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![handle is hein.slavery/ussccases0376 and id is 1 raw text is: IHANDLIN V. WICKLIFFE.
Syllabus.
Albany to New York, more canal-boats in one tow than can
be safely handled in the waters of New York, they must see
that the large amount of property intrusted to their care is
not placed in jeopardy, through the want of preliminary
caution and foresight on the part of the officers of their
steamers.
It is objected that the libel does not specifically charge
this antecedent negligence as a fault. This is true, and the
libel is defective on that account, but in admiralty an omis-
sion to state some facts which prove to be material, but
which cannot have occasioned any surprise to the opposite
party, will not be allowed to work any injury to the libellant,
if the court can see there was no design on his part in omit-
ting to state them.* There is no doctrine of mere technical
variance in the admiralty, and subject to the rule above
stated, it is the duty of the court to extract the real case
from the whole record, and decide accordingly. It is very
clear that the libellant had no design in view in omitting to
state the failure to stop as a fault, and equally clear, that the
proof on that subject, corning, as it did, from the opposite
party, could not have operated to surprise them.
JUDGMENT AFFIRMED.
HANDLIN V. WICKLIFFE.
The appointment by Brigadier-General Shepley, during the late rebellion,
of W. W. Handlin as judge of the Third District Court of New Or-
leans, then occupied by the government troops and under a military
governor appointed by the President, was an appointment purely mili-
tary, authorized only by the necessities of military occupation, and sub-
ject to revocation whenever, in the judgment of the military governor,
revocation should become necessary or expedient.
It was accordingly revocable by Governor Hahn in his capacity of
military governor (which he was by appointment of the President), in
case the adoption of the constitution (which some asserted was adopted),
during the war under military orders, and the election of Hahn as gov-
ernor, did not affect the military occupation; and in case it did, and
* The Quickstep, 9 Wallace, 670; The Clement, 2 Curtis, 863.
Dec. 1870.]](ViewImageLocal?handle=hein.slavery/ussccases0376&div=1&collection=&method=preview&ext=.png&size=3)