the yard and apparatus; and, certainly, if this is the true character of the contract or transaction, there would be great difficulty in upholding the jurisdiction. On the other side, it is contended that the service rendered is a service in the repairs of the vessel, and is as much a part of them as the work of the ship-master, or the materials furnished by him.

There can be no doubt, that in the cases where the ship-master, owning the ship-yard and apparatus, is employed to make the repairs, the service in question would enter into and become part of the contract, and thus be the appropriate subject of admiralty jurisdiction. And the question is, whether any well-founded distinction exists between a transaction of that character and the present one. The owner of the yard and apparatus, together with his hands, superintends and conducts the operation of raising and lowering the vessel, and also of fixing it upon the ways, preparatory to the repairs.

The service requires skill and experience in the business, and is essential in the process of repairs. I do not go into the question whether this is a contract made, or service rendered, on the land or on the water; it undoubtedly partakes of both; for, I am free to confess, I have not much respect for this and other like distinctions that have sometimes been resorted to for the purpose of ascertaining when the admiralty has, and has not, jurisdiction. The nature and character of the contract, and of the service, have always appeared to me to be sounder guides for determining the question.

Although I agree a distinction may be made between this case, in the aspect presented, and that of the case where the ship-master is employed to make the repairs, I am inclined to think that it is not a substantial one, and that to adopt it would be yielding to a refinement that I am always reluctant to incorporate into judicial proceedings. A distinction, to be practical, should be one of substance, and that would strike the common sense as founded in reason and justice.

I must, therefore, overrule the point of jurisdiction, and affirm the decree.

HOWARD v. COBB.

Passenger contract — Non-performance at the day- Excuse.

NELSON, J.-This libel was filed by Cobb against the respondents, to recover for a breach of contract to carry certain passengers in the steamship New Orleans from Panama to San Francisco, the vessel to leave on her trip in the month of April, 1850. The fare paid was $150 for each passenger, and an engagement given for the passage in the form of a ticket. This suit involves the amount of ten tickets. The ten purchasers presented themselves

at Panama on the 1st of April to take their passage, but the Orleans had not then arrived, and did not till the month of August following. She had left the port of New York in February, but had encountered rough and stormy weather, and was obliged to put into St. Thomas for repairs, where she was detained a long time, which was probably known to the passengers at Panama. The brig Anna, belonging to the libellant, was at this place in April, and sailed thence to San Francisco on the third of the month. The ten passengers whose tickets are in question took passage in her, and transferred these tickets to the master, which were received for their fare. This libel is filed to recover the amount, $1500, and interest. The court below decreed in favor of the libellant.

It is objected that the suit is not in the name of the original parties to the contract for the passage; but it is every day's prac tice in admiralty to allow suits to be brought in the name of the assignee of a chose in action. The libellant is the real owner of the tickets, and, therefore, the proper person to bring the suit, and in his own name.

It is also objected that the disabling of the New Orleans by stress of weather excuses the fulfillment of the contract at the time provided for. How this might be in a case where the passenger was on the vessel at the time of the casualty, causing delay in the voyage, it is not now necessary to determine. Certainly, until the passenger become connected with the vessel as a passenger on board, he is in no way subject to her casualties and misfortunes occurring through stress of weather or otherwise. He is a stranger to her. The contract bound the owner to have his vessel at the place and time designated; that he had stipulated for as a part consideration for the price paid, and assumed upon himself the responsibility of performance; and the failure operated a breach of the engagement, and subjected him to a return of the price paid. The winds and waves or weather are no excuse for the non-fulfilment of a contract as to the time of the commencement of the voyage. If these circumstances had been intended as elements of it, they should have been expressly provided for by the owner, and then all parties concerned would have under stood it.

It is said that the passengers should have waited the month of April, and that the owner had the whole month to furnish his vessel there. Admitting that he had the month, the utmost that can be claimed is, that the passengers took the risk, if the vessel arrived within the month, of losing their right to demand a return of the fare. There was no abandonment of the voyage, for the tickets for the passage money were appropriated to the completion. of it. The passengers, doubtless, knew the disabled condition of the Orleans, and that she could not arrive at Panama in time to fulfil her engagement; and it would have been an idle act to have waited the month, especially as there seems to have been no pro

vision made by the owners for a substitution of another vessel, nor indeed, for aught that appears, any interest or concern taken in the matter.

The decree below I think right, and it must be affirmed.

September 12. THE THOMAS MARTIN.

Collision - Lights.

The Thomas Martin was libelled by the owners of the Industry for loss of the latter vessel off Great Egg Harbor, on a cloudy night in May, 1849. The Industry was on the larboard tack, and had a bright light in her forerigging, which was seen by the crew of the Martin about fifteen minutes before the collision. The Martin had no lights, and was seen by the crew of the other vessel only a few minutes before the collision. Both vessels luffed. In the District Court the libel was dismissed, because the Industry was bound to give way, and should have ported her helm.

Held, both vessels were in fault. The Industry for the reason above given, and the Martin because she ought to have shown a light after discovering that of the Industry.

On this point NELSON, J. said: - But I am unable to concur with the court below in the other branch of the case, namely that the Martin was not in fault. I do not intend to disturb the general usage that prevails both in narrow rivers and in open seas, that sailingvessels are not bound to carry lights when under way at night. This usage has long prevailed, and has been recognized to a certain extent by the courts generally in this country and in England. It was said, on the argument, that the rule had been recently changed in England by the Trinity Masters. The soundness and propriety of the usage have often been questioned heretofore by eminent judges both in England and in this country. The fault, I think, chargeable upon the Thomas Martin, is her neglect to show a light after she discovered the light of the Industry. If she had done so, there is every reason for believing the collision would not have occurred. As we have already shown, at this time the two vessels were from two to three miles apart, and within this distance, while running with the combined speed only of ten or twelve miles the hour, if each vessel had seen the other, it would have been strange if they could not have avoided the meeting. Although the night was not unusually dark, yet the sky was so overcast and cloudy that it is admitted a vessel could be seen without a light not exceeding half a mile. While, therefore, the hands on the Thomas Martin had fifteen minutes more time, and the distance of some two and a half miles running, within which to adopt the proper measures for avoiding the Industry, the hands on board of her had only some three minutes time, and half a mile's distance, within which to adopt the like measures. The practice of showing lights when a vessel is approaching in a dark or cloudy night, is common among

prudent and skilful navigators, and has frequently been a subject of commendation by the courts, and taken into consideration in determining cases of this description. Its fitness and propriety are too obvious to require illustration or argument. This case furnishes a striking exemplification of its necessity, and of the misfortune attending its neglect. The danger was impending almost at the moment of the discovery of the Thomas Martin, and this from neglect in not showing a light at the proper time.

Supreme Court. First Judicial District. General Term. September, 1856.

Before ROOSEVELT, CLERKE, and WHITING, JJ.

The plaintiff, believing that the defendants and other importers of foreign merchandise, had been overcharged by the collectors of the customs, under color of the Tariff Act of 1846, for duties on sugar and molasses, proposed to recover, and cause to be refunded any excess of duties so paid to the government of the United States. The defendants accordingly signed a stipulation, bearing date October 13, 1848, in which they authorized the plaintiff to recover any duties or excess of duties illegally exacted of them, and furthermore agreed to pay him one half of the sums of money so recovered, or, in case they should prefer it, such reasonable compensation as should be agreed upon, or fixed by referees to be chosen for that purpose. Opposite to the signature of the defendants to this stipulation the following words were written by them: "Not to interfere with any other arrangement already made.” This action was brought to recover, by way of compensation for services, a commission of fifty per cent. on duties alleged to have been refunded to the defendants through the instrumentality of the plaintiff, and in consequence of his services. The jury found a verdict for the plaintiff for $5153.25. The defendants appealed. It was proved on the trial, that in February, 1848, previous therefore to the agreement between plaintiff and defendants, the latter had employed Earl Douglass and Henry Ogden to prosecute their claims against the government, that they were actually engaged in that business in October, 18418, that their influence and exertions contributed largely to the result by which the duties were refunded to the defendants, and that they had to be, and actually were liberally remunerated. It appeared, also, that the plaintiff had knowledge of the preëxisting employment of Messrs. Douglass and Ogden.

Held, that the judge at the trial erred in charging the jury, that in fixing the liability of the defendants, they were not to take into

account the expenses paid by the defendants to parties employed under the prior contract of February, 1848. The plaintiff was not entitled absolutely to one half of the amount of duties refunded to the defendants, but only to a just and equitable compensation, having regard to his services and the services of the agents already employed. New trial ordered.

C. P. Kirkland, for plaintiff.
F. B. Cutting, for defendants.

BAUMGARTNER v. FOWLER.

Statute of Frauds.

A contract to supply a milkman for one year with milk, although to the extent of more than $50 in amount, is not, (under the authorities,) within the statute of frauds. Such a contract, if sufficiently proved in other respects, especially where there has been a part delivery, may be enforced whether written or verbal.

CHRYSTIE AND WIFE v. PHYFE.

Construction of will - Devise, whether for life or in fee.

Mrs. Chrystie, the only surviving child of Charles Ludlow and Margaret his wife, (both now dead,) and grand-daughter on her mother's side of Thomas Mackaness, claims under and by virtue of a will, executed by her grandfather in 1806, to be the owner of a house and lot in the city of New York, in possession of the defendant, and conveyed to him in 1815, by a deed of warranty, signed and executed by her father and mother.

By the fourth article of the will, the testator gave the house and lot in question to his daughter Margaret, (at that time unmarried, afterwards Mrs. Ludlow,) her heirs and assigns forever; but if she should die unmarried, and without leaving a child her surviving, then he gave the house and lot to his married daughters, their heirs and assigns forever, in equal parts, to be divided; but if she should die either before or after his decease, leaving lawful issue, then he gave them to such child or children, if one only, to him or her solely, and his or her heirs and assigns forever; if more than one, to them, their heirs and assigns forever, equally to be divided between them, share and share alike.

ROOSEVELT, J.-It seems clear that the testator did not intend that his daughter Margaret should take a mere estate for life, and nothing more. Her estate was in perpetuity, with full power to convey, by will or deed, to whom she pleased, in fee simple, with no possibility of being reduced to a mere life estate, except in the one event of her leaving no child; her children were to take under the will, not as direct devisees of their grandfather, but if at all, as heirs of their mother, and of course subject to their mother's acts