Court of Common Pleas.-New Rule. and, therefore, I cannot, and do not im- is properly done to bring the ship to anport their authority into the question, chor in the port to which he is conductfurther than by saying, if it had appeared ing her. The case of The Agricola, (2 to them manifestly clear, and to have W. Rob. 11,) though not directly in been of importance in the cause, it was point, in some degree_illustrates the natural to expect it would have been no- principle. There, the Trinity Masters ticed; but, however this may be, relying expressed their opinion that it was the upon my own judgment solely, I have, to exclusive duty of the pilot to decide upsay the least, great doubt if the proof on the proper time and manner in which does establish the fact; but I will pre- the anchor should be dropped. So, I sume it does, and proceed to the next think, it is part of his duty to see that question. Was the improperly hanging the anchor is properly catted for dropthe anchor the cause of the damage, in ping; and it is more especially so in this the true legal sense of the term, on the case, because the rules and regulations supposition that it was improperly hung? of the river, for the navigation of which If The Gipsy King was pursuing her he is a pilot, particularly direct what is proper course, and the anchor from be- to be done, as regards having the aning improperly placed, and on that ac- chor ready to drop; and surely he must count alone, had struck The Highlander be considered as cognizant of, and bound and occasioned the damage, then the to execute the rules prescribed by the collision would, de facto and de jure, authority under which he was acting. have been owing to the anchor. But For the reasons I have stated, I am of that was clearly not the case here. The opinion that this collision was occasioned collision must have preceded the pene- by the fault or default of the pilot alone; tration of the anchor. The primary that The Gipsy King was bound to cause of the collision was, that The Gip- employ such licensed pilot, and, theresy King was, either from improper fore, the damage being occasioned by steering or towing, brought out of her the acts of a person not selected by proper course, and into collision with The Highlander. Of this opinion were the Trinity Masters; and I entirely concur with them. If, then, this was the cause of the collision, of course the collision was the primary cause of the damage; and I am of opinion that I cannot look further, with a view to ascertain how much of the damage was occasioned by the anchor or by any other part of the vessel. This would be to institute an examination into secondary and inferior causes-a novel principle in these proceedings, and one that I am not inclined, for many reasons, to adopt. It was argued that the anchor was the cause of the collision, instead of being the cause of the damage. But were it otherwise were I to assume that the anchor was the principal cause of the damage, from being improperly catted, can I come to the conclusion that the improper hanging of the anchor was even, in fact, to be attributed to the crew? I entertain a contrary opinion. conceive it is the proper business of the pilot to superintend the hanging of the anchor, and to take care that every thing themselves, but compulsorily employed, they are exempt from all liability as to the damage. I give no costs. I do not believe that in any of the cases circum. stanced like this, I have done so. I did not either in The Agricola or The Fame, (2 W. Rob. 164.) I think that there are strong reasons why the costs should generally follow the decree: but in the case of a vessel claiming exemption from liability for the damage done to another in consequence of there being a pilot on board who is solely in fault, which cannot be known to the other vessel, those reasons do not apply, and I shall, in these cases, make no order as to costs. COURT OF COMMON PLEAS. NEW RUle. Rule 61. Non-enumerated motions shall hereafter be brought to hearing on Friday of each week at Chambers, at 10 I o'clock, A. M., on a notice of four days. Ordered, That the above rule be substituted in the place of Rule 61 of this Court, which is hereby abolished. THE New-York Tegal Observer. VOL. V.] NEW-YORK, DECEMBER, 1847. SELLING UNWHOLESOME PROVISIONS. A VERY singular case, with reference to the sale of unwholesome provisions lately came before the Court of Exchequer in England, (Burnley v. Rollitt, 11 Jur. 827.) By the Stat. 51 Hen. III. it appears that "victuallers, Brewers and other common dealers in victuals, who in the course of their trade sell provisions unfit for the food of man are criminally responsible, "Pillor et Tumbrel," &c., and that by the Statute of Edw. 1 "De Pistoribus et Brassiatoribus et alliis vitellariis;" if they do so knowingly and probably if they do not; and are liable civilly to the vendee without any fraud on their part or warrantee of the soundness of the thing sold, but that the liability does necessarily attach to a private person not following any of these trades. The declaration in the case alleged, that the defendant "publicly of fered, and exposed for sale the carcass of a pig, as and for food for man, and by falsely and fraudulently warranting it to be wholesome and fit for food for man, sold it to the plaintiff, who paid him for it and it averred that the carcass of the pig was at the time of the sale unwholesome and unfit for food for man. The defendant pleaded the general issue; with traverses of the warranty, and of the allegation that at the time of the sale, the carcass of the pig was unwholesome and unfit for the food of man. The circumstances of the case were these: On a market day in Lincoln, a butcher of the name of Penrose, exposed the carcass of the pig for the sale on a stall in one of the public streets; where the defendant bought it at a fair market price. He did not however take it away,but went through [MONTHLY PART. the market on other business. Shortly after he was gone, the plaintiff seeing the pig hanging on the stall, wanted to purchase it from Penrose, and being informed that is was already sold to the defendant, applied to him, who, without giving any warranty of its soundness, agreed to sell it at a price a little exceeding that for which he had himself bought it. The pig, on being taken home by the plaintiff, was found to be unfit for food; and the defendant having refused to repay the price, the plaintiff brought his action. The defendant was not a butcher or dealer in meat, and it did not appear that he had any knowledge of the unsound state of the pig, either at the time when he bought it from Penrose, or when he sold it to the plaintiff. He had bought the pig for his own use, and had not publicly exposed it for sale; but there was reasonable evidence, it seemed, that when he sold it to the plaintiff he knew that it was to be used for human food. The case was submitted for the opinion of the court on this state of facts, and it was held that a private person not following any of the trades enumerated in the statute, was not liable under the circumstances. Parke, B., in giving judgment observed, that the sale of victuals to be used as food for man differs from the sale of other commodities, and that the vendor of such, if they prove unwholesome, is liable to the vendee, without fraud or warranty. "This position is laid down, apparently in general terms, in Keilw. 91, pl. 16, but the case there referred to, which is in the Year Book 9 H. 6, 53, B. pl. 37, together with the 11 Edw. 4, c. 6, A. pl. 10, and other authorities, when considered, lead to this conclusion; that there is no U. S. District Court -The Scioto. difference between the sale of victuals for de mesure et vendrent per meindre mesure food, and other articles, than this, that fause, et ceux soient punis come vendours de victuallers, butchers and other common vyns, ausi ceux que serrount atteintz de dealers in victuals, are not merely in the faux aunes, et de faux peys et ausi les same situation that common dealers in macegrefs,' expounded by Lord Coke, other commodities are, and liable under macellarii, or sellers of meat in shambles; the same circumstances as they are, so but macegrefs, by the terms de la ley, that if an order be sent to them to be exe- means those who willingly buy and sell cuted, they are presumed to undertake to stolen meat; Et les gentz que de rsage supply a good and merchantable article,- vendent a trespassauntz (passengers) maubut they are also liable to punishment for ueyse viaundes corrumpus et wacrus et autreselling corrupt victuals, as a common nui- ment perillous a saunete de home.' Et sance, by virtue of an ancient statute (cer- fol. 33, he doth conclude the like passage tainly if they do so knowingly, probably with these words: Encontre la fourme de if they do not,) and are therefore respon- nos estatutz. sible-civilly, to those customers to whom they sell such victuals, for any special or particular injury by the breach of the law, which they thereby commit. explains the note of Lord Hale, (F. N. B. 94,) that there is a diversity between selling corrupt wine to merchandize, for there an action on the case does not lie without warranty; otherwise if it be by a taverner or victualler, if it prejudice any.' This view of the case explains what is said in they ear book of 9 Hen. 6, that the warranty is not to the purpose, for it is ordained that none shall sell corrupt vicThat they, the common dealers,-not tuals,' and what is said by Tanfield, C. B., all persons are liable criminally for sell- and Altham, in Cro. Jac. 197, that if a ing corrupt victuals, is clear from what man sells victuals which is corrupt, withLord Coke says in 4 Inst. 261. This out warranty, an action lies; because it court of the Leet may inquire of corrupt is against the commonwealth'-and also victuals as a common nuisance, whereof some have doubted, both for that it is omitted in the statute of the Leet, and of the weak authority of the book of 9 H. 6, where Martyn saith that it is ordained that none should sell corrupt victuals. And Cottismore held the opinion that it is actio popularis, whereupon it is collected that the conusance thereof belongs to the leet. And Martyn and Neale, 11 Hen. 4, agreeing with him, said truly, for by the statute of 51 Hen. 3, stat. pillor, et tumbrel, et assis, panis et cervis', and by the statute made in the reign of Edw. I., intituled stat. de pistoribus et brassiatoribus et aliis, vitellaris, it is ordained, that none shall sell corrupt victuals.' The stat. 51 Hen. 3 of the pillory and tumbrel, and assize of bread and ale, applies only to vintners, brewers, butchers and cooks. Amongst other things, inquiry is to be made of the vintner's names, and how they sell a gallon of wine, and if any corrupted wine be in the town, or such The defendant in this case was not dealing in the way of a common trade, and was not punishable in the leet for what he did. He merely transferred his bargain to the plaintiff. He falls within the reason of the former part of Lord Hale's distinction, and there being no evidence of warranty, nor any of fraud, he is not liable and the plaintiff ought to have been nonsuited. U. S. District Court. [Portland, Maine.] is not wholesome for man's body, and if Before the Honorable ASHER WARE, District any butcher sell contagious flesh or that died of the murrain,-or cooks that seethe unwholesome flesh, &c. Lord Coke goes on to say, that Britton, fol. 77 a., who wrote after the stat. 51 Hen. 3 and following the same, saith, Puis soit enquys de ceux que achatent per vue manere Judge. THE SCIOTO.-December, 1847. COLLISION. When a collision takes place between a vessel under sail and one at anchor, the prima facie presump U. S. District Court.-The Scioto. sel under sail. A vessel entering a harbor is bound to keep the most vigilant watch to avoid collision with other vessels in motion or lying at anchor. In the night time she ought to have her whole crew on deck on the look out. tion, if there be any fault, is that it is on the ves-rately but not heavily overcast; some of the witnesses say that stars were visible, and others that they were not. During the first part of the night, there were flying clouds sometimes obscuring the moon and sometimes leaving it bright, but in the lat ter part, the clouds became more dense and heavy. Still it was light enough to see objects at considerable distance which were broad off on the water, unless land lay behind, so that the shade of the vessel was melted into that of the land beyond. It was in such a position, that the Falcon lay when seen from a vessel entering the harbor, the high land of the town covering her hull. She lay also in the channel or passage way, not precisely in the track of a vessel entering the harbor with a fair wind, but within the range taken by vessels beating in and very nearly in the track of a vessel going into Hog Island roads; and she showed no light. When a collision takes place by the fault of one of the vessels she is responsible for all the damage. But if it happens without fault in either party-or if there was fault and it cannot be ascertained which vessel was in fault,-or if both were in fault, then the damage and loss is divided between them in equal shares. A vessel ought not to be moored and lie in the channal or entrance to a port, except in cases of necessity; or if anchored there from necessity, she ought not to remain there longer than the necessity continues. If she does and a collision takes place with a vessel entering the harbor, she will be considered in fault. A vessel lying in the channel of a port from necessity, is bound in the night time to show a light. In cases of collision, a fault of one vessel will not excuse any want of care, diligence and skill in another, so as to exempt her from sharing the loss and damage. THIS was a case of collision occurring in the harbor of Portland between the Scioto as she was entering the harbor, and the Faleon lying at anchor. The material facts are stated in the opinion of the Court. It was argued by Haines, Dist. Attorney, for the libellant, and Shepley, for the respondent. WARE, District Judge. The Scioto on the evening of the 15th of Dec., being on her passage from Calais to Boston, deeply laden with a cargo of lumber, in consequence of the threatening aspect of the weather, put into the harbor of Portland. The wind was from the N. N. E., so that she could not lay her course into the harbor, but was obliged to beat in. Two other vessels were entering at the same time. As they entered, the Scioto beat in on one tack as the other two did on the other, and each tacking at the same time, they passed each other in the channel. After making three or four tacks the Scioto in her passage from the eastern to the western side, came in collision with the Falcon lying at anchor about 40 rods north-west of the block house on House Island where she had been lying for a week. This was about one o'clock in the morning. The moon was then just setting, the sky mode In the case of a collision of vessels by which damage is done, the first rule, a rule dictated by natural justice, is that the vessel by whose fault the collision took place, shall be answerable for all the damage. The first inquiry therefore is, by whose fault this collision was occasioned. It may be assumed as a general rule, that when a collision takes place between a vessel under sail and one not under sail, that the prima facie presumption is that the fault is imputable to the vessel that is in motion. It is said in Jacobson's Sea Laws, p. 339, generally and without limitation, that when a vessel in full sail occasions damage to one that has no sail set, she will be held liable for all the damage. The same is also stated as a rule of law by Boulay Paty, Droit Maritime, tit. 12, sect. 6, vol. 4, p. 492, and it is assumed to be law in the case of Strout v. Foster, (1 How. Rep. 29.) Undoubtedly the rule must admit exceptions. But the first presumption will place the blame on her, because she has the power of changing her course, and a vessel at anchor is stationary. The vessel under sail must therefore clear herself from the imputation by showing that every practicable effort was made to avoid the collision. It may be safely stated as another general rule admitting perhaps of no excep tion, that a vessel entering a harbor in the night time, is put on her utmost vigilance; U. S. District Court.-The Scioto. and this is more especially the case, if the bor was approaching them, between the Under these general rules of the law, the prima facie presumption of fault, if there was any, will be against the Scioto. She was the moving vessel, and she was entering a harbor on account of the doubtful aspect of the weather, much frequented by vessels on this coast for the very purposes for which it was sought by her. Consequently, we have a right to demand of her the utmost care and vigilance. part of the Scioto. If by any reasona Taking the testimony of the crew, and I have seen no reason for questioning their fairness, I think that there was that degree of vigilance which the case re-cuse the neglect of any precaution on the quired. The whole of the crew were on deck and stationed in those parts of the vessel where they had the best opportunity of controlling her motions and seeing any object which they might be approaching. But the fact was, that the Falcon was not seen from the Scioto until she Might then the Scioto with a vigilant. was so near, that it was impossible to watch, be supposed to have seen the avoid a collision. The master who was Falcon while she was approaching her, forward, and the mate at the helm with before the view was intercepted by the one of the hands, saw her at the same other vessel, which was beating into the moment, and the mate immediately put harbor at the same time; or was the up the helm to bear away. She was night so obscure, that with a watch inmoving in a direction that would have tently on the look out, she might have brought her on the Falcon's bow, but the escaped their sight? Undoubtedly there helm changed her motion, so that she was light enough to see a vessel broad struck her quarter. At first, it may ap- off on the water, considerably further pear surprising that the master, mate and than these two vessels were apart beone of the hands, should all have seen fore the view was cut off by the interve her at the same moment when she was ning vessel. But then the Falcon was just under the Scioto's bows, at not within the land, so that in the direction in more than the distance of thrice the length which she would be seen as she was apof the vessel. The testimony explains proached in any direction, the land rose it. As they were approaching the Fal. behind her, above the line in which her con, another vessel beating into the har-hull would be seen, and then the shade |