a naked power, the survivor was incompetent to execute it. If the premises are well founded the conclusion is undeniable. Peter v. Beverly, 10 Pet. 564; 2 Story, Eq. § 1062, and cases. We are satisfied, however, that this is a mistaken view of the authority conferred on the 354*] trustees. They were invested *with the whole of the legal estate, and were to hold the same in trust to "manage, invest, and reinvest the same according to their best discretion," and pay over the income to the three children of the testatrix during their lives; and, on their decease, the said Marsh and Guild, or their successors, as trustees, shall select and appoint the three persons, etc., and thereupon the said trust fund shall be disposed of and paid over in accordance with the determination of the said persons, as certified by them in writing. And then direction is given in the will, to the trustees, to sell and convey any and all the real estate which may be in their hands, at their discretion, for the benefit of the charities. Now, it is quite clear, from this reference to the will, that the trust conferred upon Marsh and Guild could not have been intended as a personal trust looking to the fitness of the donees of the power, as it is conferred upon them and their successors; and, as the execution of the trust for charitable uses was postponed by the terms of the will until after the decease of the three children of the testatrix, it was natural and reasonable to have supposed that it would not take place in the lifetime of the trustees named, but would descend to their suc cessors. But, what is more decisive of the question, is that, inasmuch as the trustees are invested with the legal estate, in order to enable them to discharge the various trusts declared, it is well settled that the power conferred is a power coupled with an interest, which survives, on the death of one of them, and may be executed by the survivor. (See the authorities above referred to.) It is not necessary that the trustees should have a personal interest in the trust; it is the possession of the legal estate, as a right virtute officii in the subject over which the power is to be exercised, that makes an interest, which, when coupled with the power, the latter survives. A trust, therefore, will survive when in no way beneficial to the trustee. We have said the trustees were invested with the legal estate for the purpose of enabling them to perform the various trusts devolved, such as managing the estate; investing and 355*] *re-investing the funds belonging to it; paying over the income to the children during their lives; converting the real estate into per sonal, and, among others, the selection and appointment of the committee of gentlemen who were to designate the donees of the charity. This was one of the incidental trusts of duties devolved upon them by the testatrix, as trustees of the estate, upon whom she had conferred such large powers over it, and which, on the death of Guild, survived with the other trusts to the co-trustee. No well-grounded distinction can be made between these trusts. If the power survives as to one of them it survives as to all, as it is apparent on the face of the will that the trustees were to act in the same capacity in the execution of all of them. As it respects this devise to charitable institutions there can be no doubt upon the law of Massachusetts, as habitually administered in her courts, but that the objects of the bounty are made sufficiently certain by the mode pointed out in the will; and as the question is to be determined by the local law of the state there is an end of the objection. Decree below affirmed. CHARLES FITZ, Libellant and Appt., v. THE GALIOT AMELIE. (See S. C. "The Amelie," 6 Wall. 18-30.) Right of master to sell ship—good faith and necessity must concur-surveys of disabled ship-liens transferred to proceeds-bill of sale, when unnecessary-law, requiring register in bill of sale. The master has the right to sell his ship in case of actual necessity, without the express authority of the owner. In order to justify the sale, good faith in making it and the necessity for it must both concur; and the purchaser, to protect his title, must be able to show their concurrence. This necessity is a question of fact, to be determined in each case by the circumstances in which the master is placed, and the perils to which the property is exposed." Where a ship became disabled during a violent storm, and was taken into harbor and surveys of the condition of the vessel were made by captains of vessels, the master was bound to follow their advice to sell his vessel and reship his cargo. The fact that the vessel was repaired by the purchaser and scut from Port au Prince to Boston, does not disprove the necessity of the sale. When a ship is lawfully sold, the purchaser takes an absolute title, devested of all liens, and the liens are transferred to the proceeds of the ship, which, in the sense of the admiralty law, becomes the substitute for the ship. A bill of sale is not necessary to transfer the title to the vessel. The law of the United States, which requires the register to be inserted in the bill of sale on every transfer of a vessel, applies only to the character and privileges of the vessel as an American ship. [No. 50.] Argued Jan. 7, 1868. Decided Jan 27, 1868. A States for the District of Massachusetts. PPEAL from the Circuit Court of the United The libellant was the owner of certain goods which were shipped on board this vessel, then called the Plata, at Surinam, to be delivered to him in Boston. The vessel sustained damage, put into Port au Prince, was surveyed and partly repaired at a cost of about $1,000, then re-surveyed and ordered to be sold. She was purchased by the present claimant for $407, who repaired her at a cost of $1,695 in gold, and sent her to Boston On her arrival in with a cargo of logwood. Boston, the vessel was libeled in the United States district court by the present appellant, who claims a lien and damages for the non-de livery of the cargo. The vessel was sold by order of court. The district court dismissed the libel, and the circut court, on appeal, affirmed this decree. The libellant appealed to this court. The case further appears in the opinion. NOTE. Power of master to sell vessel—see note to Post v. Jones, 15 L. ed. U. S. 618. Messrs. F. C. Loring and B. R. Curtis, for | value-went to Boston, where only some slight the appellant: repairs, costing in all $143, were made, and thence to Liverpool. I. The burden is on the purchaser, throughout, to maintain his title. The Sarah Ann, 13 Pet. 401; Freeman v. E. I. Co. 5 B. & Ald. 617. What is such a necessity as will justify a master in making a sale is, perhaps, incapable of definition; but it seems to be well settled in what cases it does not exist. 1. If the vessel is not in immediate danger, and communication can be had with the owners before she will probably be lost, there is no necessity to sell. The Sarah Ann (supra); Marvin, Wreck and Salvage, §§ 14 and 15; 1 Pars. Merc. Law, 62; Hall v. Franklin Ins. Co. 9 Pick. 478; The Bonita, 1 Lush. Adm. 253. It is not even suggested by the answer, nor is there any proof that the vessel was so situated as to be in immediate danger from any cause. If the master can, by bottomry, sale of cargo or otherwise, procure funds to repair, the question of repairs is one of expediency, not of necessity, and he has no power to sell. It has been much disputed whether the mere want of funds can of itself be a sufficient necessity to justify a sale by a master. 1 Pars. Mer. Law, 63. But it is settled conclusively that if a vessel can be repaired and the master has or can procure funds, no legal necessity exists, and he has no authority to sell, however great the damage may be. The Fanny and Elmira, Edw. Adm. 117; The Segredo, 1 Spinks, Ec. and Adm. 48; The Catherine, 1 Eng. L. & E. 682; Post v. Jones, 19 How. 158, 15 L. ed. 621. The cargo cost over $8,000 in Surinam. The highest estimate of repairs was $4,500; the actual cost of all the repairs made was only $2,695. The master sold cargo to the amount of $3,800, not one half of its value, and had the residue of the cargo and the vessel on which, by sale or otherwise, to raise $700, the whole sum required to make repairs if they should cost $4,500. That the vessel was capable of being repaired is shown, by the fact that she was able to take a cargo to Boston and afterwards to England, and was found to be stanch, strong and seaworthy. The master had funds to pay for repairs. If there is anything settled by the law, it is that under such circumstances he is under no legal necessity and has no power to sell: a fortiori when the vessel was in safety and could remain so until the owner was advised. 3. If the vessel cannot be repaired at the port of disaster, or only at a cost which would exceed her value and can be temporarily repaired, so as to be carried to a port where repairs can be made, the question whether to sell or not is one of expediency and not of necessity, and the master has no power to sell. Hall v. Franklin Ins. Co. (supra); Bryant v. Com. Ins. Co. 13 Pick. 543; Wilson v. Miller, 2 Stark, 1; Am. Ins. Co. v. Center, 4 Wend. 52; Freeman v. E. I. Co. 5 B. & Ald. 617. In this case the vessel was repaired at the port of disaster, at much less cost than her 4. If the master does not act in perfect good faith, the sale is void. This is a question of fact, and the burden is on the purchaser to prove that he did. The Sarah Ann (supra). There is no testimony bearing directly on this subject, but from his conduct fraud is to be inferred. It does not appear that he had no funds of his owners, or could not procure them on their credit, or raise money on bottomry, before he proceeded to sell cargo. The master never advised the owners of the cargo of its sale nor, so far as appears, the owners of the vessel. It is not necessary to impute bad faith to the purchaser, the present claimant, yet it must not be overlooked that he had means of knowing that the master was not acting rightly. 5. It seems to be well understood that it is not sufficient to show that the master acted in good faith, and for the interest of all concerned, and that a sale was beneficial and expedient, Besides that, a legal necessity must appear. The Tilton, 5 Mason, 476; The Bonita (supra); Post v. Jones, 19 How. 150, 15 L. ed. 618. II. If the circumstances had been such as to justify a sale and pass the title to the vendee. he took the vessel subject to all existing liens. The settled rule that the master cannot sell vessel or cargo, if they are in safety and he can communicate with the owners, shows conclusively that he is their agent and nothing more. Freeman v. E. I. Co. (supra); Bryant v. Com. Ins. Co. (supra); Pope v. Nickerson, 3 Story, 465. The master being the agent of the owner cannot do more than the owner could if he were present. Otherwise, the absurd conclusion follows, that an agent can exercise a power which his principal does not possess. If the owner sells his vessel in a port of disaster or in a home port, because he does not consider it expedient to make repairs, it would not be asserted that thereby he devested all liens, and conveyed a perfect title to the vendee. If he, the principal, could not do this, it necessarily follows that the master, his agent, cannot. The Rebecca, Ware, 188, 212; The Eliza Jane, 1 Sprague, 152; The Europa, 8 Law Times, 368; The Catherine (supra); The Nymph, Swab. 87. These authorities settle the point that a maritime lien is not displaced by the sale to a bona fide purchaser without notice, whether made by the owner or master as his agent. The Bonita (supra). III. The claimant never acquired a valid legal title to this vessel and has, therefore, no standing in court. He alleges in his answer, and it is admitted, that the vessel was struck off to him at auction, and that he afterwards took possession, but it is nowhere alleged or proved that the master executed the bill of sale in his own name, or that of the owner. If, by the general maritime law, a bill of sale is necessary to transfer the title, then the claimant has none. It is for him to sustain his claim and title. The Sisters, 5 C. Rob. 159, per Sir W. Scott; 4 C. Rob. 398; The Welvaart, 1 C. Rob. 122; The Segredo, 1 Spinks, 46; Atkinson v. Maling, 2 Term, 466; Ex parte Halket, 19 Ves. 495, per Lord Eldon; Jac. Sea Laws, p. 21; 3 Kent, Com. 186; Weston v. Penniman, 1 Mason, 306; Ohl v. Eagle Ins. Co. 4 Mason, 172; Stat. U. S. 1789, chap. 11, § 11. Mr. C. W. Loring, for appellee: I. There is no question that where the necessity arises, the master has a right to sell. 1 Pars. Mar. L. 59; N. E. Ins. Co. v. Sarah Ann, 13 Pet. 387; Somes v. Sugrue, 4 C. & P. 276; Gordon v. Mass. F & M. Ins. Co. 2 Pick. 264. 1. That this necessity has always been held to exist, when a vessel is injured by perils of the sea to such an extent that the cost of repairs would be more than her value when repaired and arrived at her port of destination; and, 2. That if, in the opinion of those best competent to judge, the vessel so injured is not worth repairing, and the master, acting in good faith and after careful investigation and conference, upon that opinion sells his vessel, he is justified in so doing, though it afterwards turns out that the opinion was incorrect, and the vessel could have been repaired at less cost than her value when repaired. See also The Glasgow, 1 Swab. 150; The Australia, 1 Swab. 484; The Margaret Mitchell, 1 Swab. 382; 1 Pars. Mar. Law. 59, § 3. New Eng. Ins. Co. v. Sarah Ann (supra); Somes v. Sugrue (supra); Gordon v. Mass. F. & M. Ins. Co. (supra). In all these cases the vessels were in port when sold; they were sold by the masters with out consulting the owners, and they were afterwards repaired and all but one came to England, where they belonged. Yet the sales were all confirmed by reason of necessity. It is submitted that this is one of those cases where the necessity on the master was so great that he could not have done otherwise than he did; that this is clearly one of those cases where the circumstances justify the master, though he were mistaken. See The Bonita, 1 Lush. 263; The Glasgow, Swab. 147. In Gordon v. Ins. Co. (supra), it is said the only alternative left for master is to follow advice of the surveyors. II. The sale is for all concerned and discharges all liens. Eng. Ins. Co. v. The Sarah Ann (supra); Patapsco Ins. Co. v. Southgate, 5 Pet. 620, 621; The Tilton, 5 Mason, 475; Gordon v. Mass. F. & M. Ins. Co. (supra); Hunter v. Parker, 7 M. & W. 342; Milles v. Fletcher, 1 Doug. 235; Robertson v. Clarke, 1 Bing. 445. Mr. Justice Davis delivered the opinion of the court: The Amelie, on her voyage from Surinam to Boston, encountered perils of the sea, and was obliged to seek the harbor of Port au Prince, Hayti, and was sold there at public auction, by the master, and purchased by Riviere, the claimant. The owner of the cargo, because of its non-delivery, filed a libel and insists that the sale of the vessel was not justifiable and passed no title to Reviere, the claimant; and even if the sale was proper under the circumstances, that Reviere took the title subject to all existing liens. The principle of maritime law which governs this controversy is too well settled for dispute. Although the power of the master to sell his ship in any case, without the express authority of the owner, was formerly denied, yet it is now the received doctrine of the courts in this country as well as in England, that the master has the right to sell in case of actual necessity. We are not called upon to discuss the reasons for the rule, nor to cite authorities in its support, because it has repeatedly received the sanction of this court. Patapsco Ins. Co. v. Southgate, 5 Pet. 620; N. E. Ins. Co. v. The Sarah Ann, 13 Pet. 400; Post v. Jones, 19 How. 157, 15 L. ed. 621. From the very nature of the case (the court say), there must be this implied authority of the master to sell. The injury to the vessel may be so great and the necessity so urgent as to justify a sale and under such circumstances, the master becomes the agent of all concerned, and is required to act for their benefit. [*27 The sale of a ship becomes a necessity within the meaning of the commercial law, when nothing better can be done for the owner, or those concerned in the adventure. If the master, on his part, has an honest purpose to serve those who are interested in ship and cargo, and can clearly prove that the condition of his vessel required him to sell, then he is justified. As the power is liable to abuse, it must be exercised in the most perfect good faith, and it is the duty of courts and juries to watch with great care the conduct of the master. In order to justify the sale, good faith in making it and the necessity for it must both concur, and the purchaser, to protect his title, must be able to show their concurrence. The question is not whether it is expedient to break up a voyage and sell the ship, but whether there was a legal necessity to do it. If this can be shown, the master is justified; otherwise not. And this necessity is a question of fact, to be determined in each case by the circumstances in which the master is placed, and the perils to which the property is exposed. If the master can within a reasonable time consult the owners, he is required to do it, because they should have an opportunity to decide whether in their judgment a sale is neces 3 Kent, Com. 173; Marv. Wreck, § 14; N. sary. And he should never sell, when in port with a disabled ship, without first calling to his aid disinterested persons of skill and experience, who are competent to advise, after a full survey of the vessel and her injuries, whether she had better be repaired or sold. And although his authority to sell does not depend on their recommendation, yet, if they advise a sale, and he acts on their advice, he is in a condition to furnish the court or jury reviewing the proceedings, strong evidence in justification of his conduct. master a moral necessity to sell his vessel and reship his cargo. *But it is said, the fact that the vessel [*29 was repaired by the purchaser and sent to Boston, disproves this necessity. Not so. It may tend to prove the surveyors were mistaken, but does not affect the question of the duty of the master to follow their advice, when given in such strong terms and with no evidence before him that it was erroneous. But in fact, the surveyors did not err in their conclusion that The facts of this case bring it within these the vessel was not worth the cost of repairs, as well-settled principles of maritime law, and the amount in the registry of the court for clearly show that the master was justified in which the vessel was sold in Boston, will fail terminating his voyage and selling the ship. to reimburse the claimant the money expended When the voyage began, the ship was sea- by him, in purchasing and repairing her. worthy and well provided, but after she had It is insisted, even if the circumstances were been at sea a short time she became disabled such as to justify the sale and pass a valid title during a violent storm and with great diffi- to the vendee, he, nevertheless, took the title 28*] culty was taken into the harbor of Port subject to all existing liens. If this position au Prince. The master at once entered his pro- were sound, it would materially affect the intest before the Dutch Consul-General (the ship terests of commerce; for, as exigencies are conbeing owned in Amsterdam), who caused three stantly arising, requiring the master to tersurveys to be made of the condition of the ves- minate the voyage as hopeless, and sell the sel. No action was taken on the first survey, property in his charge for the highest price he but the result of the second was to incur an ex- can get, would any man of common prudence pense of one thousand Spanish dollars in par- buy a ship sold under such circumstances, if he tial repairs, decided by it to be practicable, and took the title encumbered with secret liens, recommended in order that the ship should be about which, in the great majority of cases, he put in a proper condition to proceed on her could not have the opportunity of learning anyvoyage to Boston. In making these partial re- thing? The ground on which the right to sell pairs, one of the sides of the vessel was uncov- rests is, that in case of disaster, the master, ered, disclosing additional damages, of a seri- from necessity, becomes the agent of all parties ous character, not previously ascertainable, in interest, and is bound to do the best for them which caused the consul-general to order a that he can, in the condition in which he is third survey. This third and final survey was placed, and, therefore, has the power to dispose thorough and complete. The men who made it of the property for their benefit. When nothing were captains of vessels, temporarily detained better can be done for the interest of those conin port, and the agents of American and En- cerned in the property than to sell, it is a case glish underwriters. No persons could be more of necessity, and as the master acts for all, and competent to advise, or from the nature of their is the agent of all, he sells as well for the lien employment, better acquainted with the struc- holder as the owner. The very object of the ture of vessels, and the cost of repairing them. sale, according to the uniform current of the The report is full and explicit. After stating decisions, is to save something for the benethe injuries to the vessel, which they were fit of all concerned; and if this is so, the proable to find; their belief that additional dam-ceeds of the ship, necessarily, by operation of ages would be found when the vessel was fur- law, stand in place of the ship. If the ship ther uncovered, and absence of docks, competent can only be sold in case of necessity, where the workmen and requisite timber for repairs; and good faith of the master is unquestioned, and their opinion that the cost of the repairs if it be the purpose of the sale to save [*30 would exceed the value of the vessel, they advise something for the parties in interest, does not that the voyage be broken up, the vessel sold sound policy require a clean title to be given and the cargo reshipped to Boston. After this the purchaser in order that the property may advice, the master, who was bound to look to bring its full value? If the sale is impeached, the interest of all parties concerned in the ad- the law imposes on the purchaser the burden of venture, had no alternative but to sell. In the showing the necessity for it, and this he is in face of it, had he proceeded to repair his ves- a position to do, because the facts which consel, he would have been culpable. Being in a stitute the legal necessity are within his reach; distant port, with a disabled vessel, seeking a but he cannot know, or be expected to know, in solution of the difficulties surrounding him; at the exercise of reasonable diligence, the nature a great distance from his owners; with no di- and extent of the liens that have attached to rect means of communicating with them; and the vessel. Without pursuing the subject furhaving good reason to believe the copper of his ther, we are clearly of the opinion, when the vessel was displaced, and that worms would ship is lawfully sold, the purchaser takes an work her destruction, what course so proper to absolute title devested of all liens, and that the pursue as to obtain the advice "of that body liens are transferred to the proceeds of the of men who, by the usage of trade, have been ship, which in the sense of the admiralty law, immemorially resorted to on such occasions ?" becomes the substitute for the ship. Gordon v. Mass. Ins. Co. 2 Pick. 264. No prudent man, under the circumstances, would have failed to follow their advice, and the state of things, as proved in this case, imposed on the The title of Reviere, the claimant, was questioned at the bar, because he did not prove the master executed to him a bill of sale of the vessel. We do not clearly see how this question 2 Tidd, Pr. 1197, 1198; 1 Arch. Pr. part. 1, chap. 5, § 3, p. 356, of Lond. ed. 1840. To such an objection it is no answer to say that the writ of error names the party entitled to bring it, and the parties against whom it may be brought. That does not remove the objection on the ground of variance. is presented in the record, for there is no proof, | describe the parties or the action as the same either way, on the subject, but if it is, it is stood in that court. easily answered. A bill of sale was not necessary to transfer the title to the vessel. After it was sold and delivered, the property was changed and no written instrument was needed to give effect to the title. The rule of common law on this subject has not been altered by statute. The law of the United States, which requires the register to be inserted in the bill of sale on every transfer of a vessel, applies only to the character and privileges of the vessel as an American ship. It has no application to this vessel and this case. Wendover v. Hogeboom, 7 Johns. 308; Sharp v. Ins. Co. 14 Johns. 201; Weston v. Penniman, 1 Mas. 306. The decree of the Circuit Court is affirmed. SIMON MUSSINA, Plff. in Err., บ. MARIA JOSEFA CAVAZOS et al. (See S. C. 6 Wall. 355-363.) Original writ of error should be returned-transcript should accompany it effect of loss of the writ-when sufficient in form. Failure to return the original writ of error with the transcript of the record is not ground for dismissal, where the original was proved to have destroyed by fire. The transcript which the clerk sends here is the return to the writ, and should be accompanied by it. Rights acquired under a valid writ or process while it was in force, cannot be defeated by the loss or destruction of the writ, if its existence and the acts done under it can be substantiated by other testimony. Where the parties are correctly described in the Argued Dec. 24, 1867. Decided Jan. 27, 1868. On motion to dismiss. The case is sufficiently stated in the opinion. Messrs. Wm. G. Hale and Conway inson, for defendant in error: Though the judgment was on the 24th of February, 1854, the writ of error was not issued until the 2d of February, 1859; and then it was not issued by the clerk under the seal of the court, as prescribed by the act of Congress of May 8, 1792, § 9; and it recites judgment of a plea in the district court, "in which Simon Mussina is plaintiff in error, and Maria Josefa Cavazos and Estefana Goseascochea de Cortina are defendants in error," and it seeks justice to the parties aforesaid, "if judgment be therein given;" whereas the judgment in the district court is of a plea between Maria Josefa Cavazos and Estefana Goseascochea de Cortina, plaintiffs, and Simon Mussina, defendant. Porter v. Swetman, Style, 407; Williams v. Jenkins, 1 Sid. 104; Thompson v. Crocker, 1 Salk. 49. By 12 Geo. I., where the verdict was against two out of eleven defendants, the writ of error might well be brought by those two, but it was objected that the writ "must be described as it really was." The court said, "so it should." Cass v. Title, 1 Str. 683. And so it is in the books of forms. See Tidd, Pract. Forms, p. 497, et seq. of Lond. ed. 1828; Arch. App. 180, 216, 225; Chit. Forms, Lond. ed. 1840, p. 110. Accordingly, where a writ of error did not set out the names of all the parties to the judg ment, this court held it vicious and defective and dismissed the cause. Smyth v. Strader, 12 How. 327. It was held in 7 Will. 3, that a writ of error is not amendable when it goes in reversal of a judgment. Walker v. Stockoe, 1 Carth. 367; 1 Ld Raym. 71. The writ of error was regarded as "the commission to the court," and it was said, "the court cannot amend their own commission." Thompson v. Crocker, 1 Salk. 49. A different view was taken after the statute of 5 Geo. I. chap. 13. Cass v. Title, 1 Str. 683; Gardner v. Merrot, 2 Ld. Raym. 1587; 2 Str. 902; 1 Barnard, 462; 2 Arch. Pr. 1134, book 1, part 1, chap. 30, § 2, p. 1134, of Lond. ed. 1840. But that statute does not govern this court. This court holds that where there is a defect in an appeal or writ of error, the objection may be taken at any time before judgment, on the Rob-ground that the case is not legally before it, and that the court has not jurisdiction to try it. Wilson v. Life Ins. Co. 12 Pet. 141. The argument that the objection is a mere technicality and may be regarded rather as a matter of form than of substance, was answered thus: "This court does not feel itself authorized to treat the directions of an act of Congress as it might treat a technical difficulty growing out of the ancient rules of the common law. The power to hear and determine a case like this is conferred upon the court by acts of Congress, and the same authority which gives the jurisdiction, has pointed out the manner in which the case shall be brought before us; and we have no power to dispense with any of these provisions, nor to change nor modify them. And if the mode prescribed for removing cases by writ of error or appeal be too strict and technical, and likely to produce inconvenience and injustice, it is for Congress to provide a remedy by altering the existing laws; not for the court." The object of this motion is dismission of the case. Here, in the language of this court, "the paper purporting to be a writ of error," being "without seal, was void." Overton v. Cheek, 22 How. 46, 16 L. ed. 285. This may render it unnecessary to consider the other ground: that the writ does not agree with the record of the judgment of the plea or action in the district court, does not correctly 810 United States v. Curry, 6 How. 113; United States v. Yates, 6 How. 608; Carroll v. Dorsey, 20 How. 207, 15 L. ed. 804. 73 U.S. |