.30. It seems that for a previous voyage it was agreed that libellant should receive five dollars more a month than roustabouts, and that he consequently was paid at the rate of $35 per month. On the following voyage, which is that in question, roustabouts received per agreement $40 per month; and, therefore, libellant demands at the rate of $45 per month, and shows, by satisfactory evidence, that the difference for classes of service mentioned is as charged. Mariners are wards of the court, and as such are to be pro-