Page:Federal Reporter, 1st Series, Volume 8.djvu/41

 WOOD V. PHŒNIX INS. 00. 27 �ants to Pierce — is undoubtedly an injurious fraudapon the oomplain- ants, for which they are entitled to redress, or, so far as not consum- mated, to prevent. Permitting the proceeds of the sale of the goods to be paid to Sharpe on his executions, is simply to permit the con- Bummation of that fraud, if one has been contemplated. �Into the inquiry as to the merits of the two sides of that contro- versy, it is not appropriate to enter now. Its adjudication must be postponed until the final hearing. As I have already said, in refer- ence to the motion to dismiss the attachments, there is in my opinion reasonable ground shown in the affidavits for permitting the contro- versy to proceed to final determination, without prejudice from these preliminary proceedings. �The motion to dismiss the attachments, and that to dissolve the injunction or modify the previous ordor of the court in respect to the fund in the hands of the sheriff, are overruled. ���WooD V. The Phcbnix Ins. Co.* {Circuit Court, E. B. Pennsylmnin. July 1, 1881.) �1. Insurance— General Average— Deck Cargo. �Goods carried oa deck are entitled to the benefit of general average, wliera they are so carried In pursuance of a general custom. �2. Same — Ikon Pipe. �The evidence in this case beld to estahlish such a general custom as to car- goes of iron pipe. H. Sahe. �The opinion of the district court in this case, (1 Fbd. Rbp. 235,) as to the law of the case, concurred in, but the decision reversed upon additional testimonj as to custom taken after the appeal. �• Appeal from the Decree of the District Court. �This was a libel by the owner of a deck load of iron pipe, jetti- soned, against the underwriter of the balance of the cargo, to recover contribution by general average. The court below decided that, as a general rule, goods carried on deck were not entitled to the benefit of general average; that to this rule there were several excep- tions, among which was the case of goods carried on deck in pursu- ance of a general custom; that the burden of proving such custom ■was on libellant, and that his evidence had not been suf&cient to establish it. (Eeported 1 Fed. Rep. 235.) Libellant appealed, and in the circuit court took the testimony of five additional witnesses. �*Eeported by Frank P. Prlchard, Bsq., of the Philadelphia bar. ��� �