Opinion of the Court.

It has been strenuously maintained in behalf of the appellants that the Circuit Court erred in not making any finding upon the distinct issue, presented by the pleadings, whether by the uniform and established custom of trade between Baltimore and other Atlantic ports, and the ports of Norway and Denmark, Aalborg was recognized as being, and understood to be, a safe, direct port of Denmark, within the meaning of such a charter-party.

The answer to this position is twofold: 1st. It does not appear on this record that there was any proof of such a custom. If the appellants did offer such proof, and it was rejected or disregarded by the court, their remedy was by tendering a bill of exceptions, and thus making their offer, and the action of the court thereon, part of the record, which has not been done. The Francis Wright, 105 U. S. 381, 387. 2d. Evidence of a custom to consider as safe a particular port, which in fact is not reasonably safe, would directly contradict the charter-party, and would therefore be incompetent as matter of law. Barnard v. Kellogg, 10 Wall. 383; The Alhambra, 6 P. D. 68; Hayton v. Irwin, 5 C. P. D. 130.

The charterers, having refused to order the vessel to such a port as the charter-party called for, and having insisted on ordering her to a different one, were rightly held to be in default and answerable in damages; and the subject remaining to be considered is the amount of damages awarded against them, consisting of the whole amount of freight, and of the expense of taking out the cargo, and of wharfage and towing.

The material facts appearing upon the record, bearing upon this subject, are as follows:

The charterers having detained the vessel by their persistent refusal to order her to such a port as was described in the charter-party, the master, as he had a right to do, treating the charter-party as still existing, filed successive libels, claiming demurrage accruing under it, until the charterers filed a cross Jibel, contending that the master (who had only maintained the just rights of the owners) had committed a breach of the charter-party. It being then hopeless that the charterers

Opinion of the Court.

would perform the charter-party on their part, the master proceeded to take out the cargo, and the owners were entitled to freight. The Circuit Court has found simply that the time required to perform such a voyage as that stated in the charter would have been about the same time as elapsed before the vessel procured another charter; that another charter was procured as soon as could have been done; and that the expenses of the vessel in port were not less than on the

voyage.

Nothing, therefore, is shown to take the case out of the general rule, that a ship-owner, who is prevented from performing the voyage by a wrongful act of the charterer, is prima facie entitled to the freight that he would have earned, less what it would have cost him to earn it. Kleine v. Catara, 2 Gallison, 61; Ashburner v. Balchen, 7 N. Y. 262; Smith v. McGuire, 3 H. & N. 554; S. C. 27 L. J. (N. S.) Exch. 465.

It is further contended that the court erred in awarding as damages the whole freight, amounting to $3285.60, under libels claiming only demurrage and expenses to the amount of $2470.20. But those libels set forth all the material facts ultimately found by the court, and each libel contained a prayer for general relief.

In the courts of admiralty of the United States, although the proofs of each party must substantially correspond to his allegations, so far as to prevent surprise, yet there are no technical rules of variance, or of departure in pleading, as at common law; and if a libellant propounds with distinctness the substantive facts upon which he relies, and prays, either specially or generally, for appropriate relief, (even if there is some inaccuracy in his statement of subordinate facts, or of the legal effect of the facts propounded,) the court may award any relief which the law applicable to the case warrants. Dupont v. Vance, 19 How. 162; The Syracuse, 12 Wall. 167; Dexter v. Munroe, 2 Sprague, 39; The Cambridge, 2 Lowell, 21. Decree affirmed.

Opinion of the Court.

QUIMBY v. BOYD.

ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO.

No. 121. Submitted November 19, 1888. Decided November 26, 1888.

In error to a state court, a Federal question not raised in the court below will not support this court's jurisdiction.

MOTION TO DISMISS OR AFFIRM. The case is stated in the opinion.

Mr. George A. King for the motion.

No one opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

This is a writ of error to a judgment of the Supreme Court of Colorado in affirmance of a judgment rendered on a verdict in favor of defendants in error in the District Court of El Paso County, in that State, against plaintiffs in error, for the recovery of a certain lode and mining claim known as the Paymaster Lode, situated in the Monarch Mining District in Chaffee County, Colorado, which defendants in error alleged had been duly located under the mining laws of the United States by one Shepard, from whom they purchased, and upon which plaintiffs in error had, as they averred, unlawfully entered.

The errors assigned are that the court erred in holding the record to have sufficiently identified the mining claim of defendants in error; that the record of such claim, "three hundred feet wide by fifteen hundred feet in length, was valid without reference to the vein or its relative position to the boundaries;" that the original location in marking the boundaries of the claim might, in that mining district, "where claims were limited to one hundred and fifty feet on each side of the centre of the vein, take thirty-three feet on one side and make

Syllabus.

up for the deficiency by taking two hundred and sixty-seven feet on the other side; that the annual labor performed by defendants in error on their alleged claim for the year 1880 "should not be measured by its actual value when done, but by a speculative value in advance;" that judgment should have been given for plaintiffs in error, and not for defendants in

error.

We do not find that in the trial court or in the Supreme Court of the State the fact that the claim of plaintiffs below followed in its length the general course of the vein, or that the side lines were substantially parallel with, and the end lines at right angles to, the vein, was drawn in question, and it is therefore too late to do so here as the basis of jurisdiction, and in our view the other alleged errors involved questions either of fact or of state and not of Federal law.

The motion to dismiss the writ of error is therefore sustained.

DENNY v. BENNETT.

ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA.

No. 67. Argued and submitted November 8, 1888. Decided November 26, 1888.

The act of the legislature of Minnesota of March 7, 1881, c. 148, entitled “An Act to prevent debtors from giving preference to creditors, and to secure the equal distribution of the property of debtors among their creditors, and for the release of debts against debtors," which provides that, whenever the property of a debtor is seized by an attachment or execution against him, he may make an assignment of all his property and estate, not exempt by law, for the equal benefit of all his creditors who shall file releases of their debts and claims, and that his property shall be equitably distributed among such creditors is not repugnant to the Constitution of the United States, so far as it affects citizens of States other than Minnesota.

Statutes limiting the right of the creditor to enforce his claims against the property of the debtor are part of all contracts made after they take effect, and do not impair the obligation of such contracts.

A clause in an assignment for the benefit of creditors under the Minnesota Statute of March 7, 1881, directing the payment to the assignor of any

Citations for Plaintiff in Error.

surplus remaining after payment in full to creditors proving their debts, does not invalidate the assignment.

A state statute providing for the distribution of the property of a debtor among his creditors, and his discharge from his debts, does not release a debt due to a citizen of another State, who does not prove his debt, nor become subject to the jurisdiction of the court.

An application by the assignee of an insolvent debtor, under a state statute, to be admitted as a party in a suit pending in a Circuit Court of the United States against the insolvent, in which his property was attached by the marshal on mesne process, and for a dissolution of the attachment, and an order of the Circuit Court allowing him to become a party, but refusing to dissolve the attachment, do not make the assignee a party to that suit without further action on his part, and do not estop him from setting up a claim to the property in the hands of the marshal under the attachment.

TROVER against the marshal of the Circuit Court of the United States for the District of Minnesota for the conversion of property seized under a writ of attachment issuing out of that court. Verdict for the plaintiff, and judgment on the verdict. The defendant sued out this writ of error. The case is stated in the opinion.

Mr. C. D. O'Brien for plaintiff in error cited: Hutchinson v. Lord, 1 Wisconsin, 286; S. C. 60 Am. Dec. 381; Bogert v. Phelps, 14 Wisconsin, 88, 95; Thayer v. Willet, 5 Bosworth (N. Y.) 344, 354; Fallon v. McCunn, 7 Bosworth (N. Y.) 141; Damon v. Bryant, 2 Pick. 411; Pratt v. Wheeler, 6 Gray, 520; Owen v. Dixon, 17 Conn. 492, 497, 498; Gilman v. Lockwood, 4 Wall. 409; Ogden v. Saunders, 12 Wheat. 213; Sturges v. Crowninshield, 4 Wheat. 122; Baldwin v. Hale, 1 Wall. 223; Union Bank of Tenn. v. Jolly's Administrators, 18 How. 503; Hyde v. Stone, 20 How. 170; Payne v. Hook, 7 Wall. 425; Green v. Clarke, 2 Kernan (12 N. Y.) 343; Bigelow v. Windsor, 1 Gray, 299, 301; King v. Chase, 15 N. H. 1; S. C. 41 Am. Dec. 675; Robinson v. Leavitt, 7 N. H. 73; Vooght v. Wincht, 2 B. & Ald. 662; Outram v. Morewood, 3 East, 346; Strutt v. Bovington, 5 Esp. 56; Calhoun's Lessee v. Dunning, 4 Dall. 120; Eastman v. Cooper, 15 Pick. 276; S. C. 26 Am. Dec. 600; Le Guen v. Gouverneur, 1 Johns. Cas. 436; S. C. 1 Am. Dec. 121; Buck v. Colbath, 3 Wall. 334; Taylor v. Carryl, 20 How.