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the shipowners, and for other of said acts of negligence, if proved, the ship would be primarily liable, and that the presence of the last-named company as a party to the suit was necessary to the due administration of justice, in order to avoid a multiplicity of suits; to secure a complete hearing of the subject-matter, through the presence of all the parties interested; to obtain an adjudication which should do justice to each, and be binding upon all; to avoid conflicting decisions to which separate suits would be liable through the different evidence likely to be produced in them when the parties were different, and thus to avoid any possible failure of justice through such causes, and any discredit to the administration thereof, and because the case, though not within the letter, was deemed to be within the spirit of the fifty-ninth rule of the supreme court in admiralty, and because the order of this court to bring in the said company as a defendant at once, instead of requiring the owners of the Centurion to wait until after a judgment against them before filing an independent libel against the said company In case negligent stowage was established, was, in the absence of any express rule on the subject by the supreme court, deemed to be within the limits of the authority of this court, as conferred by section 918 of the Revised Statutes, whereby this court is authorized to regulate its own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings,' and also as conferred by the forty-sixth rule of the supreme court in admiralty, authorizing the district court, in cases 'not provided for by the previous rules,' to regulate its practice 'in such manner as it shall deem most expedient for the due administration of justice in suits in admiralty.' Of these considerations a fuller statement has been given by this court in the cases of The Hudson, 15 Fed. 162, and The Alert, 40 Fed. 836, to which reference is hereby respectfully made.

"A further reason for the said order and citation was that since the promulgation of the said fifty-ninth rule the constant resort to it in innumerable instances has been found, in practice, most useful in preventing abuses, and in general extremely satisfactory; and the occasional application of the rule to other cases of negligence or torts, closely analogous to those expressly covered by the fifty-ninth rule, has proved equally conducive to the most speedy and satisfactory distribution of justice.

"The motion to set aside the citation was denied for the above reasons, and because, in the present instance, no inconvenience to the said New York & Porto Rico Company was shown, or even averred, to be likely to arise, such as might lead the court, in its discretion, to withhold the relief asked for by the defendant shipowners.

"I further certify that the following additional pleadings have been filed in said cause, viz. the claimants' answer to the libel. and the libelants' answer to the petition, copies of which are hereto annexed, and that. on the argument of the motion to set aside the additional process, the substance of said claimants' answer was stated to the court, as the answer to be filed; and that the New York & Porto Rico Steamship Company has not answered, having been given by me until twenty days after the decision on this application for a writ of prohibition, in which to answer."

The answer of claimants thus referred to denied that the loss was ascribable to any act or omission for which the vessel or her owners were liable, but averred that it should be ascribed to perils of the sea, and, in the alternative, "that if there was any neglect or default on the part of those engaged in or about the stowage, care, or delivery of the cargo, as to which they had no knowledge, such neglect or default was on the part of the said charterers, their agents or servants, for which the claimants and the said steamship should not be held responsible." Claimants also set up in bar of the suit a decree in favor of libelants under a previous libel. The Centurion, 57 Fed. 412. That was a case arising on a diuerent consignment of cargo stored in the same hold, on the same voyage; and the charterers, who were brought in as in this case, were held liable to pay the decree.

Geo. A. Black, for petitioner. J. Parker Kirlin, for respondent.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

In his return to the rule, the learned district judge, in elucidation of the grounds on which his order rested, refers to The Hudson, 15 Fed. 162, and The Alert, 40 Fed. 836. In The Hudson it was held that where several vessels are alleged to be in fault in causing a collision, by which the property of a third person is injured, in a libel by the latter to recover his damages, all the vessels should be proceeded against as defendants, to avoid multiplicity of suits, and to enable the damages to be justly apportioned among those liable according to the law in admiralty, and that if, in such suit, the libelant proceeds against one vessel only, it is competent for the district court to award its further process in the cause, upon the petition of the vessel sued, for the arrest of the other vessels to answer for their share of the damage. The question of the right to pursue this course was discussed at large by the learned judge, and the conclusion reached that it was competent for the district court, in cases not provided for by the rules in admiralty of this court, to

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regulate its own practice, and to allow remedies according to the analogies of admiralty procedure, as new exigencies arose, which the court might deem necessary for the due administration of justice, and that it was essential and expedient in collision cases, in admiralty, that the liability of all persons or vessels involved should be determined in a single action, rather than in successive, independent suits. The decision was nounced February 7, 1883, and on March 26, 1883, rule 59 in admiralty was promulgated by this court. 112 U. S. 743, Append. This rule provided for procedure through which, in a suit against one vessel for damage by collision, process might be issued in the same suit against any other vessel charged with contributing to the same collision, or any other party, and for proceedings thereon.

In The Alert the district court decided that in an action in rem against a chartered ship, for damage to cargo, the charterers might, on the claimants' petition showing that the damage arose from the charterers' fault, be made parties defendant on the analogy of The Hudson, and of rule 59. Afterwards, the court, having no doubt, upon the evidence taken in the case, that libelant was entitled to a decree against the Alert,-while it did not clear up the dispute between the codefendants, held that the libelant might take a decree against the Alert, and the case be retained for subsequent determination as between the defendants. 44 Fed. 685. The claimants thereupon appealed to the circuit court of appeals for the Second circuit, because the district court had not decided the whole case, and determined the rights of all the parties thereto, but the decree of the district court was affirmed. 9 C. C. A. 390, 61 Fed. 113.

The opinion of the district judge on the motion to set aside the process against the charterers, as unauthorized (40 Fed. 836), is an able and exhaustive discussion of the question involved.

The Alert was sued in rem for damage to cargo by the breaking of her tackle while discharging under a charter, and her owners, in their answer, averred that the tackle was furnished either by the shipper or by the charterers, under a special agreement between them, and not by the ship. The learned judge said: "The papers on which the present order against the charterers was issued show that the contract sued on was the charterers' contract. The libel is for damages upon the breach of this contract, through a negligent delivery of cargo. The charterers were in possession of the ship; they were the owners pro hac vice; they were the principals in the contract. The bill of lading was their obligation, not that of the master, who protested against such cargo, and no fault appears in the ship or master. The owners of the ship, who have

been obliged to interpose as claimants to prevent the sacrifice of their property, and the master, are under no personal responsibility. They are strangers to the contract sued on, and without any certain means of ascertaining the facts, or producing the evidence of them. Upon the case, as thus far presented, if the ship is liable, the charterers are also liable, and bound to indemnify the claimants. Yet the claimants, if defeated in this suit, when they sue the charterers for indemnity, may be again defeated, through the difference in the proofs; and the libelants, if defeated here, may again sue the charterers. If the charterers admitted their obligation to indemnify the claimants for the results of the present action, or if there were any express contract imposing this.ob-* ligation on them, the need of such an order as the present would be less, since notice to the charterers of the pendency of this action, and an opportunity to defend it. would bind them by the result,

though this would not prevent the injustice to the shipowners of being compelled to pay the damages on the charterers' contract before the latter were called on for payment.

"The charterers, however, do not admit their liability to indemnify the shipowners. There is no express contract covering the point. The obligation of the charterers to indemnify is directly involved in the question to be tried in this suit, viz. whether the charterers agreed to supply the tackle, and depends on the same evidence. The charterers, if not made parties now, might litigate the same question anew in any subsequent suit. Under the former prac

tice in equity, the charterers would be brought in as defendants, as a matter of course. Under the present practice in England, since 1873, the introduction of third persons in such cases is in the ordinary course of procedure, even in common-law suits."

Many cases under the English judicature act were cited, and the practice in countries deriving their procedure from the civil law examined in the light of authority.

In the case at bar the bill of lading under which the cargo described in the libel was transported was the contract of the New York & Porto Rico Steamship Company, and not the contract of the shipowners. It was issued in virtue of authority conferred by the charter party, and the charter party was alleged in the petition to be the basis of the claim made by the shipowners to receive indemnity for any sum they might be compelled to pay by reason of the charterers' negligence in and about the transportation of the cargo.

The district court had jurisdiction over subject-matter and parties, so far as the libel was concerned, and if, after decree thereon against the shipowners, the latter had brought suit against the charterers to

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GLOVER et al. (January 7, 1895.) No. 57.

(155 U. S. 513)

recover from them under the provisions of the charter party, the damages the ship- STATE OF INDIANA ex rel. STANTON v. owners had been compelled to pay, or if libelants had originally proceeded against the charterers in personam, for breach of the implied or expressed obligations of the bill of lading, the district court would have had jurisdiction.

In this instance the district court saw fit to adopt the practice which would have obtained in equity,-of bringing all the parties in, and trying the whole matter at once,and we are asked to prohibit that court from so proceeding on the ground of want of jurisdiction thus to implead the charterers. We have recently thus stated the principles applicable to the issue of the writ of prohibition, in Re Rice, 15 Sup. Ct. 149: "Where it appears that the court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset, and has no other remedy, is entitled to a writ of prohibition, as a matter of right. But where there is another legal remedy, by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary. Nor is the granting of the writ obligatory where the case has gone to sentence, and the want of jurisdiction does not appear upon the face of the proceedings. Smith v. Whitney, 116 U. S. 167, 173, 6 Sup. Ct. 570; In re Cooper, 143 U. S. 472, 495, 12 Sup. Ct. 453."

Without reviewing the action of the district court on its merits, it certainly cannot be said that that court was clearly without jurisdiction, or that petitioners were without other remedy, for, in the event of a decree against them, they could appeal directly to this court on the question of jurisdiction, or to the circuit court of appeals upon the whole case, and that court might certify the question to this court for decision. In re Morrison, 147 U. S. 14, 26, 13 Sup. Ct. 246; United States v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39.

And the case is far from being one in which we should regard it as a proper exercise of discretion to interfere with the orderly progress of the suit below by the issue of this writ. The district court, having general jurisdiction over the subject-matter and over the parties, should be allowed to proceed to decision; and, if error has been committed in entertaining the claimants' contention against the charterers in the same suit with the libel against the ship, it may be corrected on appeal. In re Fassett, 142 U. S. 479, 484, 12 Sup. Ct. 295; Moran v. Sturges, 154 U. S. 256, 286, 14 Sup. Ct. 1019. Writ of prohibition denied.

TOWNSHIP TRUSTEE UNAUTHORIZED ISSUE OF CERTIFICATES-ACTION ON BOND-COM

PLAINT JURISDICTION.

1. In an action by the state, on the relation of the holder of notes illegally executed by a township trustee, on the trustee's official bond, for such illegal execution, the relator will be considered the sole plaintiff, for determining the jurisdiction of the circuit court on the ground of diverse citizenship.

2. Rev. St. § 629, providing that an action in favor of the assignee of a note cannot be brought in the circuit court to recover the contents of the note, unless it could have been brought, had there been no assignment, does not apply to an action, on the relation of the assignee of the note, on the official bond of a township trustee, for illegally executing the note.

3. Under Act Ind. March 5, 1SS3, providing that a township trustee who contracts a debt in the name or in behalf of his township, contrary to Rev. St. Ind. 1881, §§ 6006, 6007 (Rev. St. 1894, §§ 8081, 8082), requiring him, before doing so, to procure an order from the county commissioners, shall be liable on his official bond, to the holder of any contract or other evidence of such indebtedness, for the amount thereof, recovery can be had only for the actual amount of indebtedness contracted by him, and which was within his authority, as trustee, to contract, except for sections 6006, 6007, Rev. St. Ind. 1881 (sections SOS1, 8082, Rev. St. 1894); and therefore a complaint alleging that he executed certificates of indebtedness of the township for a large amount of school supplies, without any allegation that they were suitable or necessary for the township, or were worth the face of the certificates, or that the certifi cates were taken in good faith, is insufficient.

In Error to the Circuit Court of the United States for the District of Indiana.

This was an action brought in the name of the state of Indiana, on the relation of Walter Stanton, trustee, a citizen of New York, against Arista Glover and four other defendants, citizens of Indiana, on the official bond of said Glover as trustee of Mill Creek township, in the county of Fountain, state of Indiana, the other defendants being sure ties on said bond. The complaint was demurred to on the grounds that it did not state facts sufficient to constitute a cause of action, and that the court had no jurisdiction of the subject-matter. The demurrer was sustained, and judgment rendered in favor of defendants, and plaintiff sued out a writ of error.

The complaint averred that Glover was elected trustee of the township, April 7, 1884, qualified April 19th, and entered upon the discharge of his duties as such, and so continued until some time in the month of August or September, 1885, when he abandoned his office and fled the country; that on April 19, 1884, he executed his bond as such trustee, with his codefendants as sureties thereon, a copy of which bond is made part of the complaint, and the first condition expressed therein is that "the said Arista Glover shall

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well and faithfully discharge the duties of said office according to law." The complaint stated facts showing that, under the provisions of law in that behalf, the township trustee had no right to incur any further debt on behalf of his township without first procuring an order from the board of county commissioners allowing him to contract therefor, and averred that, in violation of the duties of his office and of the terms of his bond, said Glover executed and delivered to R. B. Pollard certain promissory notes, seven in number, aggregating $5,375.76, all of the same form, filed as exhibits, and made part of the complaint, and one of which is as follows:

"$772.50. State of Indiana, County of Fountain, Trustee's Office, Mill Creek School Township, May 19th, 1885.

"This is to certify that there is now due from this township to R. B. Pollard or order seven hundred & seventy-two & 50-100 dollars, for school supplies bought for and received by this township, and payable out of the special school funds, for which taxes are now levied, at the Citizens' Bank, at Attica, Indiana, on the 20th day of January, 1887, with interest at 8 per cent. per annum on the amount from date till paid, and attorney's fees. Arista Glover,

"School Trustee of Mill Creek Township." It was further alleged that Glover, "as such trustee, did not, at or prior to the execution of said promissory notes, or either or any of them, nor at any other time, obtain any order from the board of commissioners of said Fountain county, authorizing him to contract any indebtedness for or in the name of said Mill Creek school township, but the execution and delivery of said notes, and each and every of them, was executed and issued in express violation of the provisions of sections 1 and 2 of the act of the general assembly of the state of Indiana, entitled 'An act to limit the powers of township trustees in incurring debts and requiring them to designate certain days for transacting township business,' approved March 11, 1875, the same being sections numbered 6006 and 6007 of the Revised Statutes of 1881 (sections 8081, 8082, Rev. St. 1894) of the state of Indiana." The complaint then averred the transfer by Pollard of the notes, in blank, for value received, to certain banks and a trust company, citizens of Rhode Island, and their transfer and delivery to the plaintiff; that subsequent to the indorsements, and prior to the institution of the suit, Pollard abandoned his residence and citizenship in the United States, and fled beyond the seas; and that plaintiff was unable to state whether Pollard had acquired a citizenship in a foreign country, or of what country; but plaintiff averred that he is not now, and was not at the commencement of this action, either a resident or citizen of the state of Indiana.

In the second paragraph or count of the

complaint, plaintiff averred that Glover "did, in violation of the duties of his office, and of the terms and conditions of his bond aforesaid, purchase and obtain from one R. B. Pollard a large amount of goods for the use of the schools of said Mill Creek township, and in payment therefor did execute and deliver to said R. B. Pollard" the notes (describing them), and that said Glover, "as such trustee, did not at, or prior to the purchase of said goods or the execution and de livery of said promissory notes, or either or any of them, nor at any other time, obtain any order from the board of commissioners of said Fountain county authorizing him to contract any indebtedness for or in the name of said Mill Creek school township, but the purchasing of said goods and the execution and delivery of said notes, and each and ev-, ery of them, was made in express violation of the provisions" of sections 6006 and 6007, Rev. St. 1881 (sections 8081, 8082, Rev. St. 1894). Both paragraphs of the complaint were otherwise the same, and the breach alleged was the execution of the notes or certificates in question.

Section 6006 of the Revised Statutes of 1881 (section 8081, Rev. St. 1894) is: "Whenever it becomes necessary for the trustee of any township in this state to incur on behalf of his township, any debt or debts whose aggregate amount shall be in excess of the fund on hand to which such debt or debts are chargeable, and of the fund to be derived from the tax assessed against his township for the year in which such debt is to be incurred, such trustee shall first procure an order from the board of county commissioners of the county in which such township is situated, authorizing him to contract such indebtedness."

Section 6007, Rev. St. 1881 (section 8082, Rev. St. 1894), provided for the manner in which such order of the board of county commissioners should be obtained by the trustee.

On March 5, 1883, an act of the legislature of Indiana was approved, entitled "An act touching the duties of township trustees with reference to liquidating and contracting indebtedness of townships in certain cases." The second section of this act reads as follows: "And it is further provided that any township trustee, in any county of the state of Indiana, who shall contract any debt in the name or in behalf of any civil or school township of which he may be the trustee, contrary to the provisions of sections one and two of 'An act to limit the powers of township trustees in incurring debts, and requiring him to designate certain days for transacting township business,' approved March 11, 1875, (the same being numbered 6006 and 6007 of the Revised Statutes of the state of Indiana,) shall be personally liable, and liable on his official bond, to the holder of any contract or other evidence of such indebtedness, for the amount thereof." Acts

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Ind. 1883, c. 95, p. 114. This act was repealed March 9, 1889 (Acts Ind. 1889, c. 138, p. 278), but was in force at the date of the bond sued on, and at the date of the alleged breach thereof.

J. M. Wilson, S. Claypool, and Wm. A. Ketcham, for plaintiff in error. W. W. Dudley, L. T. Michener, and Chas. B. Stuart, for defendants in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The case must be treated, so far as the jurisdiction of the circuit court is concerned, as though Stanton was alone named as plaintiff. Maryland v. Baldwin, 112 U. S. 490, 5 Sup. Ct. 278. If the suit could be regarded as founded on the certificates attached to the complaint, there would be a want of jurisdiction, as it does not appear that Pollard could have prosecuted the suit in the circuit court. Rev. St. § 629; 18 Stat. 470, c. 137; 24 Stat. 552, 553, c. 373. But as the suit is upon the bond, and Stanton and his cestuis que trustent were citizens of other states than Indiana, we think the jurisdiction may be maintained.

But, although the suit is upon the bond, the liability asserted under section 2 of the act of 1883 is to the holder of the certificates, "for the amount thereof," and the breach alleged is the execution of the certificates.

Such a liability might be transferable to successive holders of the warrant or certificate, but it would seem quite clear that, if the liability did not exist in favor of the payee, subsequent holders would stand in no better position. Certificates like those exhibited in the case at bar, made and payable in Indiana, out of a particular fund, and purporting to be the obligations of a corporation existing under public laws, and endowed only with restricted powers, granted for special and purely local purposes of a noncommercial character, are not governed by the law merchant, and are open, in the hands of subsequent holders, to the same defenses as existed against the original payee. Stanton v. Shipley, 27 Fed. 498; State v. Hawes, 112 Ind. 323, 14 N. E. 87; Merrill v. Monticello, 138 U. S. 673, 11 Sup. Ct. 441.

The contention is that where an order of the county commissioners is requisite, under sections 6006 and 6007 of the Revised Statutes of Indiana of 1881 (sections 8081, SOS2, Rev. St. 1894), to empower a township trustee to contract indebtedness, and has not been obtained, the mere fact of the issue of a warrant or certificate by the trustee, in form the warrant or certificate of the township, authorizes the recovery of the amount thereof, of the trustee and his sureties, by suit on the official bond. We cannot concur in that view.

The section in question provides that when

the trustee contracts a debt in the name or in behalf of the township, without the proper order of the county commissioners, if required, liability on the official bond is incurred to the holder of the contract or other evidence of such indebtedness. The indebtedness thus referred to is manifestly an indebtedness contracted within the line of official duty and authority, for something furnished to or obtained for the township, although in disregard of the provisions of sections 6006 and 6007, Rev. St. 1881 (sections8081, 8082, Rev. St. 1894). The sureties were not subjected to liability by the statute for the payment of warrants or certificates which, apart from those sections, it was not within the authority of the trustee to execute, or which were fraudulent in themselves, but only when persons had in good faith parted with money or property to the township on the strength of the official character of the transaction. Such we understand to be the construction put upon the act by the highest judicial tribunal of Indiana. That court, in School Tp. v. Litton, 116 Ind. 467, 475, 19 N. E. 323, pointed out that, by the first section of the act, provision was made for the protection of creditors without actual knowledge of the facts, where a township trustee had theretofore undertaken to incur debts without an order of the county commissioners, when such an order was requisite, and that by the second section it was attempted to check further extravagance, and at the same time to save innocent creditors. But a writing purporting to be evidence of such indebtedness could not create, it. And, in respect of school supplies, the supreme court of Indiana has decided “again and again that a township trustee has no power, by any form of obligation, to bind the corporation of which he is the agent or trustee by contract for school supplies, unless supplies suitable and reasonably necessary have been actually delivered to and received by the township." Boyd v. School Tp., 114 Ind. 210, 16 N. E. 511.

In State v. Hawes, 112 Ind. 323, 14 N. E. 87, the action was brought on the official bond of a trustee to recover for a certificate made to Pollard, purporting to be for school supplies bought and received by the township; it being averred that the same was executed in violation of sections 6006 and 6007, Rev. St. 1881 (sections SOS1, 8082, Rev. St. 1894). The certificate was in fact issued without any actual consideration, and the supreme court said: "The liability imposed by the act of 1883 requires, as a condition precedent, that the township trustee must have contracted a debt, in the name or in behalf of his township, either civil or school, and the debt must have been contracted in violation of the provisions of sections GOOG and 6007, Rev. St. 1881 (sections 8081, 8082, Rev. St. 1894). If, therefore, the transaction in which the certificate had its inception was such as to create no debt, or if the debt

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