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Hager v. Homson/Opinion of the Court

The Circuit Court dismissed the bill, and the complainant took an appeal to this court.

Mr. Ransom, of New Jersey, for the appellant. The complainant is entitled to have from the defendants such a sum of money for his stock as, upon a fair examination of the affairs of the company, and a proper estimate of its assets, the stock may be found to be worth; and if the examination at Princeton was not a fair one, he is entitled to a restatement. The account taken at Princeton is not conclusive. Perkins vs. Hart, Executor, (11 Wheat., 256;) S.C.., 6 Curtis, 587; Chappedelaine et al. vs. Dechenaux, Executor, (4 Cranch, 306;) S.C.., 2 Curtis, 114; 1 Bald. C. C. R., 418; Kelsey vs. Hobley, (16 Pet. R., 269.)

If the assurances given by the defendants to the complainant, that the books were correct and the abstract true, were false, then those assurances were a fraud upon the complainant, which vitiates the account rendered, and entitles him to a new account and a new valuation of his stock. 1 Story's Eq. Juris., § 200; Atwood vs. Small, (6 Clark & Finnelly's R., 232, 233;) Camp vs. Pulver, (5 Barb. Sup. Ct. R., 91;) Sandford vs. Handy, (23 Wend. R., 260;) Wilson vs. Force, (6 Johns. R., 111;) Snyder vs. Finley, (Coxe, 78;) Gilbert vs. Hoffman, (2 Watts, 66;) Hazard vs. Irwin, (18 Pick., 95;) Rodgers, Executor, vs. Grundy, (3 Pet. R., 210;) Smith vs. Richards, (13 Pet. R., 26.)

Another reason is, the defendants stood in the relation of trustees to the complainant and the other stockholders of the company, and being in possession of full and perfect information concerning its affairs, they took advantage of the superior knowledge which their position gave them to purchase the stock of the complainant for less than its real value, withholding from him the information to which he was entitled. In such cases the court will carefully inquire into and sift all the circumstances in order to ascertain the perfect fairness and propriety of the transaction, and if any unfair advantage has been taken by withholding information or other fraudulent dealing, the purchase will at once be set aside. Hill on Trustees, 537; 9 Ves., 246-7; Morse vs. Royal, (12 Ves., 373;) Ayliff vs. Murray, (2 Atk., 59;) Boyd vs. Hawkins, (2 Dev. Eq., 195, 329;) Schuartz vs. Wendell, (Walker's Ch., 627;) Farr vs. Farr, (1 Hill's Eq., 390;) Stewart vs. Kissam, (2 Barb. S.C.., 494;) Allen vs. Bryant, (7 Ired. Eq., 276;) Hunter vs. Atkins, (3 M. & H., 135;) Herne vs. Mars, (1 Vern., 465;) Fox vs. Macreth, (2 Brown's Ch. Cas., 400;) Scott vs. Davis, (Mylne & Craig's R., 87;) Freeman vs. Brooks, (9 Pick., 212.)

Mr. Bradley, of New Jersey, for the appellees. Even if the charges of error were not shown to be unfounded, or satisfactorily explained, they should be deemed settled by reason of the sale of the plaintiff's stock to the company on the 13th of January, 1848.

The plaintiff had already filed a bill against the defendants Stevens, Thomson and Neilson, charging that the defendants had never accounted for the earnings of the company in its various branches of business, and that the books showing these transactions were kept by and in the hands of the New York and Philadelphia agents, Anderson, Decker, Gatzner, Free man, A. S. Nelson, &c., and would show the results of the business. The bill was fully answered, issue joined, testimony taken, and the books of the company exhibited before a master and examined by the complainant and his counsel. After the parties were thus at arms' length, a proposition was made to compromise by the purchase of the complainant's stock at what it appeared to be worth by examining the books and appraising the property. The proposition was agreed to and carried out at Princeton. The books were produced and examined as fully as the plaintiff chose. He asked for no others.

A mistake was made at this appraisement, it is true, but it was in favor of the complainant, the valuation of the property being fifty thousand dollars too high. The complainant refused to correct, it, saying it was too late to correct errors. He took his own course to get at the value of the stock. He was not misled; he was on his guard. He had already charged the defendants with misleading him. Such a settlement will not be disturbed without the clearest evidence of fraud on its face. Stearns vs. Page, (7 Howard, 819;) Baker vs. Biddle, (Baldwin's C. C. R., 418;) Drew vs. Power, (1 Schoale & Lefroy, 182;) Johnson vs. Curtis, (3 Brown's Ch. Co., 266;) Wilde vs. Jenkins, (4 Paige, 481;) Lockwood vs. Thorne, (1 Kernan, 170;) Phillips vs. Belden, (2 Edw. Ch. Rep., 1;) Chappedelaine vs. Dechenaux, (4 Cranch, 306;) Story's Eq. Jurisprud., § 523-529; Beame's Pleas, 227; Small Boudinot, (1 Stockton, 381.)

Officers and agents of a body corporate cannot be sued by individual corporators, except in cases of fraud, and where no other remedy can be had. Angell & Ames on Corp., 6th ed., sec. 312; Bayless vs. Orme et al., (1 Freeman, Miss., 175;) Hersey vs. Veazie, (11 Shepley R., 9, 12;) Hodges vs. New Eng. Screw Co. et al., (1 R. Isl. R., 312;) Smith vs. Hurd et al., (12 Metc. R., 371;) Abbot vs. Merriam, (8 Cushing's R., 588, 590;) Robinson vs. Smith, (3 Paige, 222;) Austin vs. Daniels, (4 Denio, 301;) Mozley vs. Alston, (1 Phillips, 790;) Brown vs. Van Dyke, (4 Halst. N. J. Ch. R., 795;) Smith vs. Poor, (40 Maine R., 415;) Forbes vs. Whitlock, (3 Edw. Ch. R., 446.)

Mr. Justice CLIFFORD.

This was a bill in equity, and the case comes before the court on appeal from a decree of the Circuit Court of the United States for the district of New Jersey, dismissing the bill of complaint. It was filed on the eighteenth day of May, 1852, and was brought by the appellant.

Some brief reference to the introductory allegations of the bill of complaint, and to the transactions out of which the controversy has arisen, is indispensable, in order that the foundation of the claim made by the complainant may be fully understood.

It appears that the New Brunswick Steamboat and Canal Transportation Company, usually called the New Brunswick Company, was incorporated on the eighteenth day of January, 1831, and that the charter expired, by its own limitation, on the eighteenth day of January, 1852. Shortly after the charter was granted the company was duly organized, with a capital of twenty-five thousand dollars. Seven and two-thirds shares of the stock were taken by the appellant, and he was elected secretary of the company. They purchased a steamboat in 1831, which was employed in the transportation business between New Brunswick and the city of New York; and they also purchased a sloop, which was employed in carrying wood for the steamboat, and was also engaged in the transportation of merchandise on the Raritan river.

Two other companies were also created by the legislature of the State of New Jersey, and authorized to engage in the transportation business. One was called the Delaware and Raritan Canal Company, incorporated in 1830; and the other the Camden and Amboy Railroad Company, incorporated contemporaneously with the New Brunswick Company. Those companies were united in 1831, and were subsequently known as the joint companies. Most or all of the respondents were largely interested in those companies, and in 1834 they purchased about four-fifths of the stock of the New Brunswick Company; but the complainant still retained his shares and his position as secretary of the company and clerk on the steamboat. Whatever might have been the object of the purchasers, it is evident that the transfer of the shares had the effect to impart new energy and efficiency to the management of the company, for they increased the capital stock to fifty thousand dollars, making the par value of the shares two hundred and fifty dollars; and, during the early part of the year 1835, made an arrangement with the joint companies for transporting freight through the canal and over the railroad between New York and Philadelphia, and other intermediate places on the route. Under this arrangement they also built and procured canal boats and barges, and ran them on the Delaware and Raritan rivers and through Staten Island sound to the city of New York, operating them by means of steam-tugs furnished by the joint companies. They also did a large business on the Camden and Amboy railroad, using the locomotives, cars, and steamboats of the railroad company for that purpose. Throughout this period they also continued to operate their steamboat line between New Brunswick and New York; and in 1837 they engaged in the coal business, purchasing and transporting coal to market, as is more fully set forth in the pleadings. Large profits were made by the company under these various arrangements; but they also incurred very large expenses, and the complainant became dissatisfied with the management of the company. Failing to get any redress for his supposed grievances, he, on the twenty-fifth day of March, 1847, filed a bill in equity in the chancery court of the State against three of the present respondents, charging them, as directors of the company, with divers frauds and breaches of trust in the management of its affairs, and praying for an account of all the business of the company. To that bill of complaint the respondents in the suit made answer, denying the charges, and exhibiting what they alleged to be the actual circumstances of the case. Pending that suit, the complainant, with two other persons, purchased four additional shares of the stock of the company, and the same were held in the name of one of those persons for the equal benefit of the purchasers at the time the suit was brought.

With these explanations as to the origin of this controversy, we will proceed to state the foundation of the claim made by the complainant. Among other things, he alleged, that after he had proceeded to take testimony in that suit in support of his bill of complaint, propositions of compromise were made in behalf of the defendants, and that the propositions so made were entertained by him in the spirit of conciliation. Those propositions of compromise, he alleged, were made to him through R. F. Stockton, one of the respondents in this suit, who was the agent of the company and of these respondents; and he aldo alleged, that it was agreed and arranged that the suit should be compromised and settled in the manner and upon the basis set forth in the present bill of complaint. Both parties agree that the suit was settled in consequence of that arrangement, and that the stock of the complainant, including the four shares purchased during the pendency of that suit was transferred to the company; but they differ, in some respects, as to the terms of the agreement providing for the transfer, and still more widely as to the circumstances under which the transfer was made.

As alleged in the bill of complaint, R. F. Stockton applied to the complainant, about the second day of September, 1847, to ascertain whether there could not be an amicable settlement of the matters involved in that suit, and that the conference resulted in an agreement that the company and the defendants in that suit should purchase his stock in the company, and pay him therefor such price or sum as, upon a fair examination of the affairs of the company, and a proper and fair estimate of the money, property, and assets of the company, the stock should be found to be worth. Having set forth the supposed agreement, the complainant proceeded to allege that he and R. F. Stockton, accordingly, met at Princeton, on the thirteenth day of January, 1848, to carry out and complete the same, for the sale and purchase of the stock; that from a partial examination of the books kept by the treasurer, and from assurances there given by R. F. Stockton and others that a certain abstract account there exhibited, and which was taken from the books, was correct, and contained a fair statement of the business of the company, and of the moneys received and of the disbursements made, and not knowing that there were other books of the company not produced at the time the abstract was prepared, he was induced to believe that the account was true and correct, and consequently did, upon the payment of his proportionate part of two hundred and eighty-nine thousand dollars, transfer the stock owned by him, including the four shares purchased during the pendency of the suit, to the company, and received pay for the same from the company's funds. But he alleged that he had since discovered that the abstract account was false and fraudulent in very many particulars, as specified in the bill of complaint; and, therefore, insists that he is entitled to have the settlement corrected and reformed, and to have an account taken of the entire property and estate of the company, and to be paid such additional sum for his stock as the same, upon such accounting, be found to have been worth. On the other hand, the respondents, in their answer, admitted that they, by virtue of their being the last president and directors of the company, became and were the trustees of the corporation, with full power to settle the affairs, collect the outstanding debts, and divide the moneys and other property of the company among the stockholders, after paying the debts due and owing from the corporation; but they allege that the agreement was, that the complainant should sell the stock, held and represented by him, at such price as the same should be found to be worth, upon a fair valuation of the property of the company, and that the complainant, if he desired it, should have an opportunity of examining the company's books to satisfy himself of their correctness. Substantially adopting the language of the bill of complaint, they admitted that the complainant and R. F. Stockton met at Princeton, on the thirteenth day of January, 1848, to make a valuation of the property, and carry out the agreement; but aver that the counsel of the complainant and the defendants in that suit were present, as well as several other directors, and the treasurer and clerk of the company. According to the answer, all those persons, with others connected with the company, were present to aid and assist in making the valuation and statement of the property, and in such examination of the books of the company as the complainant or his counsel might desire to make. In this connection, they also allege that the books of the company were produced at the meeting and were examined by the complainant and his counsel as fully and for such length of time as they desired; and that all such explanations of the same as the complainant or his counsel required were fully and freely given by the persons present, who were the persons best qualified to make such explanations. It was at that meeting that the valuation was made; and the respondents alleged that all of the property of the company, according to the best of their judgment, information, and belief, was fairly and liberally appraised, and to the satisfaction of the complainant; and they also alleged, that he finally agreed that the settlement should be made on the basis that the books were correct as they stood on the second day of April, 1847, when the abstract exhibit was made out, without taking into the account any subsequent transactions. One matter only, and that not now in dispute, was left in doubt, and provision was made for its satisfactory adjustment. Assuming the abstract to be correct, it showed a balance in favor of the company of forty-two thousand one hundred and fifty-six dollars and sixty cents. That sum, added to the appraised value of the property, ought to have been taken, as the respondents alleged, as the true value of the capital stock of the company; but they alleged that, at the suggestion of the complainant, and by mistake on their part, the sum of fifty thousand dollars, being the whole amount of the original capital, was added to that amount as the basis of the settlement, making the sum of two hundred and eighty-nine thousand dollars, as alleged in the bill of complaint. Pursuant to that settlement, the company paid to the complainant one thousand four hundred and forty-five dollars for each share, paying therefor, as they alleged, two hundred and fifty dollars on each share more than they ought to have paid according to the terms of the agreement; and they denied that there was any fraud or deception practised by them or their agents in any part of the transaction. Some eighteen witnesses were examined by the complainant in support of the allegations of the bill of complaint, but the respondents took no testimony; and, after a full hearing in the Circuit Court, a decree was entered dismissing the bill of complaint. 1. It is contended by the complaint, that the agreement obligated the respondents to pay him such price for the stock he transferred to them as, upon a fair examination of the affairs of the company, and a proper and fair estimate of the moneys, property, and assets of the same, the stock was found to be worth; and if the examination of the books at Princeton was not a fair examination of the affairs of the company, and the estimate there made of the moneys, property, and assets of the company was not a proper and fair estimate of the same, and in consequence thereof he was induced to accept a less price than the agreement authorized him to expect and demand, then he is entitled to have an examination of the books and the accounts, and to be paid such additional sum for his sltock as it may be found to have been worth upon such restatement. Suppose the proposition to be correct as a general rule of law, still it remains to be ascertained whether the theory of fact on which it is based is sustained by the evidence. Undoubtedly, if there was any fraud or deception practised upon the complainant, as alleged in the bill of complaint, to induce him to transfer his stock for a less price than he was entitled to receive upon the reasonable fulfilment of the condition of sale to which he had agreed, and in consequence of such fraudulent acts or misrepresentations, he actually parted with the stock at less than its value on the basis of the agreement, then clearly he would be entitled to relief; but the burden of proving the charge of fraud is upon the complainant. Fraud cannot be presumed or inferred without proof in a court of equity, any more than in a court of law; and in both the rule is, that he who makes the charge must prove it; and there are some circumstances in this case, besides the fact that the charge is denied in the answer, that render the application of that rule peculiarly proper. As appears by the complainant's own showing in the present bill of complaint, he became dissatisfied with the manner in which the affairs of the company were conducted as early as the twenty-fifth day of March, 1847; and he accordingly alleges, that on that day he filed his bill in the Chancery Court of the State of New Jersey against three of the present respondents, charging them, as directors of the company, with divers frauds and breaches of trust in the management of its affairs. Answer was made to that suit by the respondents, and the complainant continued to prosecute it until the thirteenth day of January, 1848, when the settlement took place, and he transferred his stock. Most of the substantial matters now in controversy were more or less involved in that litigation; and, during the pendency of the suit, both the complainant and his counsel, on two or more occasions, were allowed to inspect the books of the company, and his own testimony shows that they examined them as fully and for such length of time as they desired. On one occasion the treasurer and book-keeper appeared before the master in chancery, and, in obedience to a subpoena duces tecum, produced the books, and they were examined for several days. His own testimony also shows that he was present at the meeting of the stockholders on the third day of April, 1847, when the abstract in question was made; and several of his witnesses testify that the books were produced and submitted to the examination of the stockholders. No suggestion was made that any other books or vouchers, not produced, were necessary to a full exhibition and understanding of the affairs of the company; and none of the circumstances elicited on the various occasions, when the books were produced, afford any countenance whatever to the theory that any concealment, deception, or evasion was practised by the respondents. On the contrary, they furnish indubitable evidence that the complainant had every reasonable facility, and the most ample means, to ascertain the true state of the accounts. Whatever means of information the respondents had upon the subject appears to have been laid before the complainant, and surely he had no right to ask for more; and he is equally unfortunate, if the testimony adduced by him, as to what occurred at Princeton on the thirteenth day of January, 1848, be compared with the allegations of his bill of complaint. It was at that meeting, it will be remembered, that he accepted the propositions of compromise, and transferred his stock, and the witnesses substantially agree that the allegations of the answer are correct; that his counslel was present, and that he examined the books to his satisfaction, without even suggesting that any others were desired. Complaint is now made that the books of the agents in New York and Philadelphia were not produced on that occasion; but his own witnesses testify that he called for no others at the time; expressed himself as satisfied with the examination; and the bill of complaint admits that he agreed to the settlement, accepted the estimated price of his stock, and transferred it to the company.

Looking at the whole evidence, therefore, it is obvious that the charge of fraud and deception is wholly unsustained by proof, and we think the allegations of mistake, so far as the complainant is concerned, are equally unfounded. But it is fully proved that a mistake in his favor was made in the basis of the settlement to the amount of fifty thousand dollars. That mistake, as appears by the evidence, was made by adding the capital stock to the estimated amount of all the moneys, property, and assets of the company, when, in point of fact, the whole of the capital stock had been expended in purchasing the property already included in the valuation. Before the consideration was paid for the stock the mistake was discovered, and the complainant was requested to consent to the correction by a corresponding reduction from the basis of the settlement, but he replied that it was too late to correct errors. That refusal is a circumstance of some significance, plainly indicating that the complainant did not then think it for his interest to rescind the contract, or that he had been circumvented by the respondents. He who seeks equity should do equity, is a maxim in equity jurisprudence, and we think that rule has some application to this case. 2. Numerous mistakes in the basis of the settlement are alleged in the bill of complaint, and some eighteen in number were urged upon the attention of the court at the argument by the counsel of the complainant. It was held by this court in a case between creditor and debtor that a settled account is only prima facie evidence of its correctness; that it may be impeached by proof of unfairness, or mistake in law or fact; and, if it be confined to particular items of account, it concludes nothing in relation to other items not stated in it. (Perkins vs. Hart, 11 Whea., 256.) Granting the correctness of that principle as applied to the case than before the court, still it is obvious that it cannot have any very direct application to the case under consideration. Much the largest number of controversies between business men are ultimately settled by the parties themselves; and when there is no unfairness, and all the facts are equally known to both sides, an adjustment by them is final and conclusive. Oftentimes a party may be willing to yield something for the sake of a settlement; and if he does so with a full knowledge of the circumstances, he cannot affirm the settlement, and afterwards maintain a suit for that which he voluntarily surrendered. But the present case is one between vendor and vendee, and the rights of the parties must be measured by the terms of the agreement under which the sale and purchase were made. Assuming that the agreement was as is alleged in the bill of complaint, all the complainant could claim was such a price for his stock as, upon a fair examination of the affairs of the company and a proper and fair estimate of its moneys, property, and assets, the stock should be found to be worth. That examination into the affairs of the company was made by the parties to their satisfaction, and they also made the estimate; and there is no evidence of any unfairness, or that they committed any error, except the one already mentioned in favor of the complainant. On this point the complainant called and examined the agents of the railroad line, and the agents of the canal lines, and the agents of the coal barge lines, and they all testified, in substance and effect, that the accounts, or the results of the business, as ascertained by the monthly settlements, were correctly entered on the company's books. All of the accounts of the steamboat line were kept by the treasurer, and it has already appeared that those books were exhibited to the complainant at the time of his settlement. Nothing need be remarked respecting the steamtowing business, except to say that the matter was fully settled between the two companies in 1846, and the result of the settlement was duly entered on the books of the company. Without entering more into detail, suffice it to say that the gravamen of the bill of complaint is, that the complainant was induced to sell his sltock for less than its worth; but he has not introduced one word of proof to sustain the allegation, and his own testimony shows that by mistake he received two hundred and fifty dollars on each share more than he was entitled to according to the agreement. In view of the whole case, we are of the opinion that the complainant has wholly failed to support the allegations of the bill of complaint, and the decree of the Circuit Court is accordingly affirmed, with costs.

title: Hager v. Homson/Opinion of the Court


text: Talk:Hager v. Homson/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Hecker v. Fowler

This was covenant brought in the Circuit Court for the southern district of New York. While the cause was pending there, it was referred by consent. The referee found for the plaintiff. The court entered judgment on the award, and the defendant below took this writ of error. The defendant in error (plaintiff below) moved to dismiss the writ of error, and affirm the judgment.

Mr. Andrews, of New York, in support of the motion. The iacts are not found in a general or special verdict, nor agreed on in a case stated, and there is no bill of exceptions. This court must, therefore, affirm the judgment, unless there is error apparent on the face of the record. Graham vs. Bayne, (18 How., 60;) Guild vs. Frontin, (18 How., 135;) Suydam vs. Williamson, (20 How., 427;) Kelsey vs. Forsyth, (21 How., 85;) Campbell vs. Boyreace, (21 How., 223.) There is no error on the fact of this record.

Mr. Monroe, of New York, resisted the motion.

Mr. Chief Justice TANEY.

title: Hecker v. Fowler


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Hecker v. Fowler/Opinion of the Court

We are asked to dismiss this writ because no error appears on the face of the record. It is not necessary, by the practice of this court, for the party who brings a cause here to specify upon the record the errors he complains of, and they are not even informally brought to our notice until the argument is heard. Want of jurisdiction and irregularity of the writ are the only grounds for dismissal. Where a judgment appears to have been rendered which the party is entitled to have revised in this court, and it is also seen that it comes here for such revision upon proper process, duly issued, all other questions must await the final hearing. To say that there is no error in this judgment, and affirm it for that reason, would be to decide the whole legal merits of the case, and this we cannot do on a motion to dismiss or quash the writ.

Motion denied.

title: Hecker v. Fowler/Opinion of the Court


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Dermott v. Wallach (66 U.S. 96)

Charles S. Wallach brought replevin in the Circuit Court for the District of Columbia against Ann R. Dermott. In his declaration the plaintiff averred that certain articles of household furniture were taken by the defendant and detained against surties and pledges. The defendant pleaded that 'the goods and chattels in the declaration mentioned are not the property of the said plaintiff, and of this she puts herself on the country.' The defendant also avowed the taking of the goods for rent in arrear, setting out the lease, and the amount due thereon. To the avowry the plaintiff replied riens en arriere, but did not formally join issue on the plea of property by putting in a similiter. The defendant prayed the court to instruct the jury on several points, all of them having relation to the one question whether the rent had become due and payable to the plaintiff, as alleged by her. The court refused to give the instructions prayed for, and the jury found that the rent claimed by the defendant 'at the time when, &c., was not in arrear and unpaid, nor was any penny thereof,' assessing the damages of the plaintiff for the taking and detention at one cent. The court gave judgment for the plaintiff, that he have return of the goods, with the damages assessed by the jury and costs.

Mr. Brent, of Maryland, for plaintiff in error.

Mr. Carlisle and Mr. Coxe, of Washington city, for defendant in error.

Mr. Justice NELSON.

title: Dermott v. Wallach (66 U.S. 96)


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Dermott v. Wallach (66 U.S. 96)/Opinion of the Court

This action was replevin, brought by the plaintiff below, Wallach, against the defendant, for taking certain goods and chattels of the plaintiff from a house called the Avenue House, situated in the city of Washington.

The defendant pleaded: 1. That the goods and chattels in the declaration mentioned were not the property of the plaintiff. 2. Avowed the taking, by way of distress, for rent due and in arrear, under special circumstances stated, concluding with a verification. 3. Like avowal for rent due and in arrear generally.

The plaintiff replied to the first avowry, no rent in arrear and unpaid. No notice is taken in the pleadings of the second avowry.

The jury found a special verdict, that no rent was due or in arrear upon the issue joined on the first avowry, and assessed the damages; and judgment was given that the plaintiff recover the goods and chattels, and have a return of the same, &c. No notice is taken in the verdict or judgment of the plea of property.

The plea of property in replevin is a good plea in bar of the action. It is true, the plea in this case is not in due form, and might have been held defective on demurrer; but it is good in substance. The form is to plead property in the defendant, or in a stranger, traversing propery in the plaintiff, which traverse raises the material issue to be tried-the averment of property in the defendant or a stranger being by way of inducement. Either plea constitutes a good defence, because it shows property out of the plaintiff; and prima facie, therefore, he is not in condition to maintain the action. 12 Wend. R., 30, 34, 35.

The plea in this case avers the fact directly, by stating that the goods and chattels in the declaration mentioned are not the property of the said plaintiff. Under this plea, it was competent for the defendant to have proved property in herself, or in a stranger, as this would have tended directly to support the issue; and if the defendant had sustained her plea, and proved property out of the plaintiff, she would have been entitled to a return of the goods and chattels without an avowry, as it would appear the plaintiff, at the time, had no right to take or detain them.

As this plea of property is a good bar to the action, and as the record shows it has not been tried or found by the jury, there has been a mistrial below, for which the judgment must be reversed, and the case sent down, and a new venire ordered. There is a good bar to the action remaining untried, and not yet found for the plaintiff, and hence he is not entitled to the judgment rendered in his behalf in the court below.

It appears that the similiter was not added to the plea of property; but this is now regarded as matter of form, and its omission does not affect its validity.

The omission to join issue upon the second avowry, or to notice it in the finding of jury or in the judgment of the court, is cured after verdict.

There is, also, a second plea by the plaintiff to the first avowry, which issue has not been noticed in the verdict, or on the record; but, as the finding of the first issue rendered the second immaterial, the omission, in this respect, is not important.

Judgment reversed and venire facias de now ordered.


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O'Brien v. Smith

James O'Brien, the defendant below, on the 18th of September, 1858, drew his check on Chubb & Bro. for $1,150, and passed it to the Bank of the Metropolis in part payment of a debt which he owed there, and which was due that day. The drawee's place of business was in the same street with the Bank of the Metropolis, and only eighty feet distant. The Bank of the Metropolis took the check on a Saturday, about two o'clock in the afternoon, and presented it for payment on the following Monday at eleven o'clock in the morning. Chubb & Bro. had failed in the mean time, and payment was refused. The check was duly protested, and notice of its dishonor was regularly given to the drawer.

The Bank of the Metropolis was not an incorporated institution, but a private partnership, carrying on business under that name. Richard Smith, its cashier, held the note for the use of the concern, and brought assumpsit in the Circuit Court to recover the amount of the check from O'Brien, the drawer.

The defence was that the Bank of the Metropolis ought to have demanded payment of the check on the day it was received, and that the postponement of the demand from Saturday until Monday was a want of diligence which discharged the drawer from all liability on the paper.

The Circuit Court instructed the jury that if the plaintiff took the check on the 18th in the afternoon, and presented it for payment on the morning of the 20th, the intervening day being Sunday, there was no delay or negligence which would have the legal effect of discharging the drawer. To these instructions the defendant excepted, and upon the verdict and judgment being rendered against him, he took this writ of error.

Mr. Davidge and Mr. Ingle, for plaintiff in error, argued: 1. That reasonable diligence was not used in presenting the check. Admitting that the demand might have been delayed until the next day, if that had not been Sunday, yet, as this check was received on Saturday, the custom of merchants required it to be presented the same day, and this custom is extended by analogy to the execution of all contracts. 2. The Bank of the Metropolis is not chartered, and the paper sued on is held by the defendant in error for the benefit of an unincorporated partnership. He has no legal title to the paper, and cannot recover in his own name. Olcott vs. Rathbone, (5 Wend., 490;) Sherwood vs. Rays, (14 Pick., 172.)

Mr. Carlisle, for defendant in error. 1. The presentation of the check on Monday morning was in reasonable time. Story on Bills, § 419; Grant on Banking, 50, 200. 2. The plaintiff, as cashier of the bank and holder of the check for the use of the bank, can recover. It was so held in Law vs. Parnell, (7 J. Scott N. S., 282,) which was this very case.

Mr. Chief Justice TANEY.

title: O'Brien v. Smith


text: Talk:O'Brien v. Smith

title: Talk:O'Brien v. Smith


text:
O'Brien v. Smith/Opinion of the Court

We think the decision of the Circuit Court was right upon both of the points raised in the argument. The authorities referred to by the counsel for the defendant in error are conclusive, and it cannot be necessary to discuss here questions which we consider as too well settled to be now open to serious controversy.

Judgment of the Circuit Court affirmed.

title: O'Brien v. Smith/Opinion of the Court


text: Talk:O'Brien v. Smith/Opinion of the Court


text:
Page:Devonshire Characters and Strange Events.djvu/463

Rh themselves of these Destroyers, all in one Night; and as they lived separately, the Thing might easily have been done, had not a Woman, who had been the Wife or Concubine of one of them, run nearly twenty Miles, in three Hours, to discover the Matter to them. Immediately upon the Alarm, they ran together as fast as they could; so that when the Negroes approached them, they found them up in Arms, and retired without making any Attempt. This Escape made them very cautious from that Time."

Thenceforth they fortified their dwellings and converted them into citadels.

"Thus Tyrant-like they lived, fearing and feared by all; and in this situation they were found by Captain Woods Rogers when he went to Madagascar in the Delicia, a ship of forty guns, with a Design of buying Slaves in order to sell them to the Dutch at Batavia or New Holland. He happened to touch upon a part of the Island where no Ship had been seen for seven or eight Years before; here he met with some of the Pyrates, when they had been upon the Island above 25 Years, having a large motly Generation of Children and Grandchildren descended from them, there being, at that Time, eleven of them remaining alive. … Thus he left them as he found them, in a great Deal of dirty State and Royalty, but with fewer Subjects than they had. One of these great Princes had formerly been a Waterman upon the Thames, where having committed a Murder, he fled to the West Indies, and was of the number of those who run away with the Sloops; the rest had been all foremast men, nor was there a Man amongst them, who could either read or write."

Such is Captain Charles Johnson's account. There are several difficulties about accepting his narrative


text:
Stiles v. Davis & Barton

Writ of error to the District Court of the United States for the northern district of Illinois.

Solomon Davis and Joseph Barton brought trover in the Circuit Court of the United States for the northern district of Illinois, against Edmund G. Stiles, for twelve boxes, one trunk, and one bale containing dry goods, of the value of four thousand dollars. On the trial it was proved that Stiles, who was a common carrier, had by his agents, Scofield and Curtis, received the goods in question from Benjamin Cooley, attorney for Davis & Barton, (the plaintiffs,) to be forwarded to Ilion, New York, at two dollars and fifty cents per cwt., subject to the order of the plaintiffs, upon the surrender of the receipt and payment of charges. It appeared on the trial that they purchased the goods, or took an assignment of them, from a bankrupt firm in Janesville, (composed of D. W. C. Davis, who was a son of one plaintiff, and Davies A. Barton, a son of the other,) and made the contract above mentioned with the defendant for carrying them to Ilion, New York, the place of the plaintiff's own residence. The receipt is dated at Janesville, on the 2d of November, 1857. The goods arrived in Chicago on the next day, and were received by the defendant (Stiles) at his proper place of business, whence they were to be despatched by him to the place of their ultimate destination. But before they were forwarded, Andrew Cameron and others, creditors, or claiming to be creditors of the junior Davis and Barton, attached the goods in the hands of Stiles, the transporter. Shortly before this suit was brought, (the precipe is dated on the 16th of November, 1857,) G. W. Davenport, attorney of the plaintiffs, presented the receipt to the defendant, and demanded the goods. The defendant said they had been attached, and declined to give them up until the suit in which the process issued should be decided; the goods, he said, were in his possession in a warehouse or stored; he asserted no personal interest in them, but claimed that he was protected by the garnishee process.

The counsel of the defendant requested the court to instruct the jury: 1. That a common carrier could not be guilty of conversion by a qualified refusal when he claimed no interest in the goods himself, and he had shown reasonable grounds of dispute as to the title. 2. That a qualified refusal by the defendant, after he was garnisheed, he only claiming to hold them to await the decision of the title, when there was reasonable ground of dispute as to the title, was no conversion.

The court refused to give these instructions; but said: 1. That the jury were to determine from the evidence whether there had been a conversion. As a general rule, if the right of property was in the plaintiffs, a demand on the defendant, and a refusal by him to deliver up property in his possession, were circumstances from which the jury might infer a conversion, open, of course, to explanation. 2. That if the plaintiffs were the owners of the goods, and they were delivered by the plaintiffs, or their agent, to the defendants, and received by him or his agents to be transported for the plaintiffs to their residence in New York, then the defendant was liable under and according to the terms of the contract. And if he did not so transport them or comply with his contract, the plaintiffs had the right to call on him to deliver up to them the goods; and if upon such demand he refused, it was for the jury to say whether it constituted, under the circumstances of this case, a conversion. 3. That in the contingency contemplated by the last preceding instruction, if the defendant declined to return or surrender the goods to the plaintiffs, it was to be considered at his own risk or peril. 4. That any proceedings in the State court to which the plaintiffs were not parties, and of which they had no notice, did not bind them or their property. 5. The court left it to the jury to say whether there was any connivance or collusion between the attaching creditors and the defendant; and if there was, then the defendant could not rely upon those proceedings as an excuse for not delivering up the goods. The judge added, that through the attachment was not a bar to the action, the jury might consider that fact as a circumstance in determining whether there was a conversion or not.

The jury found for the plaintiff $3,041.14. The court gave judgment on the verdict, and the defendant sued out this writ of error.

Mr. Dewey, of Illinois, for the plaintiff in error. A demand and refusal to deliver goods are evidence of a conversion, but not per se a conversion. Munger vs. Hess, (28 Barbour, 75;) Chancellor of Oxford's case, (10 Rep., 566;) Mires vs. Soleburg, 2 Mod., 244; Bull, N. P., 34. But to make the detention a conversion, it must appear that it was wrongful. In this case, the attachment of the goods being given as a reason for detaining them, the detention was not wrongful. It must appear that the goods were in possession of the defendant at the time the demand was made, and that he had the power to give them up. Bull, N. P., 44; Vincent vs. Cornell, (13 Pick., 294;) Nixon vs. Jenkins, (2 H. Bl., 135;) Edwards vs. Hooper (11. M. & W., 366, per Parke, B.;) Smith vs. Young, (1 Camp., 441;) Kinder vs. Shaw, (2 Mass., 398;) Chamberlain vs. Shaw, (18 Peck, 278;) Leonard vs. Todd, (2 Met., 6;) Jones vs. Fort, (9 B. & C., 764;) Knapp vs. Winchester, (11 Vermont, 351;) Kelsey vs. Griswold, (6 Barbour, 436;) Verrall vs. Robinson, (2 C. M. & R., 495). When this demand was made the goods had been attached, were in the custody of the law, and the defendant had no right or power to deliver them to any person except the attaching officer. Bedlam vs. Tucker, (1 Peck, 289;) Ludden vs. Leavett, (9 Mass., 104;) Perley vs. Foster, (9 Mass., 112;) Warren vs. Leland, (9 Mass., 265;) Gates vs. Gates, (15 Mass., 310;) Gibbs vs. Chase, (10 Mass., 125;) Odiorne vs. Colley, (2 N. Hamp., 66;) Kennedy vs. Brent, (6 Cranch, 187;) Parker vs. Kinnssman, (8 Mass., 486;) Blaisdell vs. Ladd, (14 N. Hamp., 189;) Burlingame vs. Bell, (16 Mass., 318;) Swett vs. Brown, (5 Pick., 178;) Tillinghast vs. Johnson, (5 Alab., 514;) Thompson vs. Allen, (4 Stew. and Porter, 184;) Bryan vs. Lashley, (13 Smedes & Marshall, 284;) Watkins vs. Field, (6 Arkansas, 391;) Martin vs.Foreman, (18 Ark., 249;) Harker vs. Stevens, (4 McLean, 535;) Drake on Attachments, sections 271, 290, 350, 453; Brashear vs. West, (7 Peters, 608;) Briggs vs. Kouns, (7 Dana, 405;) Erskine vs. Staley, (12 Leigh, 406;) Walcott vs. Keith, (3 Foster, 196;) Brownell vs. Manchester, (1 Pick., 232;) Gordon vs. Jeneny, (16 Mass., 465;) Lathrop vs. Blake, (3 Foster, 46;) Whitney vs. Ladd, (10 Vermont, 165;) Verrall vs. Robinson, (5 Turwhitt's Exch. R., 1069.) In the case last cited the chaise for which trover was brought belonged to the plaintiff, but was attached in the hands of the defendant as the property of a third person, who had hired it from the plaintiff and left it with the defendant for sale. Lord Abinger and Baron Alderson held that the chaise was in the custody of the law, and the defendant's refusal to deliver it to the plaintiff was no evidence of a wrongful conversion.

Mr. Burnet, of Illinois, for defendant in error. This was a conversion. 9 Cush., 148; 1 McCord, 504, 392; 4 Hill, 14; 1 E. D. Smith, 522; 1 Taunt., 391; 4 Esp., 157. Stopping the goods at Chicago was itself a conversion. Angell on Com. Carriers, § 431, 432, 433. The disposing or assuming to dispose of plaintiff's goods is the gist of the action, and it is no answer for defendant that he acted under the instructions of others who had themselves no authority. 6 Wend., 609; 4 Maule & Selw., 259; 6 East., 538; 1 Burr, 20; 2 Strange, 813; Saund., 47, e.; 2 Phill. Ev., 126. The title of the plaintiffs cannot be disputed by the common carrier to whom they were delivered for transportation. Edw. on Bailments, 503, 513, 535, 539. Mere notice to the defendant that a garnishee suit had been commenced did not put the goods into the custody of the law. It was a special proceeding under a statute, and the court had no jurisdiction unless the statute was specially followed. No application, affidavit, or bond is shown, and the proceeding is therefore unauthorized. 19 Johns., 39; 6 Wh., 119; 3 Carnes, 129; 1 Stat. of Ill., 229. Ex parte attachment proceedings must be in strict conformity with the statute. 2 Scam., 15, 17; 12 Ill. R., 358, 363; 22 Ill. R., 455. It is absurd to say that the goods were in the custody of the law before they were attached or levied on.

Mr. Justice NELSON.

title: Stiles v. Davis & Barton


text: Talk:Stiles v. Davis & Barton

title: Talk:Stiles v. Davis & Barton


text:
Stiles v. Davis & Barton/Opinion of the Court

The case was this: The plaintiffs below, Davis and Barton, had purchased the remnants of a store of dry goods of the assignee of a firm at Janesville, Wisconsin, who had failed, and made an assignment for the benefit of their creditors. The goods were packed in boxes, and delivered to the agents of the Union Despatch Company to be conveyed by railroad to Ilion, Herkimer county, New York.

On the arrival of the goods in Chicago, on their way to the place of destination, they were seized by the sheriff, under an attachment issued in behalf of the creditors of the insolvent firm at Janesville, as the property of that firm, and the defendant, one of the proprietors and agent of the Union Despatch Company at Chicago, was summoned as garnishee. The goods were held by the sheriff, under the attachment, until judgment and execution, when they were sold. They were attached, and the defendant summoned on the third of November, 1857; and some days afterwards, and before the commencement of this suit, which was on the sixteenth of the month, the plaintiffs made a demand on the defendant for their goods, which was refused, on the ground he had been summoned as garnishee in the attachment suit.

The court below charged the jury, that any proceedings in the State court to which the plaintiffs were not parties, and of which they had no notice, did not bind them or their property; and further, that the fact of the goods being garnished, as the property of third persons, of itself, under the circumstances of the case, constituted no bar to the action; but said the jury might weigh that fact in determining whether or not there was a conversion.

We think the court below erred. After the seizure of the goods by the sheriff, under the attachment, they were in the custody of the law, and the defendant could not comply with the demand of the plaintiffs without a breach of it, even admitting the goods to have been, at the time, in his actual possession. The case, however, shows that they were in the possession of the sheriff's officer or agent, and continued there until disposed of under the judgment upon the attachment. It is true, that these goods had been delivered to the defendant, as carriers, by the plaintiffs, to be conveyed for them to the place of destination, and were seized under an attachment against third persons; but this circumstance did not impair the legal effect of the seizure or custody of the goods under it, so as to justify the defendant in taking them out of the hands of the sheriff. The right of the sheriff to hold them was a question of law, to be determined by the proper legal proceedings, and not at the will of the defendant, nor that of the plaintiffs. The law on this subject is well settled, as may be seen on a reference to the cases collected in sections 453, 290, 350, of Drake on Attach't, 2d edition.

This precise question was determined in Verrall vs. Robinson, (Turwhitt's Exch. R., 1069; 4 Dowling, 242, S.C..) There the plaintiff was a coach proprietor, and the defendant the owner of a carriage depository in the city of London. One Banks hired a chaise from the plaintiff, and afterwards left it as the defendant's depository. While it remained there, it was attached in an action against Banks; and, on that ground, the defendant refused to deliver it up to the plaintiff on demand, although he admitted it to be his property.

Lord Abinger, C. B., observed, that the defendant's refusal to deliver the chaise to the plaintiff was grounded on its being on his premises, in the custody of the law. That this was no evidence of a wrongful conversion to his own use. After it was attached as Banks's property, it was not in the custody of the defendant, in such a manner as to permit him to deliver it up at all. And Alderson, B., observed: Had the defendant delivered it, as requested, he would have been guilty of a breach of law.

The plaintiffs have mistaken their remedy. They should have brought their action against the officer who seized the goods, or against the plaintiffs in the attachment suit, if the seizure was made under their direction. As to these parties, the process being against third persons, it would have furnished no justification, if the plaintiff could have maintained a title and right to possession in themselves.

Judgment of the court below reversed, and venire de novo, &c.


text: Talk:Stiles v. Davis & Barton/Opinion of the Court


text:
4885 Bags of Linseed

Appeal from the decree of the Circuit Court of the United

States for the district of Massachusetts.

The libel in this case was filed in the District Court by Paul Sears, Reuben Hopkins, James Smith, Alexander Child, William N. Batson, and Rowland H. Crosby, owners of the ship Bold Hunter, against four thousand eight hundred and eighty-five bags of linseed, seven thousand pockets of linseed, and fifteen hundred and thirty bags of pegue cutch. The goods libelled were part of a larger quantity brought to Boston from Calcutta by the Bold Hunter for Augustine Wills, and were at the time in store. The libellants demanded $14,948 57 as freight, less $5,000, which had been paid on account; and for this balance of freight they insisted that their lien had not been waived or impaired by the delivery of the goods under the circumstances.

After warrant and monition were issued, and the goods seized by the marshal in pursuance thereof, Rufus Wills, administrator of Augustine Wills, deceased, came in as claimant, and made answer to the libel, denying that the libellants had any lien on the goods for the freight.

The parties did not dispute about the facts of the case. It appeared by their mutual admissions that the libellants were owners of the Bold Hunter, and, in October, 1856, chartered her to Tuckerman, Townsend & Co. for a voyage from Calcutta to Boston, at $15 per ton on whole packages, and half that rate on loose stowage. The charter party contained the usual lien clause, with a stipulation that the freight should be paid in five and ten days after discharge at Boston, the credit not to impair the ship-owner's lien for freight. On the ship's arrival at Calcutta, the charterers did not furnish an entire cargo, and procured some shipments on freights-among others, one to Augustine Wills-for which the master signed bills of lading, in the usual form, at various rates of freight, all less than the charter rates. These bills of lading were passed over to the libellants by Tuckerman, Townsend & Co. in part settlement of the charter money, and the libellants undertook to collect the freights. The ship arrived at Boston in October, 1857. The larger portion of the goods consigned to Wills were discharged by the consent of all parties, without being landed, into the ship Cyclone, bound to London, and the remainder were delivered to the claimant, who took them to the customhouse stores, and entered them in bond in the name of Augustine Wills. When the Bold Hunter arrived, Augustine Wills, the consignee, was sick, and he died before the goods were all discharged. Rufus Wills, the claimant, acted as his agent before his death, and was his administrator afterwards. The goods were discharged and delivered without qualification, and nothing was said about holding them or any part of them for freight. The claimant, before the death of the consignee, paid $5,000 on the freights, but afterwards declined to pay any more, saying that he did not know how the estate of Augustine Wills would turn out.

The District Court dismissed the libel, and the decree was afterwards affirmed by the Circuit Court. Whereupon the libellant took this appeal to the Supreme Court of the United States.

Mr. C. G. Loring, for the libellants.

1. The ship-owner has a lien on the goods, which is independent of possession, and not necessarily lost by delivery to the debtor. This lien does not imply a right of property, but the privilege of resorting to the thing for payment, in preference to general creditors. The Volunteer, (1 Summ., 551;) Logs of Mahogany, (2 Sumn., 603;) Raymond & Tyson, (17 How., 53;) Valin Com. on Code, art. 24; 2 Boulay Paty Com. on Code, 479; Abbot on Shipping, 127, 284; The Freeman, (18 How., 188;) The Yankee Blade, (19 How., 90;) Dupont de Nemours vs. Vance, (19 How., 171.) Waiver of the lien cannot be inferred from the fact that a portion of the cargo was at the request of the claimant discharged into another vessel to be carried to London. The libellants had a right to resort to that which remained in store at Boston for payment of their freight upon the whole. Abbot on Shipping, 377; Ang. on Car., 360; Soddergreen vs. Flight, (6 East., 422;) Boggs vs. Martin, (1 B. Monr., 239;) Bernal vs. Prin, (1 Gale, 17.) There being a stipulation in the charter party that the credit to be given for the freight should not impair the lien, that instrument does not receive its proper meaning unless the lien follows the goods into the hands of the consignee. It does follow them, subject only to the agreement of the ship-owner that he will not enforce it for a few days.

2. The admiralty jurisdiction is the 'chancery of the seas,' and gives relief wherever a court of equity would do so in a similar case. In equity an agreement for a lien binds the thing and creates a trust as between the parties. Fletcher vs. Morey, (2 Story, 565.) The consignee, if not an immediate party to this contract, (the charter party,) knew of it, claimed the credit under it, and cannot allege that the lien of the libellants was lost by delivery. The lien may be enforced against him without regard to the possession. Collyer vs. Fuller, (1 Turn. & Rup., 469;) Alexander vs. Heriot, (1 Bailey Ch., 223;) Read vs. Hill, (2 Dessau, 552;) Dow vs. Ker, (Spear's Ch. R., 413.)

3. Even if this case be adjudged by the rules of the common law, it is with the libellants, for the courts of common law will give effect to the intentions of the parties. Small vs. Moates (9 Bing., 574;) Wilson vs. Kymer, (1 Maule & Selwyn, 167;) Bigelow vs. Heaton, (6 Hill, 43;) S.C.., 4 Denio, 496; Dodsley vs. Varley, (12 Ad. & Ell., 632;) Hussey vs. Thornton, (4 Mass., 405.)

Mr. S. W. Bates, of Massachusetts, (with whom were Messrs. Story and May,) for the claimant, contended that the lien for freight was lost by the delivery; that the libellants stand upon the same footing with other creditors, and are left to their remedy in personam.

1. The carrier's lien for freight is a right to hold, not a right to take. It begins with, rests upon, and ends with, the possession. Delivery has always been held a waiver, or rather an abandonment, of the right.

2. Augustine Wills, whom the claimant represents, was no party to the agreement made by Tuckerman & Co. with the ship-owners. He could have known nothing about it. He did not know upon what vessel the goods were shipped until they arrived at Boston. A sub-freighter or consignee is not bound by the charter party, his bill of lading not referring to it. Abbot on Shipping, 6th ed., 287-8; Paul vs. Birch, (2 Atk., 621;) Mitchell vs. Scaife, (2 Camp., 298;) Faith vs. ''E. Ind. Co., (4 B. & A., 630;) Shepard vs. De Bernales'', (13 East., 570.)

3. The libellants say that the maritime law is derived from the civil law, and the civil law gave a privilege to carriers which did not depend upon possession, and was not lost by alienation. This confounds the common law lien of carriers with the carriers' privilegium under the civil law. They are different things. The privilege of the civil law did not depend upon possession, because the carrier had no right to retain possession. It was a mere preference over other creditors. But by the common law the carrier may keep the goods until the freight is paid; so he may by the maritime law; and under both systems, for the same reason, his lien is gone when he parts with the goods. Parker vs. Hill, (2 Wood & Minot, 106;) Raymond vs. Tyson, (17 How., 53;) Parson's Merc. Law, 345. Some maritime liens are like the privilegium of the civil law; for instance, a lien for supplies or materials which may be enforced by one who never was in possession. Van Bokelyn vs. Ingersoll, (5 Wend., 315.) But not so of liens like this.

Mr. Chief Justice TANEY.

title: 4885 Bags of Linseed


text: Talk:4885 Bags of Linseed

title: Talk:4885 Bags of Linseed


text:
4885 Bags of Linseed/Opinion of the Court

The rights of the parties in this case depend altogether on the contract created by the bill of lading. That instrument does not refer to the charter party, nor can the charter party influence in any degree the decision of the question before us. Augustine Wills was not a party to it, and it is not material to inquire whether he did or did not know of its existence and contents; for there is nothing in it to prevent Wills & Co., the sub-charterers, or Augustine Wills, the consignee, from entering into the separate and distinct contract stated in the bill of lading, and the assignees took the rights of Wills & Co. in this contract, and nothing more. The circumstance that it came to hands of the ship-owners by assignment from the sub-charterers, who knew and were bound by all the stipulations of the charter party, cannot alter the construction of the bill of lading, nor affect the rights or obligations of Augustine Wills.

Undoubtedly the ship-owner has a right to retain the goods until the freight is paid, and has, therefore, a lien upon them for the amount; and, as contracts of affreightment are regarded by the courts of the United States as maritime contracts, over which the courts of admiralty have jurisdiction, the ship-owner may enforce his lien by a proceeding in rem in the proper court. But this lien is not in the nature of a hypothecation, which will remain a charge upon the goods after the ship-owner has parted from the possession, but is analogous to the lien given by the common law to the carrier on land, who is not bound to deliver them to the party until his fare is paid; and if he delivers them, the incumbrances of the lien does not follow them in the hands of the owner or consignee. It is nothing more than the right to withhold the goods, and is inseparably associated with his possession, and dependent upon it.

The lien of the carrier by water for his freight, under the ordinary bill of lading, although it is maritime, yet it stands upon the same ground with the carrier by land, and arises from his right to retain the possession until the freight is paid, and is lost by an unconditional delivery to the consignee. It is suggested in the argument for the appellant, that, as a general rule, maritime liens do not depend on possession of the thing upon which the lien exists; but this proposition cannot be maintained in the courts of admiralty of the United States. And, whatever may be the doctrine in the courts on the continent of Europe, where the civil law is established, it has been decided in this court that the maritime lien for a general average in a case of jettison, and the lien for freight, depend upon the possession of the goods, and arise from the right to retain them until the amount of the lien is paid. Rae vs. Cutler, (7 How., 729;) Dupont de Nemours & Co. vs. Vance and others, (19 How., 171.)

In the last mentioned case, the court, speaking of the lien for general average, and referring to the decision of Rae vs. Cutler on that point, said: 'This admits the existence of a lien arising out of the admiralty law, but puts it on the same footing as a maritime lien on cargo for the price of its transportation, which, as is well known, is waived by an authorized delivery without insisting on payment.'

After these two decisions, both of which were made upon much deliberation, the law upon this subject must be regarded as settled in the courts of the United States, and it is unnecessary to examine the various authorities which have been cited in the argument. But it may be proper to say, that while this court has never regarded its admiralty authority as restricted to the subjects over which the English courts of admiralty exercised jurisdiction at the time our Constitution was adopted, yet it has never claimed the full extent of admiralty power which belongs to the courts organized under, and governed altogether by, the principles of the civil law.

But courts of admiralty, when carrying into execution maritime contracts and liens, are not governed by the strict and technical rules of the common law, and deal with them upon equitable principles, and with reference to the usages and necessities of trade. And it often happens that the necessities and usages of trade require that the cargo should pass into the hands of the consignee before he pays the freight. It is the interest of the ship-owner that his vessel should discharge her cargo as speedily as possible after her arrival at the port of delivery. And it would be a serious sacrifice of his interests if the ship was compelled, in order to preserve the lien, to remain day after day with her cargo on board, waiting until the consignee found it convenient to pay the freight, or until the lien could be enforced in a court of admiralty. The consignee, too, in many instances, might desire to see the cargo unladen before he paid the freight, in order to ascertain whether all of the goods mentioned in the bill of lading were on board, and not damaged by the fault of the ship. It is his duty, and not that of the ship-owner, to provide a suitable and safe place on shore in which they may be stored; and several days are often consumed in unloading and storing the cargo of a large merchant vessel. And if the cargo cannot be unladen and placed in the warehouse of the consignee, without waiving the lien, it would seriously embarrass the ordinary operations and convenience of commerce, both as to the ship-owner and the merchant.

It is true, that such a delivery, without any condition or qualification annexed, would be a waiver of the lien; because, as we have already said, the lien is but an incident to the possession, with the right to retain. But in cases of the kind above mentioned it is frequently, perhaps more usually, understood between the parties, that transferring the goods from the ship to the warehouse shall not be regarded as a waiver of the lien, and that the ship-owner reserves the right to proceed in rem to enforce it, if the freight is not paid. And if it appears by the evidence that such an understanding did exist between the parties, before or at the time the cargo was placed in the hands of the consignee, or if such an understanding is plainly to be inferred from the established local usage of the port, a court of admiralty will regard the transaction as a deposit of the goods, for the time, in the warehouse, and not as an absolute delivery; and, on that ground, will consider the ship-owner as still constructively in possession, so far as to preserve his lien and his remedy in rem.

But in the case before us, there is nothing from which such an inference can be drawn. The goods were delivered, it is admitted, generally, and without any condition or qualification. Upon such a delivery there could be neither actual nor constructive possession remaining in the ship-owner; and, consequently, there could be no right of retainer to support his lien.

The decree of the Circuit Court, dismissing the libel, must therefore be affirmed.

Decree affirmed.


text: Talk:4885 Bags of Linseed/Opinion of the Court


text:
Hogg v. Ruffner

Cross-appeal, from the decree of the District Court of the United States for the district of Indiana.

Nathaniel B. Hogg brought his bill in the Circuit Court against Benjamin Ruffner and several other defendants, who were collaterally interested. The bill avers that Ruffner made his nineteen promissory notes, for two thousand dollars each, amounting in all to thirty-eight thousand dollars, payable to the order of John W. Brice and James L. Birkey, with interest from their date, and that these notes were delivered to Brice and Birkey; that in order to secure the payment of the notes, Ruffner executed three mortgages to Brice and Birkey, and that some of the notes and so much of the mortgages as secured them were assigned to the plaintiff. The bill prays for a decree against the defendant that he pay the sum due upon the notes, and in default thereof that the mortgaged premises be sold. The notes were to become due as follows: two on January 1, 1856, and two on the 1st of April in each of the years 1857, 1858, 1859, 1860, 1861, 1862, 1863, 1864, 1865.

The answer of Ruffner is, that the notes and mortgages were given on a contract usurious and corrupt. He was in debt (as he asserts) in the sum of twenty thousand dollars to Brice and Birkey, who took these nineteen notes for two thousand dollars each, with interest, payable as stated in the bill; that he, the defendant, gave the notes and mortgages solely for the debt of twenty thousand dollars, and being much embarrassed and pressed for money, and seeing no other means to prevent the sacrifice of his property by an oppressive and inexorable creditor, agreed to the corrupt and usurious contract, and gave his notes for the extra sum of eighteen thousand dollars for the forbearance of the twenty thousand which were due.

The true character of the contract as proved in the Circuit Court will be found stated in the opinion of Mr. Justice Grier

title: Hogg v. Ruffner


text: Talk:Hogg v. Ruffner

title: Talk:Hogg v. Ruffner


text:
Hogg v. Ruffner/Opinion of the Court

The Circuit Court held the notes which were due and to become due in the years 1861, 1862, 1863, 1864, and 1865, and which were given for the eighteen thousand dollars, to be usurious and void, and the remainder of the notes valid, as covering only the debt justly owing to the parties by whom they were taken. The court accordingly decreed payment of the notes which were already due, with interest and costs. From this decree both parties appealed.

Mr. Stanton and Mr. Phillips, of Washington city, for the defendant, contended that the decree of the Circuit Court was erroneous, because: 1st, it includes interest and costs; and, 2d, instead of taking the usury pro rata from all the notes, it takes the whole from the last of the series. The law of Indiana governs the case. The statute of that State provides that six per cent. shall be the legal interest, and if more is taken the contract shall not therefore be void; but if in an action on such contract it is proved to be usurious, the defendant shall recover costs, and the plaintiff shall recover only his principal, without interest. 1 Rev. Stat. of Ind., 343. If the last notes were usurious, it is difficult to see how the first could be free from the taint. It would seem upon principle that each note of the series must be infected with its share of the poison, and so are all the authorities. Parson on Cont., 390; Merritts vs. Law, (9 Cowan, 65;) Hammond vs. Howard, (13 Johns.;) Willard vs. Reeder, (2 McCord, 369;) Lacomic Bank vs. Johnson, (31 Maine, 414.)

Mr. Hunter, of Ohio, for the complainant, insisted that the decree of the court awarding interest and costs to the complainant was not erroneous, even on the assumption that the contract was usurious. It is not affected by the statute of Indiana, for it is not alleged in the answer that the contract was made in that State, and by the common law a negotiable note in the hands of a bona fide holders, cannot be avoided for usury. Ang. & Ames on Corp., § 262; Seneca Co. Bank vs. Nafs, (5 Den., 330;) White vs. How, (3 M. L., 291.) The rule in England under the statute 12 Anne, c. 16, which declares all usurious securities to be void, is, that a note given on a usurious contract for the forbearance of a pre-existing debt is void, but the debt is not extinguished. Cro. Eliz., 20; 3 Campb., 119; 10 B. & C., 679. A fortiori such must be the rule in Indiana, where the statute expressly provides that the usurious contract itself shall not be void.

But it is utterly denied that any usurious contract was made between the parties, or that the written agreement referred to in the answer was a device to conceal usury. While the defendant has no claim to a reversal of the decree for such reasons as he has given, the plaintiff, who also appeals, has a right to complain and does complain of the error which the court below committed in pronouncing a part of the notes to be void. There is no taint of usury about the contract on which they were made. The written contract repels every such presumption, and so does the other evidence in the cause.

Mr. Justice GRIER.

If the exception taken to the decree of the court below by the complainant be sustained, it will be unnecessary to notice those taken by the respondents.

Was the contract of Brice and Birkey with Ruffner, which shows the consideration of the mortgage and notes assigned to the complainants, usurious?

The statute of Indiana declares, that 'the rate of interest upon the loan or for the forbearance of any money, &c., shall be at the rate of six' per cent.; but 'if a greater rate of interest shall be contracted for, received, or reserved, the contract shall not, therefore, be void;' 'the plaintiff shall recover only his principal, without interest,' and the 'defendant shall recover costs.'

To constitute usury, there must either be a loan and a taking of usurious interest, or the taking of more than legal interest for the forbearance of a debt or sum of money due. This statute does not profess to enlarge the common law definition of the term, while it aims to include the common devices resorted to by usurers to evade its penalties.

The original contract by which a debt is created may be for the purchase and sale of land, and it will be, nevertheless, contrary to the statute for the vendor to demand or receive more than legal interest for the forbearance of such debt, as in the case of Crawford vs. Johnson, (11 Indiana Reports, 258,) where separate notes were taken for two per cent. interest, in addition to the legal interest, on the sum due for the purchase money of land.

But it is manifest that if A propose to sell to B a tract of land for $10,000 in cash, or for $20,000 payable in ten annual instalments, and if B prefers to pay the larger sum to gain time, the contract cannot be called usurious. A vendor may prefer $100 in hand to double the sum in expectancy, and a purchaser may prefer the greater price with the longer credit, and one who will not distinguish between things that differ, may say, with apparent truth, that B pays a hundred per cent. for forbearance, and may assert that such a contract is usurious, but whatever truth there may be in the premises, the conclusion is manifestly erroneous. Such a contract has none of the characteristics of usury; it is not for the loan of money, or forbearance of a debt.

Does this case come within this category? We are of opinion that it does.

The mortgage and notes in question were given in execution of a contract between the parties, dated the 20th of April, 1855. This contract is in writing, and signed by the parties. It would be tedious and unprofitable to enumerate its various covenants; but the chief subject of it is a sale of land by Brice and Birkey to Ruffner for the sum of $38,000, in ten annual instalments, the sale to include, also, certain personal property. There is no proof that the recitals of this contract are untrue, or that the consideration of the notes and mortgage in question was other than is there stated. These parties had formed a partnership in February, 1854, 'for dealing in land, farming,' &c., &c. Brice and Birkey advanced money, and had each an interest of one-third in the lands whose title was in the name of Ruffner. In October of the same year this partnership was dissolved, and Ruffner afterwards agreed to pay certain sums of money to the other parties for a release of their interest in the land, and gave them his obligations. Afterwards, in February, 1855, in order to extinguish these obligations, which he was unable to meet, he agreed to reconvey to Brice and Birkey certain tracts of the land. In the spring of 1855 they made arrangements to take possession of these lands, with their tenants, stock, farming utensils, &c., &c. Ruffner then refused to let them have possession. Finding they could not obtain possession without great and ruinous delay, a proposition was made to sell or release all their interest in the lands of the firm, if Ruffner would pay in cash the amount of money advanced by them. After some negotiations and calculations, this amount was ascertained to be about twenty thousand dollars. They professed a willingness to receive this amount, if paid in cash, or security given that it should be actually paid in six months. A conditional deed was proposed, by which the title was to become absolute in case payment was not made on the day. But counsel advised that this would be construed a mortgage, in whatever form of words it might be drawn. Ruffner being unable to furnish such security as was required, this agreement was not signed or executed. Proposals were then made to purchase for a larger consideration, to include the farming stock, &c., owned by Brice and Birkey, on a credit running ten years. On these terms they demanded forty thousand dollars, and Ruffner offered thirty-six thousand, and finally the amount of thirty-eight thousand was agreed upon, as set forth in the contract referred to.

Now the hearsay testimony of witnesses, who relate what they understood from conversations with the parties, or may have misunderstood to be the contract between them, and their inference, because the parties had a 'settlement,' that therefore the first terms proposed, but not accepted, amounted to the ascertainment of a debt due, cannot be received to contradict the written contract of the parties and the testimony of witnesses cognizant of the whole antecedent history of the transaction. Nor is there any irreconcilable discrepancy between their impressions or 'understandings,' and the written agreements and other testimony. They construed the settlement of the difficulties, which had long existed between the parties, to mean a balance of accounts of money due from one party to the other, and consequently inferred that the increased amount of the securities was for usurious interest for the forbearance of its payment. This was but the usual error of arriving at a false conclusion by the use of equivocal or ambiguous terms.

The decree of the court below is, therefore, erroneous, in so far as it is affected by the assumption that the contract was usurious.

Decree of the Circuit Court reversed, and record remitted, with directions to proceed in conformity to the opinion of this court.

title: Hogg v. Ruffner/Opinion of the Court


text: Talk:Hogg v. Ruffner/Opinion of the Court


text:
Barque Island City

This was a libel for salvage by H. B. Cromwell and others, owners of the steamer Westernport, against the barque Island City. The libel was filed in the District Court of the United States for Massachusetts, and was removed into the Circuit Court on the certificate of the district judge that he was interested.

In January, 1857, the Island City, on her voyage from Galveston to Boston, made Cape Cod in a snow-storm. The master finding he could not get by the cape, anchored in Vineyard Sound; but finding his ground tackle would not hold, he cut away the masts, and brought up near the Horseshoe. The schooner Kensington went out from Hyannis to her assistance, but, after every effort, was not able to get her into port. The Kensington towed her some distance, but finally left her anchored in four and a half fathoms of water, with a hundred fathoms of chain out, dismasted, and without a rudder. The owners of the Island City being informed of her situation, requested the master of the steamer R. B. Forbes to go to her aid. He did so, and found her where the Kensington had left her, and in the helpless condition mentioned. The steamer took the barque in tow on Saturday, the 24th of January, with the intention of carrying her into Boston. The severity of the weather and the floating ice made this a work of great labor, hardship, and peril. On Monday, the steamer's coal being found insufficient, she took off the crew of the barque, left her at anchor off Great Point, Nantucket Island, without any person on board, and went to Provincetown for a supply of coal. Several accidents delayed the steamer in getting the necessary quantity and quality of coal, and it was not until the Saturday afterwards that she was able to return to the place where she had left the Island City at anchor. She was not there. The steamer Westernport had discovered her the day before the return of the Forbes, got up her anchor, took her in tow, and brought her into Hyannis, where she was followed by the Forbes and brought to Boston.

While the Island City was in possession of the Westernport the officers and crew of the latter vessel broke open the chests of the master and seamen of the barque, robbed them of their clothes, watches, and money, carried away the quadrant and barometers of the ship, rifled trunks on freight; and this pillage was committed extensively and upon a plan of general plunder, by the mate and many of the seamen, without opposition from any of them. When complaint was made, some of the articles taken were restored to their owners, but a considerable portion of the money and clothing was never returned.

The owners of the schooner Kensington, of the steamer R. B. Forbes, and of the steamer Westernport, all filed libels against the Island City for salvage, and the three cases were heard together.

Mr. Justice Clifford, in the Circuit Court, gave his opinion at length, and decreed that the whole amount of all the salvage services rendered by all the libellants in the three cases was $13,000, of which $3,300 were rendered by the Kensington, $5,200 by the Forbes, and $4,500 by the Westernport. One-third of the last mentioned sum was decreed to the owners of the Westernport, but the other two-thirds, (viz: $3,000,) to which the master, officers, and crew of the Westernport would otherwise have been entitled, were adjudged to be forfeited to the owners of the Island City, by reason of the misconduct of the said master, officers, and crew of the Westernport, and, so far as they were concerned, the libel was dismissed. From this decree the owners of the Westernport took the present appeal. the other parties submitted to the decree of the Circuit Court.

Mr. Dana, of Massachusetts, for libellants. There must be three elements in every case of salvage: 1st, a marine peril; 2d, voluntary service upon contingent compensation; 3d, full and entire success.

The services rendered by the crew of the Kensington had the two first of these elements, but wanted the last. They failed of success; they left the barque from necessity, and abandoned her to her chances, instead of taking her to a place of safety where she could have been delivered to her owners. The service being short of entire success, the merit of it is immaterial. The court will not inquire whether the ultimate safety of the vessel was made more or less probable by the service rendered, nor speculate upon the comparative degrees of her peril in the places where she was found and where she was left. It must be a case of salvage, or it is nothing.

The Forbes makes a claim for nothing but contract services, to be paid on a quantum meruit. Her case, therefore, has not in it the necessary ingredient of voluntary service upon contingent compensation. She was engaged by the owners of the barque, was in their service, and subject to their order. Her employment was liable to be terminated at the pleasure of the owners of the barque. She could not, like a salvor, insist upon retaining possession. No question can arise between the Forbes and the real salvors. If the Forbes is entitled to compensation for contract services, it is independent of, and subject to salvage. After all the salvage awards are given, her claim may be heard.

Of all the three vessels that went to the aid of the Island City, the Westernport was the only one whose service was salvage in its nature. It had all the elements of salvage; for, 1st, the Island City was in peril; 2d, the service of the Westernport was voluntary; and, 3d, it was completely successful.

At the time when the Island City was taken possession of by the Westernport the latter vessel was not in the possession, actual or constructive, of her own crew, or of any salvor. She was derelict in the true sense of the law of salvage. She lay in an open sea, held by an insufficient anchor, surrounded by shoals, dismasted, without a rudder, and with no one on board. She was deserted, abandoned, forsaken. In our law, the word derelict has not the intense signification which it bore in the civil law. It does not mean that the owner has renounced title, but merely that the thing has been deserted, though it may be with the hope of returning. The test is not the hope but the power of resuming possession. In the case of a derelict vessel the title remains in the owner, with a temporary right of occupancy for salvage in the finder. It is doubtful if the crew of this vessel could have been compelled to return. Their ability to do so certainly depended on the weather, and every circumstance that increased the peril of the barque made their return less probable. The Amethyst, (Davies, 21;) The John Gilpin, (Olcott, 78;) The John Wurtz, (Olcott, 470;) Rowe vs. _____ Brig, (1 Mason, 373;) Swabez's Adm., Rep. 205.

The rule in cases like this is to give one-half for salvage, making an equitable division between owner and salvor; The John Wurtz, (Olcott, 470;) and though it be true that the rule is artificial and flexible, yet it is a rule, and must be adhered to, unless reasons be shown for departing from it. The Henry Ewbank, (1 Sumner, 411.) The rule of giving one-half to the salvors was followed in the cases of Rowe vs. _____ Brig, (1 Mason, 373;) The Henry Ewbank, (1 Sumner, 400;) The Boston, (1 Sumner, 328;) Sprague vs. Barrels Flour, (2 Story, 195;) The Galaxy, (1 Bl. & Howl., 270;) John Wurtz, (Olcott, 460;) L'Esperence, (1 Dods., 64;) The Frances Mary, (2 Hagg., 89;) The Elliotta, (2 Dods., 75;) The Reliance, (2 Hagg., 90;) The Eugene, (3 Hagg., 156;) The Effort, (3 Hagg., 153;) Zwei Gebroder, (3 Hagg., 430;) The Galt, (2 W. R., 70;) The Nicolina, (2 W. R., 175;) The Britannia, (3 Hagg., 153.) And where one-half is given, the expenses of the salvors are sometimes taken out of the other half. The Frances Mary, (2 Hagg., 90;) The Reliance, (ib. in note.) In some cases one-third is given, and in some more than one-half, as in The Waterloo, (1 Bl. & H., 128;) The Cora, (4 Wash., 80;) The Charles, (Newb., 329;) The Thetis, (2 Knapp, Pr. C., 410;) The Yonge Bastiaan, (5 Rob., 287;) The Jubilee, (3 Hagg., 43;) The Rising Sun, (Ware, 385.) In England, the rule not to exceed one-half is not applied to cases of derelicts. The Inca, (Swabez's Adm. Rep., 371.) In this case all the circumstances combine to make the resort to a high rule of salvage proper and just. The reasons for giving a liberal allowance are well stated in the cases of ''The Nath. Hooper, (3 Sumner, 579;) The Boston, (1 Sumner, 323;) The Hy. Ewbank, (1 Sumner, 424-5-6, 429;) The Missouri's Cargo, (Sprague's Dec., 268-71;) The John Gilpin, (Olcott, 88;) The Spirit of the Age, (Swabez's Ad. R., 286;) Barrels of Oil'', (Sprague's Dec., 93.)

As to the alleged misconduct of the salvors, the articles of clothing which were taken from the Island City by the men of the Westernport were taken and used to protect them against the severity of the weather, and the other articles were taken on board the Westernport for safe keeping. The men intended to return, and did return, the articles taken; and if any articles were not returned, it was by accident or negligence. There was no intention of any one belonging on board the Westernport to steal or embezzle any article.

Mr. Curtis, of Massachusetts, for claimants. The vessel was not derelict, because the crew left her to obtain coal and provisions, and with intent to return. The Aguila, (1 C. Rob., 37;) Taylor vs. Pryor, (1 Gal. R., 133;) The Emulous, (1 Sum., 209;) The Bee, (Ware's R., 345;) The Dodge, (Healey, 4 Wash., 651.) The entitle a party to salvage, not only must the service rendered be meritorious, but the possession taken must be lawful. The Amelia, (1 Cranch, 1;) The Dodge, (Healey, 4 Wash., 651;) The Barefoot, (1 Law and Eq., 661.) The jus disponendi which belongs to the owner is not interfered with by any principle of admiralty law; and if a vessel be found, though with no one on board, under such circumstances that the defenders knew, or ought to have known, their services were not desired, and they take possession, with intent to supplant the master and owners in giving her relief, they have no claim for compensation. The Upnor, (2 Hag., 3;) The Barefoot, (1 Law and Eq., 661;) The India, (1 W. Rob., 408;) The Amethyst, (Davies' R., 23.) The court is always jealous to maintain the rights of those who have begun a salvage enterprise, and are prosecuting it in good faith. New comers are not allowed to interpose and disposses them for covetous and selfish ends. They must prove an absolute necessity for such interposition. The Charlotte, (2 Hag., 361;) The Eugene Bourne, (3 Hag., 160;) The Effort, (3 Hag., 167-8;) The Glasgow Packet, (2 W. Rob., 306.)

But whatever salvage, if any, may have been earned by the master, officers, and crew of the Westernport was forfeited by embezzlement and by gross negligence in the custody and care of the property which came into their possession. The law is clear, that any embezzlement works a forfeiture. The Blaireau, (2 Cranch, 240;) The Boston, (1 Sum., 339;) The Rising Sun, (Ware's R., 379.) Not only so, but the law demands of salvors what Judge Story terms 'incorruptible vigilance,' (1 Sum., 341-2;) and gross negligence, still more wilful earelessness, is cause of forfeiture. The Duke of Manchester, (2 W. Rob., 56, 471;) The Barefoot, (1 Law and Eq., 661;) The Cape Packet, (3 W. Rob., 122;) The Glory, (2 Law and Eq., 551.) Actual embezzlement of the most cruel kind, robbery of shipwrecked mariners, and extensive plunder of their effects, are clearly proved.

There was one complete salvage service performed by the successive efforts of the three vessels, and the Circuit Court properly allowed but one salvage compensation. That compensation ($13,000) was large and liberal. The distribution of it was discretionary, and should not be changed on appeal, unless it manifestly appears that some important error has been committed. The Sybil, (4 Wh., 98;) Hobart vs. Drogan, (10 Pet., 108.)

There is no error in the distribution of the amount allowed the Westernport. The same proportion (one-third) was allowed in the Blaireau, (2 Cranch, 240,) to the salving vessel and cargo; and that proportion has been adopted in many other cases. Mr. Justice Story says, in the case of the ship Henry Ewbank and cargo, (1 Sum., 426,) that one-third is the proportion habitually adopted, and to induce a departure from it very peculiar and pressing circumstances must be shown; and he refers to many cases in support of his position. In this case there are no such peculiar or pressing circumstances.

Mr. Justice GRIER.

title: Barque Island City


text: Talk:Barque Island City

title: Talk:Barque Island City