1851. HOLIDAY V. COE. Shipped by Daniel T. Holliday, in good order and condi- Nov. Term, tion, on board the good flat-boat called the Queen-City, No. 3, whereof Milburn Coe is owner, and Samuel Welch is pilot, for the present voyage, now lying in the port of Covington and bound for New Orleans, the following property marked and consigned as below, which is to be delivered without delay, in like good order, at the port aforesaid, the unavoidable dangers of the river navigation or fire excepted, unto M. R. or A. S. Holliday, or to his or their assigns, he or they paying freight for the said property at the rate of sixteen cents per bushel. "In witness whereof, the owner of said boat has affirmed to three bills of lading of this tenor and date, one of which being accomplished, the others to stand void. "On account of D. T. Holliday, Covington, Ia. Property, 3,771 bushels of corn in the ear, at 16 cents, 603 dollars and 36 cents. Consignees, M. R. or A. S. Holliday. "Received on the above ft. of D. T. Holliday, 75 dollars and 64 cents. (Bal.) 527 dollars and 72 cents. (Signed) Milburn Coe." The defendant's advance of 75 dollars and 64 cents, mentioned above, was to pay incidental expenses, such as the expense of a protest, should one be necessary. The defendant had the corn insured at 20 cents a bushel. The plaintiff, in pursuance of his contract contained in the bill of lading, proceeded on the voyage with his boat and the aforesaid cargo, until the boat, when within about 250 miles of New Orleans, sunk, and the whole cargo was lost. Immediately after the loss, the plaintiff went to New Orleans, and procured, at an expense of about fifteen dollars, a protest of the boat. Afterwards, the defendant told one of the witnesses he would pay the plaintiff a part of the freight, but the plaintiff was not then present, nor did the witness understand the defendant as contracting to make such payment. The insurance on the corn was paid by the insurers. These facts do not, in our opinion, support the verdict. for the plaintiff. The claim of the plaintiff, under the counts for work and labor, is for freight in transporting the corn HOLLIDAY V. COE. Nov. Term, under the contract between the parties, as evidenced by the 1851. bill of lading. But it is very clear that the plaintiff has no ground for the recovery of freight. The answer to his claim for freight is, that the corn was not delivered by him at New Orlcans; his delivery of it there being a precedent condition to be performed by him. The sinking of the boat and consequent loss of the cargo, before the arrival at the place of destination, show that no freight is recoverable in this case. The circumstance that the plaintiff performed a part of the voyage, and that the loss occurred without any fault on his part, does not authorize the verdict. There are no doubt cases where freight must be paid, pro rata itineris. Those cases are where the vessel has performed the whole voyage, and brought only a part of her cargo to the place of destination; or where the vessel has not performed her whole voyage, and the goods have been delivered to the merchant at a place short of the place of delivery. The case before us does not come within either of those classes. Here was an entire loss of the cargo where the boat was sunk, and, of course, the case is not one where freight can be recovered according to the proportion of the voyage performed. 3 Kent's Comm. 219, 227. There was no evidence to support the count for money paid. It is true that the plaintiff paid a small sum for the protest at New Orleans, but the evidence shows that he was bound to pay that out of the money which had been advanced to him, on the freight, by the defendant. The evidence of the defendant's statement after the loss, that he would pay part of the freight, was made to a stranger, in the plaintiff's absence, and the defendant was not understood as contracting to make such payment. That evidence does not support this suit. Per Curiam.-The judgment is reversed and the verdict set aside with costs. Cause remanded, &c. Z. Baird, for the plaintiff. Nov. Term, VICKERS V. CANNON. The admission of illegal evidence, or the giving of erroneous instructions to the jury, cannot be assigned for error, unless such evidence or instructions are shown by a bill of exceptions. ERROR to the Allen Circuit Court. BLACKFORD, J.-Cannon commenced this suit against Vickers, before a justice of the peace. The justice gave judgment for the defendant, and the plaintiff appealed to the Circuit Court. Verdict and judgment in the Circuit Court for the plaintiff. There is a paper, in the form of a bill of exceptions, copied by the clerk in the transcript, but the bill is not signed by the judges. A rule was granted by this Court upon the judges of the Circuit Court, to show cause why they had not signed the bill of exceptions. To that rule, the judges returned that the bill was not true. No further steps have been taken with respect to the bill of exceptions; and the cause has been submitted to the Court. The errors assigned are, that the Court admitted illegal evidence on the trial, and gave erroneous instructions to the jury. There being no bill of exceptions, there is nothing in the transcript to which the assignment of errors is applicable. Per Curiam.-The judgment is affirmed with 10 per cent. damages and costs. D. H. Colerick and J. G. Walpole, for the plaintiff. 1851. VICKERS V. CANNON. Monday, Nov. Term, 1851. MCJUNKIN McJUNKIN v. McJUNKIN. Sections 98 and 99, of chapter 46, of the R. S. of 1843, in relation to opening decrees, do not apply to suits for a divorce. APPEAL from the Allen Circuit Court. SMITH, J.-Alexander McJunkin, the appellee, filed a bill to obtain a divorce against Elizabeth McJunkin. Notice was given by publication, the said Elizabeth being a nonresident. Elizabeth was defaulted, proof was made, and a divorce was decreed in October, 1845. At the next ensuing term of the Circuit Court, in February, 1846, the said Elizabeth filed an affidavit that she had no actual notice or personal knowledge of any kind, of the pendency of the bill for a divorce, and prayed for an opening of the decree. She also filed an answer to the bill. Notice of the motion to open the decree was given to the complainant, who filed an affidavit, stating that since the decree he had married again. He also denied the allegations in the answer. The Circuit Court refused to open the decree; and from this decision, Elizabeth appeals. By section 45, c. 35, p. 602, of the R. S., it is provided that the practice and proceedings in suits to obtain divorce shall be the same as in other cases in chancery, with certain specified exceptions. In the chapter relating to suits and proceedings in chancery, c. 46, ss. 98 and 99, there are provisions that parties against whom a decree has been rendered without other notice than by publication in a newspaper, may, at any time within five years, have such decree opened and be let in to a hearing, by giving notice to the original complainant, or his heirs, devisees, executors, or administrators, and upon filing a full answer to the original bill with an affidavit, &c. The Circuit Court decided that these last mentioned statutory provisions were not intended to apply to divorce cases; and we are of the same opinion. The fact that 1851. MUSGRAVE V. GLASGOW. they require decrees to be opened as against the heirs, Nov. Term, Per Curiam.-The judgment is affirmed with costs. MUSGRAVE and Another v. GLASGOW. In an action against principal and surety upon a promissory note, evidence was adduced by the defendant, tending to show that, at the time appointed for the payment of the note, the principal offered to pay the same, and that the payee, without receiving the money or surrendering the note, made an oral agreement with the principal for a new loan of the money, upon the sole responsibility of the latter; but the Court instructed the jury that the evidence constituted no defense to the action. Held, that the instruction of the Court was erroneous. APPEAL from the Dearborn Circuit Court. Tuesday, |