THE Z. L. ADAMS.
that collision was imminent. She was justified in expecting the bark to go under her stern. She had no reason to expect that this vessel would cease paying off; that she would come so close as to lose the benefit of the wind, and drift with the tide. When she discovered the danger, there was no time to avoid it. A failure to do the right thing under such circumstances is not a fault. It does not appear, however, that anything could have been done to avoid the result.
(District GOUT', S. D. New York. November, 1883.)
DISCHARGE OF CARGO-BILL OF LADING-USAGE OF TRADE-DEMURRAGE.
according to the custom of the trade; and for failure to exercise such diligence, demurrage is recoverable.
SAME-UPON THE FACTS ONE DAY'S DEMURRAGE ALLOWED.
of a consignee Is to use due diligence In procuring a berth, and to discharge,
When a bill of lading fixes no time for the discharge of the cargo, the duty
The schooner Z. L. Adams arrived in New York, June 28th or 29th; and the respondents, to whom the cargo was sold, "to arrive, " knowing that the facilities of their private pier were inadequate. began, on Ju y 1st, to make inquiries for a suitable place of discharge. The inquiries were continued ovel the 2d and 3d, when a berth was found. Sunday and July 4th intervened. The vessel arrived at her berth on the 6th, and finished unloading on the 10th. The evidence showed four days to be a reasonable period for the discharge. Held, the respondents were chargeable with one day's demurrage,-June 80th, -as they showed no reason for deferring their inquiries for another berth until July 1st.
In Admiralty. Beebe, Wilcox it Hobbes, for libelants. Geo. A. Black, (Scudder & Garter,) for respondents. BROWN, J. This action was brought to recover damages in the nat. ure uf demurrage for delay in unloading the schooner Z. L. Adams, which arrived with a cargo of 360 tons of ice, consigned to I!'. H. Smith, on June 28 or 29, 1880. Prior to arrival, the ice had been twice sold, to arrive, and was received by Montgomery & Co., thG second vendees. As the bill of lading fixed no period for the discharge of the cargo, the only obligation of the consignee, or his vendee, was to use due diligence in procuring a berth and to discharge, according to the custom of the trade. The usage in respect to the discharge of ice, as a very perishable cargo, is no doubt somewhat peculiar. By the necessities of the cal:l& it must be discharged either into carts for immediate distribution at retail, as seems by the evidence to be most usual with vessels arriv. ing in the summer season,. or else sold to the wholesale dealers for
'itorage. The respondents were not the consignees of this ice. and I am not prepared to hold that any vendee of a consignee of cargo may keep a vessel awaiting her turn to discharge, after many prior vessels, at his own wharf, where, as in this case, he has no facilities for discharging more than one vessel at a time. See Henley v. Brooklyn lee Co., 8 Ben. 471; S. C. 14 Blatchf. 522. It is not necessary, however, to consider that point; because one of the respondents testified that "he found it was going to take too long" to discharge this vessel at his wharf, and he therefore set about finding another place of discharge, either among the wholesale or the retail dealers. He says he began to inquire July 1st, and followed it up till July 3d, when he found a berth at Pier 52, and gave notice at Smith's, the evident head-quarters of communication with the libelant. As July 4th and Sunday intervened, the vessel did not arrive at her berth until July 6th. She Wfl8 discharged on the 10th. For the discharge of ice and the dunnage about four days appear to be a reasonable time by the evidence; and this time was not exceeded. But as tht\ respondents are chargeable with knowledge of the facilities at their own wharf at once, on the report of the vessel, which was early on June 28th or 29th,there is no reason why they should have delayed at least one whole day before beginning to make inquiries for another berth. The respondents should be charged for this day's delay. It is uncertain from the testimony whether the schooner reported June 28th or 29th, and I therefore allow demurrage for one day only, at the rate of eight cents per ton per day, or $2H.80. with interest from July 10th, $4.75, making $33.55, with costs. for which amount judgment may be entered for libelants.
JENKINS V. HANNAN.
and others v.
(Oircuit Oourt, S. D. Ohio,
April 19, 1884.)
Upon a bill in equity to set aside deeds made on orders of sale of lands In judicial proceedings. which were alleged to be null and void, and for an aecount of rents and profits, held, that there was a plain and adequate remedy at law by an action of ejectment for the recovery of the possession of the lands and the mesne profits.
SAME-JUDGMENT AGAINST ONE IN HEBELLION.
J. was a resident of a county that became a part of .West Virginia, and left his home and entered the Confederate army, and continued in armed hostility to the Union until his death. During the time he was so engaged suit was commenced in Ohio by creditors against him, attachment levied on his lands there situated, and constructive service made upon him. was had, and such lands sold upon orders therefor. Upon bill in eqUIty by his heirs against the purchasers and others in possession to set aside said sales on the ground that said proceedings were void. held, (1) that equity had no jurisdiction; (2) that J. having voluntarily left his country for the purpose of engaging in hostility against it, his heirs cannot ju"tly complain of legal proceedregularly prosecuted against him as an absentee, on the ground of his iuabIlity to return or to hold communication with the place where such proceedings were conducted.
In Equity. Franklin T. Oahill and Goode et Huff, for complainants. T. D. Lincoln, for defendants.
SAGE, J. The complainants are the children and heirs at law of Albert G. Jenkins, who died May 21, 1864. The bill sets forth that on the seventeenth day of May, 1862, Albert G. Jenkins was, and had been for many years, the owner in feesimple of certain improved real estate situate in the city of Ironton, Lawrence county, Ohio, and described in the bill: that in the months of July and August, 1861, certain parties named in the bill brought five several actions at law in the court of common pleas of Lawrence county, Ohio, against said Albert G. Jenkins and others, and sued out attaohments based on the non-residence of said Jenkins, which were levied upon said real estate; that service was made by publication, judgments taken in each of said cases,-in three of them by default, and in the remaining two upon trials on the issues joined by answers filed by H. S. Neal, an attorney at law, as attorney for said Jenkins. The complainants allege that Neal acted as such attorney without the knowledge or authority of said Jenkins, who, they allege, never knew of the institution of said suits, or any of them, or of any of the proceedings thereupon. The complainants further allege that upon each of said judgments an order for the sale of said real estate was issued, and upon said order the same was, on the seventeenth da.y of Ma.y, 1862, sold to the defendant William F. Hannan for the
Reported by J. C. Harper, Esq., of the Cincinnati bar,
V. 26F .no.9-42