Volume 55 — Kentucky Reports

<p>APPEAL FROM BRACKEN CIRCUIT.</p>

<p>When an appeal or writ ef error is dismissed, whether by the party prosecuting it or by the court, the whole case is out of court, and no decision can be had upon cross errors of -the appellee or defendant in error. (3 Stat. Law, 35.) Query. What would be the effect of dismissing an appeal before or after a cross appeal ?</p> <p>When an appeal or writ of error is dismissplít^prosoeuting it or by whole case is out of Court and no decision can be had upon cross errors of the appellee or defendant in error. (3 Stat. law, 35.) Quest. What would he the effect of dismissing an appeal before or after a cross appeal?</p>

<p>1. It is not a valid defense to allege that a subscription paper was delivered as an escrow, to become effectual oncondition, when it was delivered to one of the Commissioners appointed to receive subscription to a railroad. It should have been delivered to a third person, to become effectual as an escrow.</p> <p>S. Parol evidence is inadmissible to vary the terms of subscription to a railroad, unless there is fraud or mistake in the execution of the same.</p> <p>3. Subscribers for railroad stock must be presumed to know the provisions of the charter under which the subscription is taken.</p> <p>4. The question whether an incorporated Company has been regularly organized, so as to give it power to act, cannot be inquired into collaterally. It must be by a direct proceeding. (5 Litt., 45; 9 B. Monroe, 71.)</p> <p>5. A subscription to stock in a railroad is not rendered invalid by reason of the subscriber failing to pay a small sum upon each share, when he subscribed; it was his duty to pay it — if he failed it was a failure of duty, and he cannot take advantage of his own wrong. 1. It is not a valid defense to allege that a sub seription paper was delivered as an escrow to become effectual on condition, when it was delivered to one of the commissioners appointed to reeeive subserip tions to a railroad. It should have been delivered to a 3rd. person, to become effectual as an escrow. 2- Parol evidence is inadmissible to vary the terms of a subscription to a railroad, unless there is fraud or mistake ih the execution of the same.</p> <p>S. Subscribers for railroad stock must be presumed to know the provisions of the charter under which the subscription is taken.</p>

The facts are stated in the opinion of the Court. The facts in the case show that Walker, as commissioner of the Anderson Circuit Court, appointed at the June term, 1845, sold 39 acres of land belonging to the appellant, Josiah Martin, to satisfy a decree in bebalf of Lancaster and Lillard, obtained upon a mortgage.

The facts of the case are stated in the opinion of the Court. On the trial of this case, in the court below, two questions arose which it is believed were decided erroneously, and to the prejudice of the appellant. First, as to the right of the Commonwealth to three peremptory challenges, which was allowed ; Second, the right of the appellant to have the regular panel of jurors exhausted, before calling by-standers — which was denied by the Court.

The facts of the case are stated in the opinion of the Court. Rep. Held: that where the description of the amount of the mortgage is less than the real amount, it will not prejudice the sale, but where the amount of the mortgage is described as larger than it really is, it is strongly intimated that it would render the sale void, as conveying untrue intimations to purchasers or bidders, to the defendants’…

The facts sufficiently appear in the opinion of the Court. Rep. The case of Singleton’s will, if any Kentucky authority were necessary, shows in a peculiarly strong light that no person, not a party on the record of the probate, can be concluded or affected by the judgment or the proceeding. This case is regarded decisive of that point. I will proceed to a very condensed discussion of the case, on the facts and the law, on which alone this court must and will decide it: 1.

The facts of the case are stated -in the opinion of the Court. Rrp. Held: “And this very exception as to in- £ strum en is under seal has an exception introduced £ into its generality, for although a person cannot or- £ dinarily sign a deed for, and as the agent of anoth- £ er, without an authority given to him under seal, yet £ this is true only in the absence of the principal; for £ if the principal is…

APPEAL. FROM OWEN CIRCUHL Argued, that according to the petition and deeds! exhibited, the appellant has shown a clear right to dower in the property described. The facts relied upon in the answer of Ford, are no bar to the claim of dower, if proved; but they are not proved.

The facts of the case are stated in the opinion of the Court. Rep. The petition in this case was filed by Clark to recover a tract of land in the possession of Jones. The facts present the case in a concise form, but a short statement here may make them more easily comprehended.

<p>1. Where one of several tenants in common aliens part of the land the purchaser will not be disturbed in his possession, if the other claimants can be satisfied as to their interest out of the remainder.</p> <p>2. A portion of the grantees of the company to whom the grant was made, called Henderson’s grant, (see 3 Uttdl’s haws of Kentucky, 585,) by an ordinance, set apart a portion of the grant for the town of Henderson, by a plan set forth in a plat, in which public grounds, streets, alleys, were laid down: held, that the public grounds, streets, alleys; and the space between the lots and the Ohio, were dedicated to public use.</p> <p>3. It is not competent for the citizens of a town, by deed, to transfer to an individual the title to, or exclusive use of, the streets, alleys, and public grounds dedicated to the use of the public.</p> <p>4. A citizen of a town, by enclosing and holding adversely for twenty years, may acquire exclusive right to a portion of the public grounds dedicated to public use, but the possession and use must be adverse, and the use exclusive.</p> <p>I. Where one of several tenants in common aliens part of the land the purchaser will not be disturbed in his possession, if the other claimants can be satisfied as to their interest out of the remainder.</p> <p>2. A portion of the grantees of the company to whom the grant waa made, called Henderson’s grant, (see 3 Littell’s Laws of Kentucky, p. 585,) by an ordinance, set apart a portion of the grant for the town of Henderson, by a plan set forth in a plat, in which public grounds, streets, alleys, were laid down: held, that the public grounds, streets, alleys, and the space between the lots and the 0-hio, were dedicated to public use.</p> <p>3. It is not competent for the citizens of a town, by deed, to transfer to an individual the title to, or. exclusive use of, the streets, alleys, and public grounds dedicated to the use of the public.</p> <p>4. A citize"'of a town, b? enclosing an® holding ad versely for twenty years, may acquire exclusive right to a portion of the public grounds dedicated to public use, but the possession and use must be adverse and the use exclusive.</p>

<p>1. Petition in equity, filed against Jack & Co., consisting of Jack, Goodall, Dean, and Haven, attaching a tract of land in Lewis county ; process served on Jack and Haven — the other defendants non-residents — and dismissed by the Circuit Court: held that plaintiff was entitled to judgment against the defendants served with process in the county where the suit was brought. (Lanstlale vs. Mitchell, 14 B. Monroe, 348.)</p> <p>2. The 93d section of the Code of Practice has no application to a case of an attachment sued out in one county, where defendant is served with process, and seeking the sale of land in another county; but such proceeding is governed by the 106th section, which authorizes the action to be brought in any county where the defendant resides or is served with process.</p> <p>3. By section 474 a judgment creditor, having an execution returned “no property found,” may institute equitable proceeding in the court from whence the execution issued, or in the court of any county in which the defendant resides or is summoned.</p> <p>4. The question whether two witnesses is necessary to overturn the</p> <p>statements of an answer, under the Code, stated but not decided. ■5. A witness, though party to the suit, having no interest however in the questions in issue, held competent to testify.</p> <p>1. Petition in equity filed agaiust Jack-- & Co , consisting of Jack, Goodall, Dean, and Haven, attaching a tract of land in Lewis couniy; process served on Jack and Haven — tks other def’ts non residents— and dismissed by the Circuit Court— held that plaintiff was entitled to judgment a-against the defendants served with process in the c’ty where the suit was brought. (Lana-dale vs. Mitchell; 14 B. Monroe, 348.)</p> <p>2. The 93d section of Code of Practice has no application to a case of an attachment stir ed out in one-county, where defendant is served with process, and seeking the sale of land in another ■county; butsuch .¡proceeding is forerned by the 06th section, ■piiiich . authorises the action to be brought in any c’ty where the defendant resides or is ser.fed with process.</p> <p>3. By sec. 474 a judgment credl itor, having an execution returned ‘no property found,’ may institute equitable proceeding in the court froth whence the execution issued, or in the court of any county in which the defendant reside» or is summoned.</p> <p>4. The question whether 2. witnesses is necessary to over-, turn the state-, ments of an answer, under the Code, stated but not decided.</p> <p>5. A witness, though party to the suit, having no interest however in the quea tions in issue, held competent to testify.</p>

The facts of the case are stated in the opinion of the Court. Rep. This action was brought in the Jefferson Circuit Court to recover from the defendant damages for an injury which was done to the dwelling house of the plaintiff by the violence of a mob.

The facts of the case are stated in the opinion of the court. Rep. The only question for discussion is whether or not the slaves were runaways, and whether appellee did not know their owners, and whether he had a right to order them to be imprisoned. The doctrine exempting judicial officers from errors of judgment is not questioned where they have jurisdiction; and that a justice occupies a position' as favorable as the highest judicial officer.

<p>B. became the surety of H. in a note drawn, payable to a bank, with the express view of obtaining a loan of money for the support of the family of H. H. without the assent of B. passed it off to R. in discharge of a pre-existing debt: held — that B. was not responsible to R. upon the note.</p> <p>B. became tbs ,surety of H. in a note drawn payable to a bank, with the express view of obtaining a loan of money for the support of the family. of H. H., without the assent of B., passed it off to R. in discharge of a pre-existing debt: held that B. was not responsible to R. upon the note.</p>

<p>1. “Where a person or thing necessary to be mentioned in an indictment, is described with circumstances of greater particularity than is requisite, yet those circumstances must be proved; otherwise it would not appear that the person or thing is the same described in the indictment.” {Wharton’s Am. Critn. Ev., 3d Ed. page 101; Dorsett’s case, 5 Roger’s Rec. 77; 6 Maine, 476; United States vs. Porter, 3 Day’s case's, 283.)</p> <p>2. The indictment was for having counterfeit bills in possession, of a certain description, purporting to be on certain named banks, with the intent to pass them. The proof failed to show that the notes which defendant had, purported to be on any of the banks specified; such proof was necessary to authorize a conviction, and the court should so have instructed the jury when requested.</p> <p>3. It is not necessary that the intention should be to pass counterfeit bills in the state of Kentucky. The statute is general, embracing the intention to pass them at any place.</p> <p>1. “Where a person or thing necessary to be mentioned in an indictment is de scribed with circumstances of greater particularity than is requisite,yet those circumstances must be proved, otherwise it would not appear that the person or thing is the same described in the in dictment.” (See Wharton's Am. Crim. Ev., 3d edition, p. 101; Dorsett’s Case, 5 Roger’s Rec. 77; 6 Maine, 476; United States vs. Porter, 3 Day's Cases, 283.)</p> <p>2. The indict-1 meat was for having counterfeit bills in possession, of a certain description, purporting to be on certain named banks, with the intent to pass them; the proof failed to show that the notes which defendant had purported to be on any of the banks specified — such proof was necessary to author ¡ze a conviction, and the court Bhould have so instructed the jury when requested.</p> <p>3. It is not necessary that the intention «hould be to pass counterfeit bills in the State of Kentucky — th e statute is general, embracing the intention to pass them at any .place.</p>

Delphia, a free woman of color, brought this suit as heir-at-law to Jemima, her mother, also a free woman of color.

The facte of the case are stated in. the opinion of the Court. Rep. The appellees, Hair & Nugent, made an assignment of property to the defendant O’Neal, for the payment of debts due to a part of their creditors —one of whom is preferred over the others — which assignment the appellants seek to set aside as fraudulent, and made with the intent to defraud them and other creditors of the grantors. No depositions were taken.

<p>1. An agent or consignee, having the property of his principal in his possession, and responsible for it, may, and especially if he have an interest in it, though it be only for his commissions, insure it in his own name, and in case of loss recover its full value — holding all beyond his own interest in trust for the owners of the property. (Story on Agency, section 111; Hemtt, Allison Sf Co. vs. Franklin Insurance Company, 3 B. Monroe, 231; 1 Hall, 189.</p> <p>2. Policies of insurance should be liberally construed to effectuate the intention of the^gjmgiJ.</p> <p>3. A policy insuring all the articles constituting the stock of a pork-house, and all articles contained within the building described and appurtenent thereto, covers all within those buildings, without regard to the particular ownership of each or any article which was at the risk of the insured.</p> <p>4. Contracts are to be construed according to the intention of the parties thereto. A contract to sell 40,000 hams, to be paid for on delivery ; the hams were inspected and invoiced, but not delivered or paid for: held that the contract was executory, and property not changed, and if insured protected by the policy. (PMlips on Insurance, lsi vol., 27; 4 Massachusetts Reports, 336.)</p> <p>5. A vendor of personal property, to be paid for on delivery, parts not with the title until payment; if the price is not paid in a reasonable time he may resume his original ownership, as upon a rescisión of the contract. (Story on Contracts, sec. 809; Chitty on Contracts, 427, and authorities there cited.)</p> <p>45. A vendor of goods not delivered, but to be paid for on delivery, has a lien on the property retained in possession for securing payment, and it is upon the presumption that the agreed price is the fair value, and cannot be enhanced by any fluctuation in the value ; and if the goods be insured the vendor is entitled to the insurance corresponding with interest insured. Any interest remaining in a vendor, who has made a contract of sale, remains protected under an existing insurance. (8 Mass. Reports, 516; 5 Pick., 76; 19 lb., 81; Am. Lead. Cases, in note to the case in 8 Mass. Reports.)</p> <p>1. An agent or consignee, having the property of his principal in his possession, and responsible for it, may, and especially if he have an interest in it, though it be only for his commissions, insure. it in his own name, and in case of loss recover its full value — holding all beyond his own interest in trust for the own ers of the property. (Story on Agency, section 111; Hewitt, Allison 4* Co. vs. Franlclin Insurance Company, 3 B. Mon., 231; 1 Hall, 189.)</p> <p>2. Policies of msurasceshould be liberally construed to effectuate the intention of the assured.</p> <p>3. A policy insuring all the articles constituting the stock of a pork-house, and all articles contained within the building described and appurtenant thereto, covers all within those buildings, without regard to the particular ownership of each or any article which was at the risk of the insured.</p> <p>4. Contracts are to be construed according to the intention of the parties thereto. A contract to sell 40,-000 hams, to be paid for on delivery; the hams were inspected and invoiced, but not delivered or paid for: held that the contract was ex-ecutory, and property not changed, and if insured protected by the policy. (Philips on Insurance, 1st vol., 27; 4 Massachusetts Reports, 336.)j</p> <p>5. A vendor of personal property, to be paid for on delivery, parts not with the title until payment; if the price is not paid in a reasonable time he may resume his original ownership, as upon a rescisión of the contract. (Story on Contracts, sec. 809; Chitty on Contracts, 427, and authorities there cited.)</p> <p>6. A vendor of goods not delivered, but to be paid for on delivery, has a lien on the property retained in possession for securing payment, and it is upon the presumption that the agreed price is the fair value, and cannot be enhanced by any fluctuation in the value; and if the goods be insured the vend- or is entitled to the insurance corresponding with interest insured. Any interest remaining in a vendor, who has made a contract of sale, remains protected under an existing insurance.— (8 Mass Reports 516; 5Pick., 76; 19 Lb , 81; Am. Lead. Cases, in note to the case in 8 Mass. Reports.</p>

<p>1. “I do hereby set free from bondage the following nogroes purchased by me of J. C., viz: negro woman Rose, on the 25th day of July, 1802, &c., also the negro girl Poll, which I purchased at Colonel Chew’s sale of negroes, who is aged about nine years and six months, on the 25th day of January, 1814:” Held that Poll was not free until the 25th day of January, 1814, and that her issue born before the last named day were slaves.</p> <p>2. Deeds should be construed by considering all the parts thereof, and see that they harmonize.</p> <p>3. It is not proper to resort to extraneous facts and surrounding circumstances in the construction of writings, where the language is susceptible of a clear solution.</p> <p>1. “I do hereby set free from bondage the following negroes purchased by me of J. C., viz: negro woman Rose, on the 25th day of July 1802, &c.; also the negro girl Poll which I purchased at Col. Chew’s sale of negroes, who is aged about 9 years and 6 months, on the 25th day of January, 1814:” Held, that Poll was not free until the 25th day of January, 1814, and that her issue born before the last named day were slaves.</p> <p>2. Deeds should coneWeriug^aU the parts thereof. Slid S66 tllClfc ihey harmonize,</p> <p>3. It is not proper to resort to extraneous facts and surrounding circumstances in the construction of the writings, where the language is susceptible of a clear ■solution.</p>

<p>APPEAL PROM MARSHALL CIRCUIT.</p> <p>The facts of the case are stated in the opinion of the Court. Rep.</p> <p>The appellant argued that the Circuit Court erred—</p> <p>1.In overrulling his demurrer to the petition. The original petition states that the appellant agreed and promised to marry the appellee, -which he has failed to do, without any averment of an offer on the part of appellee to perform the contract, and a refusal by appellant. The amended petitions filed do not set forth such an offer to marry as will sustain the action. (Fible vs. Caplinger, 13 B. Monroe, 469; Burks vs. Shain, 2 Bibb, 341.)</p> <p>2. The Circuit Court improperly admitted the statements of appellee, in respect to the engagement of appellant to marry her, to be given in, evidence to the jury.</p> <p>3. The instructions of the court to the jury were erroneous, and not the law governing the case, and prejudicial to the appellant.</p> <p>4. There was no proof in the case on which the first instruction could be predicated except the declarations and statement of appellee, not made in presence of appellant.</p> <p>5. The court should not have instructed the jury in respect to damages for seduction, as none can be recovered in. an action for breach of marriage contract. (2 Bibb) 343.))</p> <p>6. There was no proof in the case of an offer on the part of appellee to marry appellant.</p> <p>A new trial should have been granted.</p>

The facts of the case are stated in the opinion of the Court. Rep. The appellants purchased real estate, under a decree of the Nelson Circuit Court, belonging to infants, and finding the proceedings void, for error in conducting the case to a hearing, moved the court to quash the sale, and proceeding for errors apparent on the face of the record, which being- overruled they have appealed to this court. They contend — 1. That the court had no jurisdiction to decree the sale.

On the 19th May, 1854, a jury was impanneled under the 38th section of the act chartering the Henderson and Nashville Railroad Company, to ascertain the amount of damages that would result to Dickerson from running the road through his land. They found a verdict in his favor for $1,636.

The facts of the case are stated in the opinion of the Court. Rep. If the boat and owners are legally liable to compensate appellee for his loss it must be upon tbe principle which renders inn-keepers responsible, or by the rigid rules applicable to common carriers. It is supposed that the boat is not responsible as an inn-keeper would be. The boat is not required to obtain a license to entertain.

The facts of the case are fully stated in the opinIon of the eourt. — Rep.

The facts of the case are stated in the opinion of the court. Rep. The court erred in giving the first instruction to the jury. There were other facts and circumstances proved to corroborate the evidence of the conversations of the plaintiff, and repeated conversations to the same purport, and their weight greatly increased.

1st Case — Pending the election for sheriff of Boyle county, in 1854, the defendant sold to Alex.

The facts of the case are stated in the opinion of the Court. Rep. Finnell, Kinkead, and Winston, as commissioners appointed by the Judge of the Kenton Circuit Court to wind up the affairs of t.he Kentucky Trust Company Bank, sued Clark, Robbins, Mack, and Payson, to recover the amount of a bill of exchange drawn by Robbins on Clark in favor of Mack, and by him indorsed to Payson, and by Payson indorsed to the Kentucky Trust Company Bank.

<p>APPEAL PROM PIKE CIRCUIT.</p> <p>The facts of the case are stated in the opinion of the Court. Rep.</p>

<p>1. A slave is incapable of holding property, or receiving the title t® property, in any degree ; and a devise of property to a slave is void, as is a devise to another for the benefit of a slave, and passes no title to the slave.</p> <p>2. The devise to a slave being void the property passes to heir at law, (1 Statute Law, 596,) and such heir may sue and compel a release of title from one asserting right under such void devise. (Ses. Acts, 1853-4, page 149.)</p> <p>1. A slave is incapable of holdingproperty or receiving the title to property in any degree; and a devise o£ property to a slave is void, as is a devise to another for the benefit of a slave, and passes ho title to a slave.</p> <p>2. The devise to a slave being void, the property passes to heir-at-law, (1 Stat. Law, 596,) and such heir may sue and compel arelease of title from one asserting right under such void devise. (Sess. Acts, 1853-4, p. 149.)</p>

<p>1. In a suit by an assignor of a note, which the assignee has failed to recover from the obligor, it is necessary to set out the consideration of the assignment.</p> <p>2. The plaintiff should also state the reason why the amount was not recovered from the obligor.</p> <p>3. If the assignor be party to the suit in favor of the assignee against the obligor, he is bound by the decision, and cannot controvert it in ■ a suit by the assignee against him to recover the amount paid for the assignment.</p> <p>1. In a suit by an assignor of a note which the assignee has failed to recover from the obligor, it is necessary to set out the consideration of the assignment.</p> <p>2. The plaintiff should also state the reason why the amount was not recovered from the obligor.</p> <p>3. If the assignor be party to the suit in favor of the assignee against the obligor, he is bound by the decision, and cannot controvert in a suit by the assignee against him to recover the amount paid for the assignment.</p>

<p>1. A suit was brought in the county of defendant’s residence; process issued to that county and an adjoining county, and served in the latter county in time for judgment, but not in the county of defendant’s residence in time for judgment: Held, that it was error to render judgment upon the service in the foreign county. (Code of Practice, chap. 5, secs. 107, 110.)</p> <p>2. The 'defendant having objected to the judgment, and the court overruling his objection, it was proper to bring the case up for correction of the judgment; but if the court had not decided the question in that form it would have been necessary to have moved the court for its correction, as a clerical misprision, before bringing the case to this court.</p> <p>1. A suit was brought iu the county of defemlant’s residence; process issued to that county and an adjoining county. and served in the latter county in time for judgment, but not in the county of defendant’s residence in time for judgment: Held, that it was error to render judgment upon the service in the foreign eouu ty. (Code of Vrac. ckap. 5, secs. 107, 110.)</p> <p>2. The defendant having objected to the judgment, and the court overruling his objection, it was proper to bring the case up for correction of the judgment; but if me court had not decided the question in that form, it would have been necessary to have moved the court for its corree tion, as a clerical misprison, before bringing the case to this court.</p>

This suit was brought by the commissioners of the Trust Company Bank, on a bill of exchange which the bank held upon Nesbit as drawer, Scott as acceptor, and Goodson as indorser. The petition sets forth the bill in the usual form. The failure of the bank in October, 1854, and the appointment of the commissioners by the chancellor on bill filed, and asks judgment for the amount of the bill.

<p>1. After a partnership has been dissolved, and notice thereof, one partner cannot bind his former oo partner by any other instrument of writing which creates a new cause of action, even for the renewal of a partnership note, or the liquidation of a partnership account.</p> <p>2. But a note given by one of a firm, in the usual course of business, will be binding on the other members of the firm, unless the payee had notice of the dissolution.</p> <p>3. The court should not give to the jury a positive instruction to find a particular fact when there is testimony conducing to show the contrary.</p> <p>4. One of a late firm who has executed a note for a debt of the late firm, which was probably barred by the statute of limitation, is an incompetent witness to charge another member of the firm-in a suit upon the note.</p> <p>1. After» partnership has-been dissolved, and notice there</p> <p>of, one partner cannot bind his former co-pa-tner by any other instrument of writing which creates a new cause of action, even for the renewal of a partnership note, or the liquidities of a partnership account.</p> <p>2. But a note given by one of a firm in the usual comae of business, will be binding on the other members of the firm unless the payee had notice of the dissolution.</p> <p>3. The court should not give to the jury a positive instruction to find a particular fact when there is testimony conducing to show the contrary.</p> <p>4. One of a late firm who has executed anote for a debt of the late firm, which was probably barrt-d by the statute of limitation, is an incompetent witness to charge another member of the firm in a suit upon the note.</p>

<p>1. When the terms of a subscription are prescribed by a charier, it is not necessary to state the terms in the petition j and a general averment that all the terms and conditions necessary to authorize a demand of payment of subscriptions is sufficient under the 149tó section of the Code of Practice.</p> <p>2. To authorize a corporation, created by statute, to sue, it is not necessary that it should aver its regular organization, and generally one dealing with a corporation is not permitted to deny its existence.</p> <p>3. It is not necessary to aver readiness to perform a part of a contract which is to be performed after the act complained of.</p> <p>4. Conditional subscriptions to a railroad, not inconsistent with the terms of a charter, are binding if the conditions are performed.</p> <p>1. When the terms of a subscription are pre scribed by a charter it is not neo ssary to state the terms in the petition; and a general averment that all the terms and conditions necessary to authorize a demand of payment of subscriptions is sufficient under the 149th section of the Code of Practice.</p> <p>2. To authorize a corporation created by statute to sue, it is not necessary that it should aver its regular organization, and generally one dealing with a corporation is not permitted to deny its existence.</p> <p>3. Tt is not necessary to aver readiness to perform a part of a contract which is to be performed alt r the act complain ed of.</p> <p>4. Conditional subscriptions to a railroad not i n o o n s i s tent with tlie terms of a charter, are binding if the conditions are performed.</p>

<p>1. The will contained this clause: “Eieh and every one of my slaves arc to be liberated and placed in the hands of the Kentucky State Colonization Society, for the purpose of being colonized to Liberia:” Hold, that in the foregoing clause there are no words of immediate emancipation, but the slaves are to be placed in the hands of the society for the purpose of being colonized to (in) Liberia The liberation and indicated d'sposition is for the single purpose of being colonized, and so connected with it as to be incapable of a separate and independent operation, without violating the intention of the testator. Their colonization as far as it depends upon the slaves is a condition precedent to their emancipation.</p> <p>2. A bequest to slaves, eacli of an equal share in one-half the proceeds of the testator’s estate, being illegal, can only be made effectual on their becoming free, and capable of taking as legatees}, and none are entitled to freedom or to the bequest made to them who are not colonized.</p> <p>3. The will, making no provision for the expense of transportation of the slaves to Liberia, or requiring that it ahull he at the expense of the Colonization Society, if there be no other fund, a portion of the legacy is to be appropriated to th it. purpose, in consistency with the will and the Revised Statutes, page 614</p> <p>4. The right to freedom on the part of the slaves being prospective, their hire, until their freedom is complete, is a part of the estate, and properly a fund for distribution, as the balance of the estate, and may properly be applied to defray the expenses of transportation, equally for the benefit of all; and the remaining parts paid to each adult on arriving in Liberia, or on their embareation, and the parts of the infants so secured to them in Liberia that they receive it on arriving at full age.</p> <p>1. The will contained this clause: “Each and every one of my slaves are to be liberated and placed in the hands of the Kentucky State Colonization Society, for the purpose of being colon-zed to Liberia: Held that in the foregoing clause there are no words of immediate emancipation, but the slaves are to be placed in the hands of the society for the pur pose of being colonized to (in) Liberia. The liberation and indicated disposition is lor the single purpose of being coloni zed, ana so connected with it as to be incapable of a separate and independent operation without violating the intention of the testator. Their coloniza tiou, as tar as it dependsuponthe slaves, ia a condition precedent to their emancipation.</p> <p>2. A bequest to slavea, each of an equal share in one half the proceeds of the testator’s estate, being illegal, can only he made effectual on their becoming free, and capable of taking as legatees, and none are entitled to freedom or to the bequest b ade to them who are not colonized.</p> <p>3. The will, making no provision for the expense of trans portation of the slaves to Liberia, or requiring that it shall be at the expense of the colonization society, if there be no other fund, a portion of the legacy is to be appropriated to that purpose, in consistency with the will and the Rev. Stat., page 644'.</p> <p>4. The right to freedom on the part of the slaves being p ro s p ec tive, their hire, until their freedom is complete, is a part of the estate, and properly a fund for distribution, as the balance -of the estate, and may properly be applied to defray the expenses of transpo rtation equally for the benefit of all; and the remaining parts paid to each adult on arriving in Liberia, or on their embarcation, & the parts of the infants so secured to them in Liberia that they receive it on arriving at full age.</p>

<p>1. Tic separate property of a married woman is liable for debts which site may contract upon tlie faith of that property, and the husband cannot interpose any obstacle to the collection of those dc bts. especially after permitting the wife to trade with others, and deal with the property as if she was unmarried.</p> <p>2. Courts of equity will subject the separate property of a fane coverf to the debts which she may create"; and the execution of notes is sufficient evidence of her intention to chatge her separate estate with the payment of the debts for which she executes her notes. (7 B. IKonroe, 293; 13 lb., 384.)</p> <p>3. A separate estate in a married woman confers upon her the power to deal with it as a, feme sole The right which site acquit es in property under the operation of the statute to protect, the rights of married women, confers no such power. (12 B. Mon., 3£9.) The two estates are different. The one can be rendered liable for debts by the separate act of the wile; the other only in tile way designated by the statute.</p> <p>1. The separate property of a married woman is liable for debts which she may contract up on the faith of that property, and the husband cannotinterpose any obstacle to the collection of those debts, especially after permitting tho wi fe to trade with others, and deal with the property as if she were unmar ried.</p> <p>2. Courts of equity will subject the separate property of a feme covert to the debts which she may create, and the execution of notes is sufficient evidence of her intention to charge her separate estate with payment of the debts for which she executes hei notes. (7 B. Mon., 293; 13 lb., 384.)</p> <p>3. A separate estate in a married woman con fers upon her the power to deal with it as a feme sole. The right which she acquires in property under the operation of the statute to protect the rights of married women confers no such power. (12 B. Man., 329.) The two estates are different. The one can be rendered liable for debts by the separate act of of the wife; the other only in the way designated by the statute.</p>

<p>1. Where one undertakes to perform a contract of a specific character in services, upon which he is to receive a fixed compensation, he cannot claim such fixed compensation under the contract until performance, unless prevented by the other party to the contract, without cause, in which event the party is entitled t> a ratable compensation, according to the terms of the contract; but if the other party have just cause for obstructing performance of the condition precedent, nothing can be claimed for the part performance but a reasonable compensation commensurate with the service rendered.</p> <p>2. Though a party may have failed to fulfill a contract by the performance of service which would entitle him to a fixed compensation, if he has performed service for the benefit of the other party he may be entitled to compensation for the value of such services.</p> <p>3. If a party in his hill in chancery fail to show that he is entitled to the specific relief which he asks, yet if he show a right to any relief, even in a court of law, a demurrer to the bill should not be sustained as to the whole claim, but the case transferred to the common law docket.</p> <p>1, Where one undertakes to perform a contract of a specific character in services upon which he is to receive a fixed com ponsution, he cannot claim Biu-h fixed compensation under the contract until performance, unless prevented by the other party to the contract without cause; in which event the party is entitled to a rateable com pensation, ac cording to the •terms of the contract. But if the other party have just cause for obstructing performance of the condition precedent, nothing cm be claimed for the part performance, hut a reasonable compensation commensurate with the service rendered.</p> <p>2. Though a party may have failed to fulfill a contract by the performance of service which ■would entitle .him to a fixed c ojmp ensation, if he has performed service for the benefit of the other party, he may bo entitled to compensation ior the valueof such services.</p> <p>3. If a party in his bill in chancery fail to show that he ig entitled to the specific relief which he asks, yet if he shows a right to any relief, even in a court of law, a demurrer to the bill should not be sustained as to the whole claim, but the case transí erred to the common law docket.</p>

<p>3. Tboagh the hirer of a slave will sot be responsible for tfie value of a slave which he has bound himself to return at the expiration; of the term of hiring, when he is prevented from1 doing so by the act of Sod, the slave, or the owner, yet he is responsible when hio inability to return the Slave arises from his own illegal and wrongful act.</p> <p>2. The liability of tíre sarety and the principal is the same? when the principal is bound the surety is also bound; the wrongful act of the principal will not exonerate the surety.</p> <p>3. Where the object Of a suit in chancery is to restrain' the fraudulent disposition of property to avoid the payment of a legal liability, which is inevitable, (as for inability to return a slave hired, arising from the act of the hirer,) the chancellor has jurisdiction to settle and adjust the whole controversy. And two persons having separate right to sue at law may unite in a petition in equity in such suit, for the benefit of one party.</p> <p>1. Though the hirer of a slave will not be responsible for the value of a slave which he has bound himself to return at the expiration of the term of hiring, when he is prevented from doing so by the act of God, the slave, or the owner, yet he is responsible when his inability to return the slave arises from his own illegal and wrong ful act.</p> <p>2. The liability of the surety and the principal isthesame; when the principal is bound the surety is also bound; the wrongful act of the principal will not exonerate the surety.</p> <p>3. When thii object of a suit in chancery is to restrain the fraudulent disposition of property to avoid the payment of a legal liability which is inevi^je*(asformturn a slave the ™t'of *e hñfpr,) the chancellor has jurisdiction to the^ho^oontroversy. And having separate [á^may^nite in a petition in guit^fo™ Sth® benefit of one party.</p>

<p>1. The lien of the landlord upon property brought upon leased premises, is only upon the interest which the lessee has in the property. And b.y the 14th section of the statute, (Rev. ¡Stat.,p. 441,) the exclusive lien of the landlord is confined to the produce of the premises, fixtures, household furniture, and to such other personal property as is acquired before the tenant takes possession. The 15th section of said act secures to the landlord one year’s rent, against incumbrances given Upon personal property after it is upon the premises, whether the rent accrue before or after the creation of the lien, and which shall not have been due more than four months. These periods of one year and four months have reference to the levy of the warrant.</p> <p>2. The 14th and 15th sections of the act concerning landlord and tenant, are to be so construed as to harmonize, and the latter so qualified as to harmonize with the former; the species of property, therefore, which is described in the 15th section is subject to the exclusive lien under the same limitations as to the time when the rent in arrear becomes due, as that described by the 14th section, and for like reason the 19th and 20th sections.</p> <p>1. The lien of ihe landlord upon property brought upon leased premises is only upon the interest which the lessee has in the property. And by the 14th section of the Statute. (Revised Statute, p. 441,) the exclusive lien of the hind-lord is confined to the produce of the premises, fixtures, household furniture, and to such other personal property as is acquired before the tenant tabes possession. The J5th section of said act secures to the landlord one year’s rent, against incumbnmces given upon personal property after it is upon the premises, whether the rent accrue before or after the creation of the lien, and which shall not have been due more than four months. These pe'iods of one year and four mouths have reference to the levy of the warrant. ■</p> <p>and i5th section» of the act concerning land lord and tenant are to be so eonmonlLTa^the latter so qualifed as to ¿acmonize with the f bpccies ot prop— erty, therefore, ed Tn1 the 15th ?ectl0n j,s sub" ject t0 jfog ex_ elusive lien unthe time wben the rent >n ar~ rear becomes i4t¿ section, son the 19th a^d 2Uth sections,</p>

The facts of the case are stated in the opinion of the court. — Rep. This action of assumpsit is brought on an account. Pleas, the general issue and the statute of limitations.

The facts of the case appeal’ in the opinion of the Court. Rep. William Thomas, and Elizabeth Thomas his wife, attempted to convey by deed, to James Thomas, a tract of land belonging to the wife. James Thomas took possession, paid for the land, and afterwards sold it. Through several intervening conveyances George Thomas became the owner by conveyance from one Garner. George Thomas purchased in good faith, and made lasting and valuable improvements.

<p>X. Contracts are to be construed according to the real intent and understanding of the parties, primarily by the words which they have used, with the aid, if necessary, of such other considerations as may show the sense in which the party intended to be understood.</p> <p>2. When a stipulation in a policy of insurance is that the insurers are are not to be liable for loss1 arising from the bursting of boilers, and the boiler burst, and the boat took fire and burned up: Held, that there was no liability under the policy.</p> <p>l. Contracts Record|jng &e real 'derstanding Rf j^niRRy’ the /words 'which Rith the aidRif necessary, •anp.h r»f.hi»T> of such other considerations as show the sense in which the party intended to be understood.</p> <p>2. Where a stipulation in a policy of insurance is that the insurers are not to be liable for logs arising fro in the bursting of boilers, and the boiler burst, and the boat took fire and burned up: Held, that there was no liability under the policy.</p>

<p>1. The owner of a slave domiciled in the state of Missouri, and having his slave there, cannot maintain a suit against a steamboat for the value of a slave escaping on such boat, on the ground that the boat passed through waters of Kentucky with the slave on board, under the statute of Kentucky. {Revised Statutes, 143, 4.)</p> <p>2. To render the boat liable under the statute the slave must be conveyed, or attempted to be conveyed, out of this state, or from one part of the state to another, and this when the slave is taken on board of a vessel in this state, or at any place out of the state.</p> <p>3. The statute was not intended to embrace slaves who were in no way subject to our laws at the time of their escape.</p> <p>1. The owner of a slave domiciled in the state of Missouri, and having his slave there, eannot maintain a suit against a steamboat for the value of a slave escaping on such boat, on the ground that the boatpassedthro’ waters of Kentucky with the slave on board, under the statute of Kentucky. Revised Stai.,p. 143-4.)</p> <p>2. To render the boat liable under the statute the slave must be conveyed, or attempted to be conveyed out of this state, or from one part of the state to another; and this, when the slave is taken on board of a vessel in this state, or at any place out of the state.</p> <p>3. The statute was not intended to embrace slaves who were in no way subject to our laws at the time of their escape.</p>

The facts of the case are fully stated in the opinion of the court. — Rep. The main question presented for the decision of the court in this case is, whether Mrs. Worsley has the right to hold the property conveyed in trust for her benefit, renounce the provisions of the will of her husband and claim her distributive share of his estate.

The facts of the case are stated in the opinion of the Court. Rep. The judgment in behalf of Garret is clearly erroneous. He proved a possession of only two years. (See Records, page 14.) And the proof shows that he was within the boundary of plaintiffs’ patent at the institution of the suit. As to Hall’s fifty-acre survey he only shows an adverse holding to the extent of about five acres. It does not appear that he intended to take possession to any greater extent.

The facts of the case are stated in the opinion of the court. — Rep. Did the circuit court decide correctly in giving to Mrs. Jennings the slaves sought to be subjected to Jennings’ debts? We contend that it did not. Although the evidence is contradictory there are some facts undisputed.

On the 19th day of October, 1841, Alex. M. Burch conveyed to James K. Burch certain slaves and other property in trust for the benefit of his wife, Elizabeth M. Burch, during her life, with remainder to the children of said Alex. M. and Elizabeth M. Burch. The deed of trust was duly recorded in the county court clerk’s office of Fayette. All the property specified in the deed of trust belonged to Elizabeth M. Burch before the marriage.

The facts of the case are stated in the opinion of the court. Rep. The first question presented in thisrecord is, whether the Circuit Court erred in the exclusion of the depositions of Myers and wife? Held: that the vendee of real estate can not object to the payment of a note for the purchase money, upon the ground, that the conveyance had been made to defraud creditors. “Such a conveyance, (says Judge Blackford, in delivering the

The facts of the case are stated in the opinion of the court. Rep. 1. The first question arising is, was Garrett eligible at the time he was voted for. The agreed facts show that he was not. Held: as he was entitled to hold it until his successor was qualified. We admit that he was entitled to the office until his successor was qualified, but think that Wyatt was his legal successor.

In the year 1847, Humphrey Hill, for the consideration of three hundred dollars, conveyed by deed with general warranty, seventy-four acres of land to Lurania Golden.

The facts of the case are stated in the opinion of the court. — Rep. The bond sued on was presented to Cook, with the name of Bruce as principal, and Hanley as surety. The sheriff having the attachment in his hands, was not willing to accept Hanley alone, as surety; Cook then signed as a joipt surety for Bruce. Hanley was released on the plea of non est factum.

Harris brought an action for assault and battery against Fitzpatrick, and recovered a judgment for $152 in damages. Fitzpatrick brought the case to the court of appeals, and it was reversed. Whilst the case was in the court of appeals, Harris sued out execution on his judgment and sold property to the amount of $65 — part of which defendant bought on credit and had not paid.

The facts of the case are stated in the opinion of the court. Rep. The appellant was an actual settler upon the land in . contest, before the survey of the appellee was made, and no notice was given by appellee to appellant of his design to appropriate the land as required by the statutes.

J. M. Thompson & Brothers being indebted to Caruth, &c., about $700, their note was placed in the bands of Handy for collection, who took of the Thompsons sundry notes on other persons, indorsed in blank by the Thompsons; amongst others a note on C. C. Vanarsdale for $117 41 ; before the assignment was filled up, Handy, the agent of Caruth, &c., handed it back to one of the Thompsons who had passed it to him, in order to have it secured; Thompson sold the note to Jones;…

The facts of the case are stated in the opinion of the Court. Rep. Argued: 1. That no sufficient cause of action was set out either in the first or second paragraph of pi an tiffs’ petition. It is not alledged or proved that either of the owners of the steamboat was present when the collision with the wharfboat is alledged to have occurred. The fact is important in one view of the case.

AFPEAL FROM M’CRACKEN CIRCUIT. The facts of the case are stated in the opinion of the court. — Rep. Argued that the circuit court had erred in refusing to give an instruction to the jury to the effect that if it doubted, upon the evidence, whether the appellant was or not insane at the time of the commission of the homicide alletlged in the indictment, that the prisoner was entitled to the benefit of that doubt, and they should acquit him.

The facts of the case are stated in the opinion of the court. Rep. The appellant had two valid defences to this proceeding. 1. He exhibited a commission from J. A. Wright, late governor of Indiana, a state bordering on the Ohio, appointing him a pilot at the falls of the river Ohio, for the term of one year from the 28th April, 1853, which is valid under the act of congress of 2d March, 1837.

The facts of the case are fully stated in the opinion of the court. — Rep. The only question presented for the decision of this court is — did the circuit court err in deciding that so far as the payments for work, &c., ha¡I been postponed, by contract, beyond the period of one year, the lien was waived or lost to appellant. This question for decision arises under the act of the legislature of 1834, (Sess.

The facts of the case are stated in the opinion of the court. — Rep.

The facts of the case are stated in the opinion of the court. — Rep. Held: that when a lady, pending a treaty of marriage, which afterwards took effect, made a voluntary assignment of part of her property to her sister, it was held that the husband, who was, under the circumstances, presumed to have had notice of the assignment before the marriage, was not entitled to set it aside on the ground of fraud…

The facts of the case are stated in the opinion of the court. Rep. The question presented in this record is one which has been differently decided by different courts. The circuit judge seems to regard it as a settled question, that real estate held as partnership stock, is to be considered as converted into personalty, as between the heir and administrator of the deceased partner.

<p>Neither the act of 1848, that of 1778, 1785, 1796, or 1831, relating to conveyances of land by femes covert, authorize the conclusion that a feme covert, uniting with her husband in a conveyance of land in which there is a warranty of title, is bound with or as the surety of the husband in such warranty. The statutes only enable her to pass her title.</p> <p>Neither the act of 1846, that of 1776, 1785, 1896, or 1831, relating to conveyances of land by femes covert,</p> <p>authorizes the conclusion that a feme covert uniting with her husband in a conveyance of land in which there is a war-ant,y of title, is bound with, or as the surety of the husband in such warranty. The statutes only enable her to pass her title.</p>

<p>APPEAL, FROM JEFFERSON CIRCUIT.</p> <p>The facts of the case are stated in the opinion oí the Court. Rep.</p> <p>Argued: 1. That the circuit court erred in overruling the demurrer to the plaintiffs’ petition. The suit is on a bill of lading, which promises conveyance 'and safe delivery, “the dangers of the river and fire excepted.” The petition does not negative loss by dangers of the river, and therefore shows no cause of action. (Cited Gbztty's Plead. 6 Lon. Ed., 309,334-5.) If a contract be stated as absolute, it will not be supported by. proof of a contract containing an excepfiion from certain classes of liability : as for example, ’“that the carrier was not to be responsible for losses by fire, perils of the sea or the like.” (Greenleaf’s Ev., 4 ed., 2 vol. 209.) The plaintiff must always state an exception. (Chitty's Plead., ed. 1828, p. 317; Slocum vs. Fairchild 14, Wend. 329; Gould’s Plead., ch:.4, sec. 20.) See the form of a declaration in Covenant in such case. (2 Chitty, 366.)</p> <p>2. The answer of appellant is sufficient. The Code of Practice, section 151, says, that the statement of any new matter constituting a defense, shall be in ordinary and concise language, without repetition. This has been done so as to show an inevitable necessity for a jettison of plaintiffs’ goods to save the boat and passengers.</p> <p>The grounding of the boat was without negligence or want of skill; everything was done that could be done; all this is stated in the answer, and the answer shows the loss to be embraced by the exception. (Collier vs. Valentine, 11 Missouri Rep.? 299.)</p> <p>The pleadings are to be liberally construed, with a view to substantial justice between the. parties.— {Code of Practice, sec. 172.)</p> <p>It is admitted that to justify a jettison — 1st. The boat or vessel must be in imminent danger. 2d. The things selected to be cast out, must be selected for that purpose. 3d. It must be resorted to for the general benefit. 4th. It must be deliberately done. 5th. The vessel must be preserved. {Stephens <$f Benicke on Average and Marine Insurance, 2 ed., 61; Arnold on Insurance, 887.) These things are all shown in substance in the answer. The court is referred to Gould vs. Oliver, 4 Bigharri!s New Cases, 134; 3 vol. Eng. Law Rep.; Millard vs. Ellis, 3 Adolph ^ Ellis’ New Series 120, 43 Eng. Law Rep.</p> <p>3. The plaintiff had no right to a judgment for the amount which might arise from liability from general average in the suit,and therefore the court did not err in overruling his motion for judgmentfor the amount on general average; no such claim was set up in the plaintiff’s petition. The claim was distinct from and inconsistent with that set out in the petition.</p> <p>4. The circuit judge erred in excluding the testimony offered by defendant to prove that spars and anchors, in the opinion of the witness, could not have been successfully used to relieve the boat. The defendants were bound to use the best means to relieve the boat which they could command. If spars and anchors, would have been useless, they were not bound to apply them; this could only be ascertained by the opinion of witnesses. The evidence was admissible, both upon principle and authority. (Bell vs. Reed, 4 Binhey, 127 ; Hart vs. Allen Grant, 2 Watts,. 114.) The opinions of the officers and crew upon a point involving the propriety of any particular effort, should have been admitted to the jury. (Reed vs. Dicks, 8 Watts, 479; Hart vs. Allen fy Grant, 2 Watts, 114.)</p> <p>The opinions of the witnesses offered were admissible ; they were more conversant with the subject about which they were called to testify. (Davis vs. Mason, 1 Pick., 156; Richard vs. Murdock, 10 Barn. Sp Cress, 527; Maltón vs. Nesbit, 1 Carr cjr Payne. 70; Jamison vs. Dunkald, 12 Moore, 148; 16 Shepley, 317, 11 Missouri Rep., 299.)</p> <p>The carrier is not bound to make good a loss by a jettison which arises from an intention to benefit the owner, if the loss is one which a man of ordinary firmness and sound judgment would have incurred, and where the loss resulted from the pressure of some real and immediately impending danger, and the necessary resort to avoid great loss. (Arnold on Ins., 884.) It is by the opinions of witness who were experienced navigators alone, that the facts necessary to justify a jettison can be made out. Moreover, the court erred in assuming judicial knowledge without proof, except by one witness, that spars and anchors were the ordinary mode of relieving a boat grounded on a sand-bar, and then rejecting proof that they could not have been successfully applied.</p> <p>The carrier is in no case responsible, unless for deJinquency, and the delinquency must have contributed to the loss. Whether it did or did not contribute to the loss, is a question of fact for the decision of the jury upon evidence. If it is shown that spars and anchors would have been useless, then there was no negligence in failing to apply them; whether they would or would not have been useless, can only be known by the opinions of witnesses.</p> <p>5. The court erred in excluding what transpired at the consultation of the officers, as to the course to be adopted in the perilous condition of the boat. (See Reed vs. Dicks, 8 Watts, 480.) It was part of the res gestae. (Story on Bailments, sec. 339; Tompkins vs. Saltmarsh, 14 Searg. c)- Rawle, 275; Beardsley vs. Richardson, 11 Wendell 25; Duncan vs. Jenkins, 2 Adolph Sf Ellis, 80; Angel on Carriers, 2 ed., sec's. 29, 30,40, 64,468; Millikin vs. Greer, 5 Mississippi, 429; Poston vs. Postern, 3 Watts Sf S., Penn. Rep., 127; Stitt vs. Wilson, Ohio Rep., 505; In re vs. Taylor, 9 Paige N. Y.Ch'y. Rep., 611.)</p> <p>The cry from passengers that the boat was sinking, was also admissible as part of the res gestae. (1 Green-leaf, 5 ed., sec. *8, Howell's State Trials, 542,) which the court excluded.</p> <p>6. The dangers of the river being an exception in the bill of lading, is analogous to the exception in behalf of carriers at sea, of the perils of the sea. The dangers arising from the frequent changes of the bed of the river, and the consequent accumulation of sand bars and snags, is embraced by the exception. The liability does not depend upon the fact alone of whether the bar is well known, so much as upon the fact whether the ordinary channel was pursued by skillful pilots, and whether there was any rashness or negligence in conducting the boat.— Coming in contact with an unknown bar, is one of the dangers of the river. {Collier vs. Valentine, Supra; Eveleigh vs. Sylvester, 2 Bevard, 178.) So a loss arising from collision is one of the dangers of the river, and within the exception. (12 Smectdes dp Marshall. 599.) So, of running on an unknown rock in sea navigation. (Williams vs. Grant, 1 Conn. Rep.) The case of Friend vs. Wood, 6 Grattan, 189, cited by adverse counsel is not applicable. There was no bill of lading in that case, nor was there a bill of lading in McCall vs Brock, cited from 5 Strobert, 119. The view of the case, and destination which is relied on by us, is recognized by Angel on Carriers, sec’d ed., sec. 168. The dangers of the river are construed to mean such unavoidable casualties as human skill and foresight cannot easily detect. (Turner vs. Wilson, 7 Yerger, 340; Gorden vs. Buchanan, 5 lb., 171.)</p> <p>The skill required by the earner, is the usual skill belonging to such persons, or it is that discretion and foresight which is expected from persons in such employment, (Williams vs. Branson, 1 Murphy,) or it is the usual diligence and skill, (Whitesides vs. Thurlkill, 12 Smead dp Marshall,) or it is ordinary or reasonable skill and diligence. (Angel on Carriers, 167-8, sup; Story on Bailments, sec. 512.)</p> <p>It was the province of the jury to determine whether the proper skill and diligence had been employed; and to enable the jury to ascertain these facts, all the circumstances attending to such have been developed.</p> <p>7. Had the carrier in this case the right to make the jettison? The affirmative is insisted on. A jettison is justifiable to preserve life, but is not justifiable if rashly, imprudently, or unnecessarily made. (Story on Con., 1 ed., sec. 461, citing Mouse’s Cases, and 2 Coke’s Rep , 63 ; Smith vs. Wright, 1 Caine’s Rep., 43; 2 Kent’s Com. sec. 4, p. 604; Jones on Bailment, 107-8 ; Story on Bailment, 575; Bird vs. Astcock, 2 Bulstrode’s Rep., 280; 2 Rolle’s Ab., 567; Bancroft’s] Case referred to, cited in Kenrig vs. Eggleston, Alleyn’s Rep., 93.)— Chancellor Kent says, “ if goods be destroyed by necessity, as by throwing them overboard from a vessel or barge, for the preservation of the vessel and crew in a tempest, the carrier is not liable. (2 Kent’s Corn. 5 ed., 604, 625; Story on Bailment, sec’s 527, 531, 575, 583; Gi'llet vs. Ellis, 1 Beck IB. Rep. 579.)</p> <p>What is the remedy for the loss incurred by a justifiable jettison? It is a general average contribution , the cargo, freight and vessel contributing to pay the loss. (Abbot on Shipping, page 473.) The rule of the Rhodean law, is this: “If goods are thrown overboard in order to lighten a ship, the loss incurred for the sake of all, shall be made good by the contribution of all. The safety of some should not be purchased at the expense of others; therefore, all must contribute to repair the loss.” (See Whittridgevs. Norris, 2 Mass. Rep., 125 ; Nickerson vs. Tyson, 8 lb., 467; Maggrath vs. Church, 1 Caine, 196; Sampson vs. Ball, 4 Dal., 459; Gray vs. Wain, 2 Searg. 4* Raw., 229.)</p> <p>8. It is admitted that the sacrifice should appear to have been made under the urgent pressure of some real and immediate danger, and resorted to as the sole means of escaping a greater loss; (Am. on Ins., 884,) that it was the result of deliberation, not the result of a groundless timidity. Lord Kenyon says: “The rule of consulting the crew is rather founded on convenience than necessity.” (Bukley vs. Bresgrove, 1 East. 228.) Judge Story says: “A consultation with the officers is highly proper in cases which admit of delay and deliberation, but if the propriety and necessity of the act be otherwise made out, there is an end of the substance of the objection.” (13 Beters, 343-4.)</p> <p>What degree of danger must exist to authorize a jettison cannot be defined with exactness. It is clear that the moment of the greatest distress cannot be waited for. A measure so long deferred might often prove too late, and if it were put off till without that measure be resorted to, all would be lost, it would be no sacrifice. (Stevens 4* Benecke on Average, 99.) If due judgment and discretion are used in making a jettison, it will be a case of average, although the master may be mistaken as to the degree of danger, (lb. note, page 61.) It must be in apparently imminent peril, (Philips on Ins., 3d Ed.,p. 65, sec. 1270.) “In this respect it is usually considered sufficient, if it appears to the master or other party having charge of the subject matter, to require the sacrifice, and the same is made in good faith.” (Ib. sec. 1271.)</p> <p>Abbott says a jettison is justifiable where the vessel is laboring on a shallow. This is the case here, and is one of the dangers of the river. (Kent’s Corn., supra; Stephens Benecke on Average, 102; lb. 64.) It should be made of goods of the least value and most weighty, as was the case here.</p> <p>The custom, as is proved, justified the stowing of the molasses of the appellant on deck. (Brown vs. Cornwell, 1 Root’s Con. R., 60; 4 Campbell, 142; Abbot on Ship., 488; 4 Bingham’s New Cases, 134; 33 vol. Eng. Com. Law Rep.; 3 Adolphus ¿f Ellis, New Series, 120; 43 vol. Eng. Com. Law Rep.; Gillet vs. Ellis, 11 III. Rep.; 1 Pick., 579; 6 Ohio Rep., 30; Phillips on Ins., 3 Ed., sec. 1274,page 74; Arnauld on Ins., 2 ed., 888; Barber vs. Brace, S Conn. Rep., 9.)</p> <p>The case, as made out by the proof and admitted, shows: 1. That this was a case of jettison. 2. That it was necessary, and caused by the dangers of the river; or, in other words, produced by accidental grounding. 3. The molasses thrown overboard were the most convenient to be reached, the least valuable, and the heaviest part of the cargo. 4. That the captain consulted the officers. 5. The boat was apparently in imminent peril — nay, more in real immediate danger of loss. 6. The jettison was the only means of saving the boat. 7. The jettison was ordered by the captain. 8. The boat was by the jettison preserved. 9. The cai’go was stored on the deck according to general custom. The consequence is, that this is a loss to be met by general average, and not by the owners of the boat. The admitted evidence establishes all the foregoing propositions ; but if the evidence only conduced to establish these facts, they should all have been permitted to go to the jury, with proper instructions from the court, arising upon the facts. The exclusion of the evidence is complained of. The positive instruction of the court to find for the plaintiff on the question of jettison, is also complained of. Justice demanded the admission of the excluded evidence, and a full and fair trial by the juiy. The judgment for $3,858 48, was therefore erroneous.</p> <p>The pilot was a competent witness. The carrier is sued for an unjustifiable jettison, not for any act of the pilot, and he is no way responsible, though there may be a recovery.</p> <p>The defendants were not responsible for the loss in the molasses by leakage. The proof showed that they were shipped in bad order, hence the insertion of the clause, “not responsible for leakage or cooperage.” Even without such a clause, there was no responsibility for loss resulting from the bad condition of them when received, (Story an Bailments, sec. 492.) unless in case of gross negligence. {Reno vs. Hogan, 12 B. Monroe, 63.) The court properly instructed the jury on this point, and the cross errors cannot avail.</p> <p>A reversal is asked upon the errors of appellant.</p> <p>1. The plaintiff after setting out the bill of lading with the exceptions that the defendants were not liable for loss by the dangers of the river and fire, alledges that they delivered only part of the barrels and half barrels, and further, that the barrels -delivered were not in as good condition as when received, and that plaintiff was compelled to incur expense for cooperage, and that after deducting freight, there was due to plaintiff $4,129 39, for which he prays judgment.</p> <p>These statements, by way of breach, may be all true, and yet the defendants in no wise guilty of a breach of their contract, as set out in the petition, and shown by the bill of lading made part thereof.</p> <p>The plaintiff should have averred, - by necessary averments in his petition, that the defendants were not prevented by lire or the dangers of the river from delivering the cargo. In 1 Chit. Plead., 11 Am. Ed., 335, it is said that if the breach .vary from the sum and substance of the contract, and be either more limited or larger than the contract, it will be insufficient, as in covenant to repair a fence, except on the west side thereof, a breach that the defendant did not repair the fence, without showing that the want of repair was on the other parts of the fence than on the west side. The declaration would be held bad on demurrer, though it would be aided by verdict. It is essential when an exception or a proviso is introduced or referred to in the obligatory clause of an instrument, upon which is sued to negative the exception, restrictive of his liability in setting out the breach, otherwise, the declaration will be bad after verdict. The same author (Ed. of 1828, 1 vol. page 268-9) says : “But if such proviso or condition constitute a condition precedent, or if there be any other matter which qualifies the contract, or goes in discharge of the liability of the defendant, it must be stated.” And he illustrates the principle by various examples, amongst which is given the case of a carrier.</p> <p>The same author, (2 vol. page 366,) in giving the form of a declaration against a carrier by water upon a bill of lading, sets out the undertaking of a carrier to convey the goods from one place to another, and there deliver them to the plaintiff, “the dangers of the seas only excepted,” and after charging, by way of breach, the failure to deliver the goods, alledges “that no dangers of the sea did prevent him from so doing, but on the contrary thereof, the defendant being master of the ship, &c., so carelessly behaved and conducted himself, with respect to the residue of the goods, that by the mere carelessness and negligence, and improper conduct of said defendant and his mariners and servants, in that behalf, the said residue of the goods of great value, became and were lost to the plaintiff.” A second count is added without setting out any bill of lading, but charging the defendant with negligence, &c., in failing to deliver, &c. This position is sustained by Gould on Pleading, chap. 4, sec. 20.</p> <p>Cases may exist in declaring on a contract which 'contains a defeasance, where it is not necessary to state the defeasance. A defeasance is an instrument which defeats the force and effect of some other instrument, or deed, or estate. (Gr. Gru., T. 32, chap. 7, sec. 27.) If the defeasance be incorporated in the same deed or instrument it becomes a condition, upon the performance of which, the estate created, or thing to be performed, is thereby annulled and made void, which in pleading, as a general rule, should be shown by way of defence; but the rule in respect to contracts containing exceptions, such as the one now under consideration is different, for the reason that no liability was ever incurred by reason of the perils thus excluded. Under this view of the case, the court erred in not sustaining the demurrer to the petition.</p> <p>2. The answer of the defendant’s is a full response to the petition, and sets out a valid defence under the exceptions contained in the bill of lading, and the demurrer to it was properly overruled. Taking the statements of the answer as true, a complete justification for the jettison is made out; it was not necessary to detail all the circumstances which established the justification.</p> <p>3. The court did not err in its decision upon the question made in regard to the leakage from the barrels, on account of defect of cooperage ; the exception of liability on that account was made in the bill of lading. (See Reno vs. Hogan, 12 B. Mon., 63.) The proof showed clearly the bad condition of the barrels when shipped.</p> <p>4. No good reason is perceived why Jamison, the pilot, should have been excluded as a witness. The cases relied on by appellee’s counsel, are not applicable to a case like this; those were cases where the principal was sued for negligence and mismanagement of the agent, in which the latter was held incompetent to testify in behalf of his principal.— These cases will not apply. This suit is not brought against the principal for negligence or mismanagement of the pilot while in charge of the boat, but is an action for failure to deliver the goods, without a charge against any officer of the boat for negligence, or want of skill in the management of the boat, and consequently the pilot can have no interest in the result of the case. (Larin vs. Candi Ins. Co., 1 Wil. O. Rep., 223.) The pilot was held to be a competent witness in an action by the owners against the underwriters, for the loss of a vessel while in his charge.</p> <p>5. It is insisted for appellants, that the circuit court erred in rejecting the testimony offered by them, to prove that spars and anchors could not have been used to any purpose, and that it was an error to permit the plaintiff to read parts of his examination without reading the whole. The condition of a boat in distress, and all the surrounding circumstances, is necessary to be considered in deciding upon the most proper expedients to be adopted for her relief; as the sound practical physician varies his prescription according to the type of the disease of his patient, so will the experienced navigator be governed in the use of means to relieve his vessel. If a steamer in ascending the Mississippi or Ohio, while rising, should ground on a smooth level bar, spars and anchors would in general be the appropriate means of relief; but suppose the water to be out of the banks and falling, and the boat run on a log or other obstruction in the water some forty or fifty feet deep, and. the bow so raised as to cause water to enter at the stern, so fast as to justify the inference that she must sink in one hour, and the boat could be relieved by casting overboard one-thirteenth part of the cargo; but instead of that course, the commander set about rigging spars and anchors, which, if practicable at all, would require some three or four hours, would not such an officer be pronounced wholly unfit for his position? Yet such an one, when taunted for his lack of skill, might plead the judgment of the circuit court in this case, as an apology for his conduct. Whether under all circumstances it would have been judicious to attempt the use of spars and anchors, was a question of fact for the jury and not the court to decide; and the court erred in deciding otherwise.</p> <p>The court, by overruling the demurrer to the answer of defendants, in which is distinctly stated the impracticability of using spars and anchors for the relief of the boat, as a ground of defence, thereby recognized the competency of such proof in the defence, and that any attempt to do so, would have increased the peril. The court should have admitted the cross examination of witnesses bearing on this point, to have been read to the jury with other parts of the depositions which were read; though it consisted of opinions, it was competent, being the opinions of experienced navigators. (Walker vs. Protection Ins. Co., 29 Maine Pep., 320, and authorities there cited; Matton vs. Nesbit, 1 Carr. Payne, IQ, found in 11 Con. Com. Law Pep., 318 ; especially the opinions of Abbott, justice on this point.)</p> <p>6. It is denied that any case can be found, where the master or carrier has been held liable for the value of goods cast overboard justifiably, for failing to hold possession of the remainder of the cargo, until a general average estimate is made. Thatwas the civil law rule, and the average was to be computed at the port of destination; but is is denied that it has ever been followed in England.or America.— It would be impracticable to enforce such a rule in the United States. Suppose the case of a steamboat at Pittsburgh, or Louisville, taking on board a cargo, parts of which are live stock, and for ports on the whole line of the Ohio and Mississippi, even to the port of New Orleans, must the vessel convey all to the last named port to make the general average? Or, suppose a steamboat leave New Orleans with goods, groceries, tropical fruits, &c., for towns, villages, and farms, on the Mississippi and Ohio; a jettison is necessary before reaching Natchez; is the vessel then to be run to the place of destination, say Louisville, conveying the remainder of the cargo, in order to make the average estimate? It cannot be so. A fair interpretation of the authorities on this subject will lead to no such absurd conclusion. Stephens in his Treatise on Average, page 51, says it is frequently asked whether the master can refuse to deliver the goods to the merchant until he he is satisfied. This is so well answered by Potheir, that I cannot do better than to quote his words: “Goods cannot be retained for freight, and contribution ought not to have a greater privilege than freight; but though the master cannot retain the goods, he may seize them on the quay, until security is given: nevertheless, if the merchant is in good credit, to deliver the goods, and this being the custom, the master is not liable for his insolvency.” This, says Stephens, is also the custom with us, but the master may if he choose, insist upon the consignees entering into an average bond; such an instrument is, however, but of little use, unless the names of the arbitrators be inserted, as it will be an obligation to do only what the law would compel them to do. — • {liallet vs. Bansjield, 18 Vez., 187; Abbott on Shipping, Am. ed. of 1850, 507-8.) See Phillips on Gen. Av. and Ins., 210, where it is clearly laid down, that though the master may retain for general average, he is not bound to do it. Also, U. S. vs. Wilson, 3 Sumner, 308. In (Simmons vs. Loder, 2 Barn, dp Cross, 805, and Scaif vs. Tober, 3 Barn. <§• Adolphus, 523, the right of the master to retain is recognized, but no intimation ■is given of his liability if he fail to do so.</p> <p>But the plaintiff in his petition does not claim the benefit of an average adjustment of the loss ; that is not the object of his suit, and he cannot insist upon a recovery on that principle; and disclaimed in the circuit court, and now for the first time relied upon in this court.</p> <p>The exception of the dangers of the river contained in the bill of lading, must be taken as applicable to the dangers resulting from the navigation of the river in the ordinary way, with such reasonable care as a prudent man would use in regard to his own property. In the case of Collier vs. -Valentine, 11 Mis. Rep., 299, the doctrine is recognized that each case, in respect to diligence or negligence, must be determined very much by its own particular circumstances, growing out of the navigation of our rivers, and the result tested by the course usually pursued by skillful pilots. In Hart vs. Allen, 11 Watts, 115, the .court said that it was not sufficient for the plaintiff to prove a defect in the vessel, buthe must also show that that defect in some way contributed to the loss-See also, Fairchild vs. Slocum, 19 Wend., 32.</p> <p>1. The first question to which I will call the attention of this court is, whether or not the court erred in instructing the jury ?</p> <p>The testimony of a great number of witnesses, all of whom were men of skill and experience in the navigation of the Mississippi and Ohio rivers, as pilots or captains, concur — 1. That the middle channel at Montezuma bar, in the condition of the river when the accident occurred, was the proper channel. 2. That spars and anchors are of no use where the sand is soft. 3. That a boat grounded, as the Glendy Burke was proved to be, with a strong current running under her midships, would, unless speedily relieved, break in two and be lost. 4. That new formations of sand are suddenly made in the Mississippi river which baffle the skill of the most experienced pilots. 5. That the middle channel is safer for ascending boats than the bend channel.</p> <p>The other pilot, Smith, the mates, and engineers, were examined, all of whom sustain the evidence of Jamison, as to the occurrences of the night, and the absolute necessity of throwing a part of the cargo overboard to save the boat and the remainder of the cargo.</p> <p>What is the law arising on these facts ? Chancellor Kent says: “if goods be destroyed by necessity, as by throwing them overboard from a vessel or barge for the preservation of the vessel and crew in a tempest, the carrier is not liable.” (2 Kent, 603.) Again: “It is often a difficult point to determine, whether the disaster happened by a peril of the sea, or unavoidable accident, or by the fault, negligence, or want of skill of the master. If a rock, or sandbar be generally known, and the ship be not forced upon it by adverse winds or tempests, the loss is. to be imputed to the fault of the master. But if the ship be forced upon such rock or shallow by winds or tempests, or if the bar was occasioned by a recent and sudden collection of sand, in aplace where ships could before sail with safety, the loss is to be attributed to a peril of the :sea which is the same as the vis major or casus fortuitous ■of the civil law.” (3 Kent, 217.)</p> <p>Judge Story says: “The case of a jettison at sea, to save the vessel from foundering, and to preserve the lives of the crew, is (as we shall presently see,) a loss by the act of God, although it is accomplished by the immediate agency of man.” (Story on Bailments, sec. 525.) “But there are also cases, where the carrier’s own agency is concerned in the loss, which, however, is by law deemed excusable. Thus, in cases of throwing goods overboard to lighten a ship or boat, and preserve life, the carrier will be excused, if it has arisen from necessity. Thus, if a ferryman should, in a storm, throw overboard even a box of jewels, if it was done from absolute necessity to save life, he would stand excused. But, if it was done without necessity, or rashly and imprudently, it would be otherwise.” {Ibid, sec. 575.)</p> <p>It is admitted that the owners of steamboats on the western waters are common carriers, and are liable as such, but their liabilities may be modified or restricted by the terms of the contract of affreightment. The argument on the other side is, that the plaintiffs in this case are liable as common carriers to the same extent as if no bill of lading had been executed, and that nothing will excuse them for a loss in this case, unless it was occasioned by an act of God; that no case of jettison can be found where the act was justified or excused, if the necessity was caused by human agency.</p> <p>The authorities do not sustain that position. In the case of the Columbian Insurance Company vs. Ash-by, SfC., 13 Peters, 331, the master of a vessel in a storm voluntarily run the vessel ashore, and she was lost, but the cargo was saved. The court said it was a proper case for general average. In the opinion in that case, Judge Story lays down the principles which authorize a jettison. 1. “That the ship and cargo should be placed in a common imminent peril. 2. That there be a voluntary sacrifice of property to avert that peril; and, 3. That by that sacrifice the safety of the other should be presently and successfully attained” — page 338. The court say, “that whatever is sacrificed voluntarily for the common good, is to be recompensed by the common contribution of the property benefitted thereby” — page 343.</p> <p>In the treatise on contracts by W. W. Story, it is said: “In cases of carriage by sea, the bills of lading often contain an exception of responsibility for losses arising from ‘perils of the sea.’ This term, which would naturally include only dangers arising immediately from the sea, and peculiar to it, has been construed to include within it, captures by pirates; losses by collision, where there is no blame; destruction of goods at sea by rats where there is a cat on board; and all injuries and damages resulting to goods from the effect of storms and tempests upon the ship. A common carrier would not, therefore, be responsible for such injuries and losses.” {Story on Contracts, section 754.)</p> <p>Again: “A common carrier is not, however, responsible for losses arising from the ordinary wear and tear of transportation, or for deterioration in quantity or quality, arising from any inherent tendency in the goods to decay or damage, as for leakage and firmentation, or rotting without his default, or for injury or damage resulting from the default of the owner or shipper, such as defective packing; so, also, there are cases of great exigency, where the loss is occasioned by the act of the earner, in which the law, in consideration of the necessity of the case, excuses him. Thus, if he make a jettison of goods, to lighten a ship or boat in danger of foundering, or to preserve life, he will not be responsible for the loss.” (Story on Contracts, sec. 753.)</p> <p>The same author says: “ ‘Dangers of the river’ is also another phrase by which common carriers on water sometimes limit their responsibility; and it has received nearly the same definition from the court as ‘perils of the sea.’ Some new causes of loss would, however, come under this term, not strictly ‘perils of the sea,’ such as hidden obstructions in the river, newly placed, and not only not known to be there, but of' such a character that human skill or foresight could not have discovered and avoided them.” (Story on Contracts, sec. 754, b.)</p> <p>'■ The supreme court of Illinois decided that “the law is well settled, where goods are necessarily thrown overboard in a tempest, to preserve the vessel and crew, that it is a loss of inevitable accident, or, as it is usually termed, the act of God, which excuses the carrier.” (Gillett vsv Ellis, 11 Illinois Rep., 580.)</p> <p>In the case of Collier vs. Valentine, 11 Missouri Reports, 299, the principle for which plaintiffs in error contend, was expressly decided. The steamer Oregon left St. Louis for New Orleans, and about fifty miles below the former city, she ran with her bow against a sand-bar, and by the force of the current immediately swung round. In swinging, the side of the boat, near the stern, or between the after-hatch and the stem post, struck a snag, which tore a hole in her, and then she swung over the snag, up against" the bar. The boat and much of the cargo, including the plaintiff’s bacon, was lost. The place at which the vessel struck was a narrow channel, with a bar on one side and a swift current on the other. The captain, who also acted as pilot, was at the wheel when the accident occurred, and was reputed to be one of the best pilots on the river. The testimony shows that the boat was in the channel, but bearing to the right to avoid the snags, the bow struck the bar, and then the swinging became inevitable, and the loss was the necessary consequence. Upon these facts the judges of the supreme court of Mis-i souri were unanimously of the opinion that the. owners of the boat were not liable for the Joss of the bacon which plaintiff had shipped on her. The same Gourt decided that the master of a steamboat carrying wheat, which was wet by inevitable accident, is not liable for damages because he did not dry the wheat. (Steamboat Lynx vs. King, 12 Missouri Rep., 272.)</p> <p>The supreme court of the United states, in the case: of Clarke vs. Barnwell, 12 Howard, 272, decided, that where goods are shipped and the usual bill of lading, given, “promising to deliver them in good order, the dangers of the seas excepted,” and they are found to be damaged, the onus projbandi is upon the owners of the vessel, to show that the injury was occasioned by one of the excepted, causes. But although the injury may have been occasioned by one of the excepted causes, yet still the owners .of the vessel are. responsible', if the injury might have been avoided, by the exercise of reasonable skill and attention on the part of the persons employed in the conveyance of the goods. But the onus probandi then becomes shifted on the shipper to show the negligence.</p> <p>This case establishes the principle, that if the loss Was occasioned by the perils of the sea, there is no responsibility on the vessel, unless negligence is shown, and that must be done by the shipper or owner of the goods.</p> <p>Now I submit to the court, whether new formations of sand and hidden snags in the Mississippi river, should not be classed under the head, “dangers of the river”? I think I have shown that such is the doctrine of the present day.</p> <p>I think the doctrine upon the subject of the responsibility of common carriers by water, may be summed up thus: I. If the bill of lading contains no exceptions, th’en nothing excuses the carrier but the act of God or the public enemies. 2. If if contains the exception, “dangers of the river,” the carrier is not responsible, if he can show that the loss was in Consequence thereof; and to establish which the' onus is on the carrier. 3. That although the loss was occasioned by the “dangers of the river,” yet the plaintiff may show negligence of the carrier, but in such case the burthen of proof is thrown on the plaintiff.</p> <p>The evidence in the record establishes, beyond question, that the accident which occurred at Montezuma bar, was occasioned by the “dangers of the rivér,” and that defendants used due diligence and caution to avoid it. But whether or not, it was a question of fact to be decided by the jury and not by the court. The court, therefore, erred in giving a peremptory instruction to the jury to find for the plaintiff. The supreme court of New York in Colt vs. McMcchen, 6 Johnson, 159, and in Elliott vs. Rossell, 10 Johnson, 1, and the supreme court of Tennessee in Gordon vs. Buchanan, 5 Yerger, 72, have expressly decided that whether a carrier had used due diligence and caution to avoid obstructions, is a. question of fact for the jury to decide.</p> <p>2. In the progress of the trial, the circuit court excluded evidence offered by the defendants, which seems to me was relevant and proper to be considered by the jury.</p> <p>I will give a few examples. Jamison, the pilot, was asked this question by defendants’ counsel: “Whether spars and anchors could or could not have been used to any advantage in getting the boat, off?”' Plaintiff objected to the question, and the court decided it was incompetent. The witness was then asked this question : “In the condition the boat was in, what other means of relief was there to get the boat off?” The court rejected the question as incompetent. This question was asked the witness: “Whether or not the use, or the attempt to use the. spars and anchors would or not have increased the peril?” Plaintiff objected to the question as illegal, and the court sustained the objection, and would not permit the witness to answer it.</p> <p>Brashear gave his deposition in which, after stating there had been a consultation between the captain, Jamison, the pilot, Edward Taylor, the first mate, and witness, the second mate, says: “That after examining the condition the boat was in, as carefully as it could be done, we come to the conclusion, unanimously, that there was no other means of saving the boat, which we could possibly resort to, except to throw out so much of the freight on board as would lighten and float her off.” The witness was then asked: “Whether or not anything was said in the consultation in regard to spars, whether they could be used to any advantage? State all that passed on the subject.” The court would not permit the question to be answered. The witness was then asked : “Whether or not anything was. said in the consultation in regard to the peculiar danger the boat was in, as to how she might be lost, and as to whether that was an event soon to hap pen?” This question and the answer to it were excluded by the court from the jury.</p> <p>These are only a few of the many rulings of the circuit judge against the defendants. It will not require any argument to prove to this court that some, if not all, of the rejected questions, were pertinent to the issue to be tried by the jury. All that occurred at the time of the accident should have been given to the jury, to enable them to decide whether the necessity existed for the jettison. There are some minor questions presented in the record, which have been noticed by my co-adjutors in their briefs, and need not be repeated by me.</p> <p>Upon the whole record, the counsel for the plaintiffs in error, defendants below, insist: First. That the evidence in the record shows that the throwing overboard of the molasses was an act of necessity, which was not caused either by the negligence or lack of skill of the officers on board the Glendy Burke ; that it is embraced in the exception in the bill of lading, “dangers of the rivers.” Second. But whether the evidence is or not conclusive, it certainly conduced to establish the defense set forth in the answer; and that being the case, the j ury were the constitutional triers of the facts. Upon these two points alone, the judgment of the circuit court is erroneous and should be reversed.</p> <p>The court will perceive from the record, that the answer was filed in the clerk’s office, and before the first term of the court. Bustard’s counsel predicated the motion for a judgment, as to all but leakage and cooperage, upon the insufficiency of the answer. That motion was not made before the answer was filed. Injustice is done to Bustard’s counsel, as we respectfully suggest in the opinion as-now drawn, in leaving them to make the motion at thejtime indicate ed in the opinion.</p> <p>To the doctrine of jettison, as laid down in the opinion, we do not, in the main, object. But in several places the court says that the current of the river is a vis major that may lead to results that will justify a jettison. Is this so? Is not a current usually found in a rising or falling river at a given place, an ordinary and known danger of the river ? The testimony in this case shows that a carrier does know the course and effect of a current at a given place. In this case, such knowledge on the part of the carrier is a fact, not a presumption of law. Can he then be heard to say, at a stage of the disaster, either before the first striking or after it, that he had miscalculated the effect of, or was overcome by the force of it ? (See Williams vs. Branson, 1 Murphy, 417, and Murphy, Brown, ¿y Co., vs. Staton, 3 Munford, 240, and especially Mr. Wirt’s argument in the latter case.)</p> <p>The same argument will hold good as to a high, strong, and steady wind. The carrier who enters a narrow and difficult pass in a strong wind, ought not to be permitted to acquit himself of a disaster, by reason of the effect of winds and currents, which were known to him when he entered. If overtaken in the pass by an overwhelming gust or squall, it would not be an ordinary accident. If, after striking the first time, and there was no injury from such striking, and no danger in remaining there until daylight, or the wind subsided, can a carrier say that he was overwhelmed by darkness, currents, and wind ? All these were known and impending dangers, not sudden and unexpected.</p> <p>We think that the opinion as now drawn, ought to be essentially modified, in each of these particulars.</p> <p>We did not mean to say in our argument, as the court seems to have understood us, that it could not be shown without a trial, that spars and anchors could not have been used to advantage. We meant to say that it could be shown that spars and anchors were not commonly resorted to on quick-sand bars, and were of no use there. So we understood the court below. If spars and anchors are commonly used and resorted to on such bars, then the carrier cannot excuse himself for not trying them. There is nothing like trying. If any sensible, discreet, and skillful boatman would say that spars and anchors could have been-used with benefit, or that it is usual and common under such circumstances, and in such a place, to have tried the effect of them, the carrier ought to have made the experiment.</p> <p>We think that there is but little difference betwixt the opinion before us, and that of the court below, as we understood it. The court below offered to admit proof that spars and anchors were not resorted to on quick-sand bars, but. excluded the proof as to their being of no use in a case hypothetical in the question. The opinion is somewhat indefinite, or not so- definite as to give a practical rule for another trial.</p> <p>With great- deference we still suggest that the answer is not a full defense.</p> <p>The suit is for failure in a carrier to do his duty. For defense the carrier says that he discharged his duty. Now, what was the duty discharged ? He committed a justifiable jettison. Is his duty fully discharged, when he throws a part of the cargo into the river, and saves the boat and the remainder of the cargo ? Was it not his duty to bring up and deliver what was not sacrificed? Was it not equally his duty to render an account, a general average account?</p> <p>We think the authorities cited in the written brief heretofore filed, are express to that effect. Suppose that the carrier had failed to deliver the cargo of Bustard that was saved, and had convei’ted it to his own use, could we not have recovered for it in this action ? To deliver what remained after the jettison was his plain duty. To make: up a general average account was also his plain duty. If the carrier has failed to do that, Bustard cannot recover of the carrier, because the jettison was justifiable and regular, and he cannot recover his average, because the carrier has failed to render the necessary and proper account.</p> <p>To go acquit the carrier must do his whole duty.</p> <p>It may be inferred from the opinion, that the carrier may be sued in another action, for a failure to discharge the duty of rendering an account. This is cutting up a contract into parts. The carrier is sued for a breach of his duties or obligations; he pleads a fulfillment in all but one important and vital particular, and says, that as to that the shipper shall be answered, when he sues for its non-performance. The duty not performed flows from, and is of necessity connected with the original contract. The carrier ought in his answer, to justify as to the jettison, show a general average account, and let judgment go for his share of the general average.</p> <p>The brief of Messrs. Speed & Worthington, is quite full upon most of the points involved in this case,but I still desire to add a few suggestions.</p> <p>1. The answer discloses the fact that the bo at struck on “Montezuma Bar,” that is on a known obstruction. This being so, the carrier is liable, notwithstanding the other general statements of the answer, and not •withstanding the exception of “dangers of navigation’ contained in the bill of lading. Such an “exception” does not excuse a carrier from liability, from a loss arising from his vessel striking on a bar or other obstruction, unless it be a hidden one, newly placed in the river, and “of such a character that human still or foresight could not have discovered or avoided it.” {Gordon vs. Buchannon,5 Yerg. Term. Rep., 72; Turney vs. Wilson, 7 Yerg., Tenn. Rep., 340 ; Williams vs. Branson, 1 Mur. N. C. R., 417, Angel on the Law of Carriers,p. 168.) These authorities contain,! think,a fuller exposition of the exception commonly contained in bills of lading, than can be found elsewhere.— The attention of the court is especially invilted to the cases of Turney vs. Wilson, and Williams vs. Bran-son. In the last case the court say: “If the situation of the rock or shallow1, be generally known, and the ship be not forced upon it by adverse winds or tempests, the loss is to be imputed to the fault of the master.”</p> <p>There is no intimation in the answer of Bustard, that the “ Glendy Burke ” was forced upon “Montezuma Bar” by adverse winds or tempest, and therefore the answer was bad; and upon the facts disclosed by it, the plaintiff was entitled to recovery.</p> <p>The statement contained in the answer, that the grounding was unforeseen, unavoidable, &c., is a statement of a conclusion of law, and therefore bad. If this sort of pleading was good under the old system, which consisted rather of statements of conclusions of law than of facts, it is not good under the Code of Practice. Under the old system, nil debit was a good plea in certain actions of debt, and non assumpsit in actions of assumpsit. But these pleas are obviously conclusions of law upon facts, and since the Code requires the facts to be set forth in the pleadings, such pleas or their equivalents, would be bad under the Code. The decisions under the New York Code have been in accordance with these views.— (See Van Suntwood's Pleadings, 259; McMurray vs. Thomas, 5 How. P., N. Y. R., 14; 8 Barb. S. C. R., N. Y., 250.) Now whether the grounding was unforeseen or not, or unavoidable or not, depends on the facts, and these facts the Code requires should have been set forth.</p> <p>But the facts which might have justified the grounding, to-wit: — that it occurred on a newly formed bar, or was caused by winds or tempests, are not set forth in the answer, and therefore it is bad; nor are they disclosed by the proof, and therefore the plaintiff is entitled to judgment.</p> <p>2. The answer sets forth that the boat “run on Montezuma Bar. The defendants immediately endeavored to back her off with the engines, and in doing so, she swung broadside on the bar and stuck fast, and was thus grounded ; she run on the upper ■end of the bar, and swung with her broadside on it.” The obvious meaning of this is, that the bow of the boat never got free from the bar on which it struck, but that the bow stuck at the place it first struck, and that the boat swung around on the same bar. But it was attempted to be established by the proof, an entirely different state of facts. It was attempted to be proven that after the boat got loose from the bar she first struck, she floated back and struck her stern on another bar and then got fast; and that in the opinion of of witnesses, spars and anchors could not have been used there. It seems to me, that all such proof was irrelevant and mconsistnet with the answer.</p> <p>3. Witnesses generally are required to state facts; these opinions are not ordinarily allowed to go to the jury. But when the subject of inquiry is a matter of science or peculiar skill, scientific, or skillful persons are allowed to give their opinions. However, to enable them to express an opinion, it must first be established to the satisfaction of the court, that they are really skilled in the matter about which their opinion is asked, and then their opinion must be based upon the facts proven, and not partly upon facts proven, and parity upon facts not proven.— Now, in this case, considering that the getting a boat off a bar is a matter of skill, it was not, I think, sufficiently shown that the witnesses who were asked their opinion as to the practicability of using spars and anchors,-were really skilled in the business about which their opinion was asked; and in the question propounded to them, facts were assumed to exist, which were not set forth in the answer; which were not proven; and which did not exist in fact. I more than doubt, whether it is good practice to allow a hypothetical question to be propounded to a witness, before the facts which prove the hypothesis are -established, because such practice may tend to con-embarrass, and mislead the jury. The facts assumed might not be thereafter proved, and yet few juries could exclude from their minds, all traces of the answers to the hypothetical questions; indeed, the false hypothesis may be so often repeated, that the jury might assume the hypothesis to be true.— The better and safer practice, and the only one that is tolerated, is first to establish the facts and then examine the experts. But, be this as it may, if a party has not been allowed to put an hypothetical question, he has not been prejudiced, if the facts hypothecated were not at some stage of the case proven. Now in this case, all the facts assumed in the hypothetical questions propounded by the defendants to their witnesses, were not proven, and hence they were not prejudiced, even if there had been no other objection to the question.</p> <p>I have not intended to argue the points here presented, but simply to state them, relying that they will be sufficiently apprehended from their statement.</p>

The facts of the case are fully set out in the opinion of the court. — Rep. The main questions involved in this case may be stated as follows: 1. Held: even though there was an unbroken black line in the plan of the town,on the side of Water street next to the river, and that the intervening space was not divided into lots or squares. But the evidence in this record does not render this principle applicable.