Brown, 8 Wash. 351, 36 Pac. 275, holding lienor whose mechanic's lien accrued after foreclosure suit commenced, of which he had notice, bound by judgment therein. Cited also in Maloy v. Duden, 86 Fed. 404, 57 U. S. App. 164, holding judgment was estopped for defendant who was the real though not the nominal plaintiff in former suit; Bernard v. Merrill, 91 Me. 363, 40 Atl. 138, collecting cases, as example of estoppel upon persons not parties; Wallace v. Straus, 113 N. Y. 243, 21 N. E. 68, holding notice to defend suit against guarantor necessary to bind principal by judgment therein. See also note to 2 Am. St. Rep. 877, 878.

Distinguished in Litchfield v. Goodnow, 123 U. S. 551, 31 L. 201, 8 S. Ct. 211, restricting doctrine to persons claiming under or in privity with actual parties in prior litigation; Bidwell v. Toledo, etc., St. Ry., 72 Fed. 12, 13, holding non-resident corporation, not intending to become a party, not concluded by judgment, because It assumed the defense pursuant to contract. Distinguished as to facts in Elliott v. Hayden, 104 Mass. 182, holding payment of sheriff's counsel fees by parties procuring wrongful attachment in action against him therefor, competent evidence, but not conclusive against them; Smith v. Moore, 7 S. C. 218, 220, 24 Am. Rep. 485, 487, holding judgment against vendees for breach of implied warranty, no evidence of breach of similar warranty in action against their vendor.

3 Wall. 20-37, 18 L. 125, THE PLYMOUTH.

Admiralty jurisdiction over torts is dependent upon locality of tort, being limited to those the substance and consummation of which occurred on the sea, or navigable waters not beyond highwater mark; the maritime character of the instrument doing the Injury does not affect the jurisdiction, pp. 33-35.

Cited and principle applied in The Epsilon, 6 Ben. 381, F. C. 4,506, sustaining jurisdiction of petition to limit liability for injuries sustained on navigable waters; The Ottawa, Brown's Adm. 357, 359, F. C. 10,616, holding admiralty jurisdiction in case of tort, dependent entirely on locality of injury and not on its being done by a maritime thing; Simpson v. The Ceres, 22 Fed. Cas. 173, collecting cases, determining jurisdictional question in admiralty's favor, from fact of dry dock having been afloat when run into by vessel; In re Long Island, etc., Transportation Co., 5 Fed. 606, holding maritime character of tort upon which limitation of vessel's liability depends, determined by its location on Long Island Sound; Leonard v. Decker, 22 Fed. 742, 743, holding injury by bolts projecting from wharf, to vessels afloat alongside, was a maritime injury cognizable in admiralty; The City of Lincoln, 25 Fed. 837, holding Injury to recently discharged cargo maritime, where caused by water into which it was thrown by wharf breaking down; Etheridge

v. Philadelphia, 26 Fed. 43, collecting cases, sustaining admiralty jurisdiction of injury to schooner by drawbridge swinging against it; Milwaukee v. The Curtis, 37 Fed. 705, 706, 3 L. R. A. 712, applying the rule denying admiralty jurisdiction over injury by vessel to swingbridge; Boston v. Crowley, 38 Fed. 204, sustaining admiralty jurisdiction over injury to vessel by drawbridge; Bain v. Sandusky Transp. Co., 60 Fed. 913, collecting cases, holding wrongful arrest and imprisonment on shore by master's procurement, of seamen who had deserted, not a maritime tort; The Normannia, 62 Fed. 472, sustaining admiralty jurisdiction for damages occurring at sea, arising out of false representations on land with reference to contract of carriage; Hermann v. Port Blakely Mill Co., 69 Fed. 647, 649, 650, 651, sustaining admiralty jurisdiction of injury to work. man on vessel by lumber sent through a chute from the pier. See also note to 62 Am. Dec. 238.

Admiralty jurisdiction does not include action for injury to buildings and property on wharf by fire communicated from vessel lying in navigable water, pp. 36, 37.

Cited and followed in Ex parte Phenix Ins. Co., 118 U. S. 618, 621, 30 L. 278, 279, 7 S. Ct. 28, 29, denying Admiralty Court's jurisdiction to determine vessel-owner's liability for damage on shore caused by fire communicated from ship; Johnson v. Chicago, etc., Elevator Co., 119 U. S. 397, 30 L. 450, 7 S. Ct. 258, where building and contents damaged by vessel striking against it; The Mary Stewart, 5 Hughes, 313, 10 Fed. 138, holding injury caused by cotton-bale falling on person on shore, while being hoisted on vessel, not cognizable in admiralty; The Arkansas, 5 McCrary, 371, 372, 17 Fed. 388, holding damage resulting from collision of vessel with building caused by flood carrying vessel beyond river banks, not within admiralty jurisdiction; The Epsilon, 6 Ben. 381, F. C. 4,506, holding demand arising out of person's death, killed by vessel while standing on shore, not cognizable in admiralty; The Maud Webster, 8 Ben. 552, 554, 555, 556, F. C. 9,302, holding admiralty had no jurisdiction where property injured by vessel was affixed to the land; The Neil Cochran, Brown's Adm. 164, 165, F. C. 10,087, and The John C. Sweeney, 55 Fed. 542, 543, 544, briefly reviewing cases, denying admiralty jurisdiction of action for damages to bridge caused by colliding vessel; The Ottawa, Brown's Adm. 357, 358, 359, 360, F. C. 10,616, reviewing cases, and The C. Accame, 20 Fed. 643, holding action would not lie in admiralty for injury by vessel to wharf, projecting into navigable water; The Professor Morse, 23 Fed. 804, 807, holding injury by vessel to marine railway attached at one end to shore and resting on piles, not maritime; Goodrich Transp. Co. v. Gagnon, 36 Fed. 124, holding act limiting vessel's liability not applicable where injury was to property on land destroyed by fire communicated from vessel; Milwaukee v. The Curtis,

ANN

37 Fed. 705, 706, 707, 3 L. R. A. 712, briefly reviewing cases, denying admiralty jurisdiction over negligent injury by vessel to swingbridge; The H. S. Pickands, 42 Fed. 240, collecting cases, denying admiralty jurisdiction of injury to workman thrown upon wharf by falling of ladder connecting ship with wharf; Ramsdell Transp. Co. v. Compagnie Generale Transatlantique, 63 Fed. 848, collecting cases, denying admiralty jurisdiction of suit for damages to pier by ship striking it; The Mary Garrett, 63 Fed. 1011, 1013, reviewing cases, denying admiralty jurisdiction of injury to seaman on wharf by portion of cargo falling on him while being unladen; Price v. The Belle of the Coast, 66 Fed. 62, denying admiralty jurisdiction where seaman in stepping off vessel with load, as ordered by mate, fell into hole and was crushed; The Strabo, 90 Fed. 110, 111, 112, holding admiralty had jurisdiction where party fell from ladder to dock; Johnson v. Elevator Co., 105 Ill. 469, sustaining State court jurisdiction, denying that of admiralty, over injury by vessel to grain elevator and contents; John Spry Lumber Co. v. The C. H. Green, 76 Mich. 327, 328, 43 N. W. 578, reviewing cases, sustaining State court jurisdiction of suit for damages to millowner by vessel colliding with his storeboom.

Distinguished as to facts in In re Long Island, etc., Transportation Co., 5 Fed. 608, where damage caused by vessel catching on fire and burning in Long Island Sound; The Manhassett, 19 Fed. 435, where injury received from boat by passenger in the act of leaving her, while act of landing yet incomplete. Distinguished in In re Vessel, etc., Towing Co., 26 Fed. 172, holding statute limiting vessel's liability for tort, might be invoked through injury to prop erty on land.

Miscellaneous. Cited in State v. Judge, 39 La. Ann. 502, 4 Am. St. Rep. 277, 2 So. 39, collecting cases, sustaining State court'u jurisdiction of action in personam and attachment of ship, to enforce penalty for violation of State pilotage law.

3 Wall. 37-46, 18 L. 50, THE KIMBALL

Shipping. Shipowner's lien upon cargo for freight is favored by the courts so long as he retains possession, and is displaced only by express contract or inconsistent stipulations in charter-party, p. 42.

Shipping. Stipulations in charter-party that cargo be delivered in reach of ship's tackle and that balance of charter money be paid one-half in five and one-half in ten days after discharge, are not inconsistent with lien on cargo for freight, pp. 42, 43.

Distinguished in Wiles Laundering Co. v. Hahlo, 105 N. Y. 242, 59 Am. Rep. 501, 11 N. E. 503, holding laundryman's lien waived by stipulation for monthly payments.

Shipping. Inference of waiver of lien for freight is justified by long credit given for freight in absence of provision for delivery of cargo, p. 43.

Cited in The Bird of Paradise, 5 Wall. 558, 18 L. 665, holding lien for freight displaced by stipulation for payment by bill at three months from delivery of certificate of cargo's delivery.

Shipping.- Express stipulation in charter-party binding ship and cargo respectively for performance of conditions, repels inference of waiver of lien on cargo for freight, p. 44.

Cited in Six Hundred Tons of Iron Ore, 9 Fed. 597, holding express stipulation in charter-party for lien on cargo for freight, repels presumption of waiver thereof drawn from party's acts. Cited also in Freights of The Kate, 63 Fed. 713, collecting cases, as instance of enforcing maritime lien resting wholly on express contract.

Carriers.- Freight money paid in advance is to be refunded if goods are not carried unless fault be the shippers, p. 45.

Payments. Presumption prevailing in Massachusetts, that promissory note extinguishes debt, may be repelled by showing of contrary intention; drawing notes given for freight so as to mature near time of ship's expected arrival with understanding for renewal in case of delay, repels presumption, pp. 45, 46.

Cited and principle applied in Mason v. Douglas, 6 Ind. App. 561, 33 N. E. 1010, holding where circumstances give rise to presumption of payment by note, showing of contrary intention repels presumption; Dows v. Swett, 134 Mass. 142, 45 Am. Rep. 311, collecting cases, where note considered to have been taken in payment of debt. Cited, arguendo, in Anderson v. Gill, 79 Md. 318, 47 Am. St. Rep. 407, 29 Atl. 529, 25 L. R. A. 204, and n., referring incidentally to doctrine that giving of check is payment as prevailing in Massachusetts.

Payment Shipping.— In general, promissory note does not discharge original indebtedness, but merely extends payment to maturity, so that no presumption of discharge of shipowner's lien for freight, arises from his having received charterer's notes therefor, pp. 45, 46.

Cited and principle applied in The Bird of Paradise, 5 Wall. 561, 562, 18 L. 666, 667, holding charterer's acceptance at six months from final sailing, by which freight agreed to be paid, having been dishonored, constituted no payment; The Emily Souder, 17 Wall. 670, 21 L. 684, holding drafts for advancements to vessel in distress conditional payment only and no discharge of lien therefor on vessel; Embrey v. Jemison, 131 U. S. 347, 33 L. 176, 9 S. Ct. 779, denying recovery by original payee on notes given for gambling consideration, notes being merely evidence of indebtedness on illegal con.

tract; The Helen M. Pierce, 2 Hask. 209, F. C. 6,332, holding maritime lien for wages, not lost by taking master's time note for sum Cue; In re Perkins, 6 Biss. 191, F. C. 10,983, Farmers, etc., Bank v. Hoagland, 7 Fed. 161, and Hadden v. Dooley, 92 Fed. 281, 63 U. S. App. 186, holding renewal note but evidence of pre-existing debt, not a payment thereof; The Napoleon, 7 Biss. 395, F. C. 10,011, collecting cases, holding acceptance of former owner's note for sum due for towage service did not waive lien on vessel therefor; In re Hurst, 1 Flipp. 470, F. C. 6,925, holding composition under bankrupt act whereby debtor's notes received, did not discharge him until payment of the amount; The Illinois, 2 Flipp. 417, F. C. 7,005, collecting cases, The Sarah J. Weed, 2 Low. 556, F. C. 12,350, The Alabama, 22 Fed. 451, The John C. Fisher, 50 Fed. 704, 3 U. S. App. 109, and The L. B. X., 93 Fed. 239, holding taking of notes for the amount, no waiver of maritime lien on vessel; The Queen of St. John, 31 Fed. 28, holding taking note and mortgage for advances to vessel no waiver of maritime lien therefor; Akin v. Peters, 45 Ark. 318, holding draft and acceptance merely additional security, not discharge of original debt; Union, etc., Mining Co. v. Rocky Mountain Nat. Bank, 2 Colo. 574, First, etc., Bank v. Newton, 10 Colo. 171, 14 Pac. 432, collecting cases, Solomon v. Pioneer Co-operative Co., 21 Fla. 376, Herman v. Williams, 36 Fla. 151, 18 So. 356, collecting cases, Combination Steel, etc., Co. v. St. Paul Street Ry., 47 Minn. 208, 49 N. W. 744, Black v. Sippy, 15 Or. 576, 16 Pac. 419, and Pope v. Graham, 44 Tex. 199, holding promissory notes not payment of original debt. Cited also in Segrist v. Crabtree, 131 U. S. 290, 33 L. 126, 9 S. Ct. 689, holding question whether notes received in payment or as evidence of indebtedness, was for the jury; Embrey Day v. Thompson, 65 Ala. 273, where there was an express agreement to receive draft in payment.

Modified in The Nebraska, 69 Fed. 1013, 34 U. S. App. 119, collecting cases, holding acceptance of note and mortgage extending time for payment beyond period limited by law for enforcing lien, waived it.

3 Wall. 46-51, 18 L. 163, CASTRO v. UNITED STATES.

Appeal and error.- Writ of error, or allowance of appeal, the record and citation, must be returned to next term of court after writ issued or appeal allowed, or they will be void; citation subse quently issued is ineffectual, pp. 49, 50.

Cited and principle applied in United States v. Gomez, 3 Wall. 763, 18 L. 214, Mussina v. Cavazos, 6 Wall. 358, 18 L. 811, The Lucy, 8 Wall. 309, 19 L. 395, Grigsby v. Purcell, 99 U. S. 506, 25 L. 354, collecting cases, Caillot v. Deetken, 113 U. S. 216, 28 L. 983, 5 S. Ct. 432, Credit Co v. Arkansas Central Ry., 128 U. S. 259, 32 L. 449, 9 S. Ct. 107, collecting cases, and Hewitt v. Filbert, 116 U. S. 145, 29 L. 582, 6 S. Ct. 320, holding appeal or writ of error void unless