eRAWFORD V. MELLOR.
then filed to recover from respondents $39 damages for the detention of the vessel. John A. Toomey, for libellants. The delivery of the bill of lading to respondents' agents was a delivery of the cargo, and created a privity between these parties. The Schooner Mary Ann Guest, Olcott, 498; Griffiths v.Ingledew, 6 S. & R. 429; Conrad v. Ins. Co. 1 Pet. 446; King v. Meredith, 2 Camp. 639. Where the consignee is owner of the cargo he is liable for the detention in unloading. R. Co. v. Northam, 2 Benedict, 1 j Robbins v. Welsh, 9 Phila. R. 409. James S. Williams, for respondents. The consignees had no interest in this cargo until it came "along-side" the wharf. The delivery of the bill of lading to the respondents' agents, who were authorized merely to "unload, store and deliver" the coal, could in no way affect their rights under the contract of purchase. Even if the consignees were the owners of the cargo they are not liable here, because they were not the freighters. Sprague v. West, 1 Abb. Adm. Rep. 548; Donaldson v. McDowell, 1 Holmes, 290; Jesson v. Solley, 4 Taunt. 52. Further, they are not liable, because the detention was merely owing to the crowded state of the dock, and in no manner their fault. Clendaniel v. Tuckerman, 17 Barb. 191; Cross v. Beard, 26 N. Y. 85 j Trans. Co. v. Hawley, 1 Daly, 333 j Rodger8 v. Forre8ter, 2 Camp. 483 j Dobson v. Droop, 1 Moody & Malkin, 443. BUTLER, J. From the time the bill of lading was received by the respondents' agent, at least, they were owners of the coal. They could, thereafter, have transferred it to whom they pleased, and if the libellants had carried it away they could have sustained an action for its value. It was kept near the wharf in pursuance of their order, and they are justly responsible for the use of the vessel during the time it was thus detained. If not satisfied to be so responsible they should have designated another place, when this was found to be occupied. The difficulty respecting privity between the parties, dis-
appears when the ownership of the coal is traced to the respondents. The law implies a contract from the relations of the parties growing out of the transaction. Robbins v. Welsh, 9 Phila. R. 409; Griffiths v. Ingledew, 6 S. & R. 429; R. Co. v. Northhnm, 2 Benedict's R. 1. The case is l'eadily distinguishable from an ordinary claim for demurrage where the obligation of the vessel is to carry to a. particular port, leaving to it the selection of a place to unload. A decree must be entered for the libellants.
(Circuit Court, E. D. ltfis8ouri. February 5, 1880.) PATENT-INFRINGEMENT-DAMAGEs-EvIDENcE.-A rescinded contract in relation to the payment of royalty for the use of a patent is not competent evidence in determining the measure of damages for the infringement of the same.
Exceptions of complainant to report of master as to assessment of damages. Sprague tt Hunt, for complainant. Samuel S. Boyd, for respondent. TREAT, J., (orally.) Complainant relied for the measure of damages upon a rescinded contract, wherein the respondent agreed that if all or any of the several patents named therein were used by the respondent, one dollar royalty for each stove manufactured should be paid. There was no other evidence offered before the master. Now, as said contract had no longer existence, and the court held that but two of the several patents were infringed, it became necessary to ascertain, in some intelligent manner, the damages sustained by the complainant for the use thereof. No evidence on that subject was offered, and thereupon the master reported nominal damages. The contention is that he should have gone back to the rescinded contract, and applied the terms thereof to the condition of affairs after such contract ceased to be obligatory. The court holds otherwise. The exceptions are overruled, the report confirmed, and costs divided as heretofore ordered.
EMHMANT INDUSTRIAL SAVINGS BANK.
THE EMIGRA"ST INDUSTRIAL SA.VINGS BANK.
lOW-cui' Oourt, S.
April 1, 1880.)
PAYMENT TO ADMINISTRATOR-LETTERS ISSUED DURING ABSENCE OF FROM STATE-" DUE PROCESS OF LAW" -ESTOPPEL. Payment to a foreign administrator upon the presentation of ancillary letters duly issued by a surrogate upon the proof of the original let. ters issued under a statute of the foreign state, providing that" if any person shall be absent from this state for the term of three years, without due proof of his being alive, administration may be granted upon such person's estate as if he 'were dead." will not avail as a defen:. SO the subsequent demand of the creditor.
E. D. McOarthy, for plaintiff. J. E. Devlin, for defendant. CHOATE, J. In this case a jury trial has been waived. The plaintiff, an a.ljen, sues to recover the sum of $400 by him with the defendant, an' incorporated savings bank doing business in New York city, with the accumulated interest. The answer admits the deposit by one John Lavin of $300 on the eighteenth day of July, 1865, and of $100 on the thirteenth day of January, 1866. It sets up as -a. defence that on the fourteenth day of February, 1877, one John M. Brennan made application to the surrogate of the city and county of New York for letters of administration upon the estate of the said John Lavin, and that th"reupon the said surrogate decided upon such application thtlt the said John Lavin was deceased and had died intestatf', leaving assets within said city a,· j county, and therenpon appointed John M. Brennan administrator, and issued to the said John M. Brennan letters of adminiiltfati<Jn of the goods, etc., whereof the said Lavin died possessed in the state of New York; that thereafter, and while said decision of the surrogate was in full force and unreversed, said Brennan presented his said letters to the defendant and demanded, as administrat('l' of John Lavin, the said amount deposited, with accrued and the defendant thereupon paid the same to him. , The answer denies that it was the plaintiff who made thesi deposits, but his identity was fully established by the en 1'.1,no.9-41