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infer that the coal was received and discharged, and the account taken in the usual manner.
A question was raised on the testimony of Mr. Dunn, who states in substance that, when coal of this kind is accurately weighed, there will be a loss in the delivery of about one per cent.; on this cargo a loss of one and one-fifth of a ton. If the question fairly arises in this case, it is argued that freight is due only on the amount delivered, and assuming the account of the lading to be correct, that freight should be allowed on one per cent. less. I think otherwise. It has been a question, when goods from natural causes have become deteriorated in the course of the voyage so as to be worthless, whether the consignee may not abandon them for the freight. And it has been held by authors of high authority in maritime law, that he may. But the better opinion, I think, and that supported by the better reasons, is, that he cannot, and that in such a case the master is entitled to full freight on all that is laden. The loss is not attributable to his fault, but to the intrinsic vice of the goods, and by the principles of natural law, the loss falls on the owner. Resperit domino. And this decision is conformable to the principles of the contract of hir, ing. The engagement of the carrier is to transport and deliver the goods. This is the whole of his obligation, and this he has performed so far as depends on him, whether the merchandise is in good condition, or is degraded and deteriorated from natural causes, over which he has no control, and for which he is not responsible. For a like reason in this case, the master is entitled to freight on the whole quantity laden, if it has not been diminished by his fault.
I allow freight for the whole amount borne on the bill of lading, according to the terms of the contract. A claim is made in the libel for three days' demurrage, occasioned by this controversy about the freight. This claim strikes me as a novelty ; but however that may be, I think it ought not to be allowed in this case.
Supreme Judicial Court of Massachusetts.
March Term, 1856. Suffolk.
(In view of the time necessarily taken by the official reporters in preparing and publishing the decisions, even where (as is certainly now the case in Massachusetts) the utmost despatch and fidelity are employed, the
editor has thought it would be useful and acceptable to the profession, to present in this journal abstracts of the points decided at each law term, as soon as possible after the adjou roment.
We accordingly give below notes of cases decided at the March Term of our Supreme Court. In preparing them, the editor has received valuable assistance from the accomplished reporter of the State, and also in some instances from the gentlemen whose cases are reported.
In a few cases decided at this term, no opinion was delivered, but the result only announced in general terms. It has not been possible to ascertain with certainty, in all these cases, the precise grounds on which the judgment is placed where several points were raised and argued. In these, we have preferred to wait for the written opinion. Many cases have been omitted which seemed to turn on questions of fact, or to reaffirm unquestionable decisions of the court. We have endeavored, however, to err rather on the side of publishing too much, than of suppressing anything which might be of use.
We have put all the cases into this number of the journal at the expense of considerable space, because it seemed to us that it would add much to the convenience of reference.
We shall publish similar notes of the fall circuit in our state, of the decisions of several of the other states of the Union, and of English cases interesting here. The full reports will in general be of cases not likely to be reported elsewhere, or not easily accessible to our readers.]
MULRY v. Mohawk VALLEY Ins. Co.
Practice Act of 1852, c. 312 — All matters of Avoidance must be alleged in
By the practice act (1852, c. 312), the rules of pleading and the mode of making up issues of fact, are essentially changed, in this respect, that defendant cannot, by denying plaintiff's allegations, put in issue anything more than the facts necessary to plaintiff's case.
By the old form of proceeding defendant might, under the general issue, give in evidence any facts which tended to show that the alleged contract was void ab initio, but now there is no general form of denying plaintift's right to recover, and any matter of avoidance, although it extend to show he never had any cause of action, must be averred specifically in the answer.
Thus, where to an action on a policy of insurance upon goods in plaintiff's store, the defence was, that the conditions annexed to the policy had not been complied with, by disclosing that spirituous liquors (which were classed as hazardous) were kept for sale on the premises, and the fact that liquors were so kept at the time the policy was issued, came out on cross-examination of plaintiff's witnesses. It was held that defendant could not take advantage of this defence, because his answer did not set it up, but only contained a general denial of plaintiff's allegations, and of the validity of the policy.
BANK OF British North AMERICA v. HOOPER AND OTHERS.
Principal and Agent - Bill of Exchange.
A negotiable note or bill of exchange, signed by an agent in his own name, does not bind the principal, though made for his benefit.
A., by authority from B., drew bills in his own name, containing a direction to the drawee “ to charge the same to account of B.," and payable to C., who indorsed them, and, in consideration of a commission paid him by B., negotiated them and transmitted the proceeds to A., who applied the same to B.'s use. Held, that a bank, which discounted the bills, could not sue B., or prove against his estate in insolvency, either on the drafts or for money loaned.
LYON v. WILLIAMS.
Principal and Agent — Signature to bind Principal.
staveral rail transport umbus, on publi
On a written receipt for goods, delivered at a railroad station in Boston," which” (by the terms of the receipt) "the several railroad companies between Boston and Zanesville, agree to transport over their lines, via Albany, Buffalo, Cleveland and Columbus, on the terms and conditions mentioned in their respective published tariffs, which are hereby made part of this contract, each delivering to the next connecting road, but assuming no responsibility or control of property beyond its own line, other than prompt delivery to the next succeeding line," and signed “G. Williams, jr., for the corporations," Williams cannot be charged for a loss of the goods between Boston and Zanesville.
EASTERN RAILROAD CORPORATION V. BENEDICT.
Principal and Agent — Parties to Actions. On a written order, made for the benefit of the Eastern Railroad Corporation, to deliver property to “ Mr. D. A. Neale, President of the Eastern Railroad Company," and
accepted by the person on whom it is drawn, the corporation may sue in their own names.
Vose v. Morton.
Bill of Lading – Primage and Average Accustomed. Under a bill of lading on certain iron rails shipped from Glasgow to New York, at a certain freight per ton, “ with primage and average accustomed.” Held, that accustomed qualified primage as well as average, and that evidence was admissible to show a universal and well understood custom of the trade to pay no primage.
BAKER v. HUCKINS.
Charter - Liability of General Owners. General owners of a vessel let her to the master for the season for freighting and fishing, and gave him the entire management and control, but agreed to keep the vessel in repair, and to receive a proportion of her earnings as compensation. Held, they were not liable for stores furnished for the vessel upon the order of the master.
SHEPHERD V. NAYLOR.
Bill of Lading – Weight Unknown. Bill of lading for a specified number of tons of iron, “ weight unknown," binds the ship owners (in the absence of fraud) to deliver only so much as they actually receive on board.
CATSKILL BANK V. HOOPER AND OTHERS.
Insolvent Laws - Proof against Resident Partner of a Foreign House
A debt due from a partnership established in another state, cannot be proved under the insolvent laws of this commonwealth, against the estate of one of the partners who resides here, in competition with his separate creditors.
A creditor, who recovers judgment in New York against two persons as partners doing business there, one of whom resides in this state, which judgment is primâ facie evidence, by the statutes of New York, against such absent defendant, cannot afterwards prove on the original consideration against the estate of such absent defendant, in competition with his separate creditors, in proceedings commenced under the insolvent laws of this commonwealth before the suit was brought in New York; and it is immaterial, in this respect, whether the two defendants were actually partners or not, the creditor having treated them as such by taking judgment against both of them in New York.
KIMBALL V. ROWLAND.
Landlord and Tenant – Notice to Quit — Subsequent Receipt of Rent dus
A demand of payment of rent due on a lease at will is not necessary, in order to entitle the landlord to give the tenant fourteen days' notice to quit.
The landlord's right to commence, on the expiration of a notice to quit for non-payment of rent, the process given by the Revised Statutes, c. 104, to recover possession of the premises leased at will, is not barred by payment of said rent on the day after the giving of such notice.
SHUMWAY v. COLLINS.
Landlord and Tenant — Eviction — Use and Occupation.
Eviction of a tenant by his landlord from part of the premises demised by a written lease, is a bar to any claim for rent under the lease.
If the tenant, after such eviction, continue to occupy the residue of the premises, he will be liable for use and occupation of the part so occupied. * The omission to pay for such use and occupation, does not render the tenant liable to the process given by Revised Statutes, c. 104, in the case of a neglect or refusal to pay rent.
BADGER V. HOLMES.
Tenant in Common — Use and Occupation,
One tenant in common cannot maintain an action for use and occupation against the lessee of his co-tenant, the