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Morris v. Huntington.

cannot be made, it appears to me untenable. The second patent is for fourteen years, and that being within the time limited by the act of Congress, it is good upon the face of it. And the objection, that the patentee has enjoyed the benefit of the invention for a part of the fourteen years under a prior patent, not being amongst any of the objections which by the acts of Congress may be set up by third persons to avoid the patent, the objection cannot be made after the expiration of the fourteen years, and so in this case the patentee would have the benefit of his patent-right for twenty years instead of fourteen.

On the whole I am of opinion that the second objection is fatal, and that a nonsuit must be ordered.

But the counsel of the plaintiff suggesting that it had been doubted whether a writ of error returnable in the Supreme Court would lie on a judgment of nonsuit, and praying the Court to charge the jury on the points discussed, the Court accordingly directed a verdict for the defendant, with liberty to the plaintiff to move for a new trial on the points of law.

Ruggles v. Bucknor.

RUGGLES v. BUCKNOR.

One chartered the hold of a vessel for a voyage, covenanting to pay freight,

the owner appointing and paying the master and crew, and fitting the vessel. A third person shipped goods, consigning them to the defendant, who, on receiving them from the master, promised to pay the freight. Held, that the charter party did not deprive the owner of his liea for the freight, and that the defendant became liable to the owner for the freight by his acceptance of

the goods. Whether the owner has a lien under any circumstances on a part of the cargo

not delivered, for the freight of the whole ? Quere. If it appear on the face of a deposition taken under the act of Congress, that

the officer taking the same was authorized by the act, it is sufficient in the first instance, without any proof that he was such officer.

This was an action of assumpsit for the recovery of freight.

The defendant pleaded the general issue, with notice of set-off for money paid, &c.

At the trial a case was made for the opinion of the Court, and now argued.

On the 13th day of February, 1822, the schooner Tassel, owned by the plaintiff, then lying in the port of Charleston, S. C., Benedict Dayton, her master and agent, chartered her hold to Joseph T. Weyman to perform a voyage from Charleston to Blakely, Alabama, and thence to New-York.

By the charter party, Dayton covenanted, in consideration of the freight therein mentioned, to receive on board his vessel, from Weyman, his agents or assigns, a full cargo, and carry it to Blakely, and to deliver it on her arrival to the agents or consignees, and then to receive on board from the agents or assigns of Weyman another cargo, and carry it to New-York, and on her arrival make a true delivery of her

Ruggles v. Bucknor.

cargo, agreeably to the bills of lading signed for the same, with the agents thereof. Weyman, on his part, covenanted to pay Dayton 1300 dollars for the voyage to Blakely and thence to New-York, without primage, and bound himself, his executors, &c. and the cargo to be laden on board, for the performance of his covenant.

The cargo shipped at Charleston was to be delivered, according to the terms of the bill of lading, to Thomas Strang, or his assigns, they paying freight for the goods according to the charter party.

On the voyage from Charleston to Blakely, the vessel suffered so severely from a storm, that she was obliged for safety to put into Savannah, where a protest and survey were made, and the vessel repaired, and a computation made of the general average.

The cargo was delivered, on the arrival of the vessel at Blakely, to Strang, agreeably to the bills of lading. After its delivery, Strang came on board the vessel in company with James W. Goodman, who was introduced to Dayton, the master, as owner of the cargo which had been delivered at Blakely. Goodman told Dayton that it would oblige him if he would take a bill on his friend in New-York, for the general average incurred by the cargo on account of the repairs at Savannah, instead of the cash. To this request Dayton acceded, and also settled the general average with Strang, as agent for Goodman.

Strang put a cargo of cotton on board for New-York, a part consigned to T. M. Ehrick, and the remainder to the defendant. By the bill of lading of that part consigned to Ehrick, it was expressed to be shipped by Strang on joint account with James W. Goodman & Co. and Ehrick, and Ehrick was to pay freight, at the rate of two cents per pound, to the defendant. The terms of the bill of lading of the other part of the cargo were, that it was shipped by Strang to the defendant,

Ruggles v. Buckoor.

on account of James W. Goodman & Co. “the defendant paying freight for said cotton as per charter party.”

The bill drawn by Goodman on the defendant for the general average, amounting to 325 dollars, was presented for payment by Dayton on his arrival in New-York, but the defendant hesitated about paying it, and required the charter party and bills of lading, which were delivered to him, and remained in his possession some days previous to the delivery of the cargo. He said, “he had orders not to pay the bill, but would pay the freight when the cargo was delivered, but wished a short time to consider or get advice relative to the bill.” At the time appointed, Dayton called on him for his answer, when he paid the bill. The master was obliged, on account of the quarantine regulations, to land his cargo at a store in Brooklyn. He took receipts for it of the person with whom it was stored, and presented the defendant with the receipt for his part of the cargo, and demanded of him the freight. The defendant required the receipt for Ehrick's part, as he said he had to settle the freight with him. This was also delivered to him, and he said he would pay the freight in an hour or two. When Dayton called on him for it, he said he had received orders to deduct the amount of general average on the cargo from the freight.

The above facts, except such as are derived from the papers offered in evidence, were proved solely by a deposition of Dayton, taken pursuant to the provisions of the 30th section of the judiciary act, which was objected to by the defendant's counsel, “ on the ground that the signature of the magistrate, or at least the fact that the person before whom the deposition purported to have been taken, was such magistrate as is stated in the certificate, ought to have been proved.” This objection was overruled.

At this stage of the evidence the defendant's counsel also moved for a nonsuit, which was refused by the Court.

Ruggles v. Bucknor.

Thomas Carpenter, a witness for the defendant, was then called, who testified, that he was a clerk of defendant, and had been requested by the latter to take notice of his conversations with Dayton. Witness' impression was, that he had heard all that passed between them, but there might have been interviews at which he was not present, as he sat in a front and defendant in a back room. He had heard defendant promise to pay the freight, deducting the amount of the bill of exchange, but had never heard him promise to pay it without such deduction. He stated that this promise was made after the vessel was discharged. He also proved that Ehrick had paid the stipulated freight of his consignment to the defendant, who had credited Goodman & Co. with it, and that they and Weyman acted together in the business.

The single fact, whether the defendant did make such express promise to pay the freight as is above stated, was submitted to the jury, who found that it was made, and also, by consent of parties, found a verdict of 1,374 dollars 8.cents for the plaintiff, subject to the opinion of the Court, and to be reduced by deducting the sum paid for general average with interest; or general judgment to be entered for defendant or judgment of nonsuit, as the Court might direct.

H. D. SEDGWICK for the plaintiff.a . !
D. S. Jones, for the defendant, contended,

1. That the deposition of Dayton ought to have been rejected, and the plaintiff nonsuited.

2. That the plaintiff's remedy was against the charterer; at any rate that he was entitled to recover against the defen..

a Cited the following cases, as to freight under a charter party. 2 Show. 443.; 13 East, 399.; Id. 565.; 3 Taunt. 307. ; 1 Maule and Selw. 157. 573. ; Cowp. 143.; Lawes on Chart. Party, 229.; 3 Maule and Selw. 303.; 4 Id. 288.; 7 Taunt. 84. ; 8 Id. 280.; 2 Barn. and Ald. 510. ; 3 East, 384.; 2 Id. 460.; 2 Brod. and Bing. 414.; 18 John. 157.; 6. Id. 335.

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