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In Russum v. St. Louis M. Life Ins. Co. (St. Louis already cited. The case was well prepared and most Court of Appeals), 5 Big. Ins. Cas. 243, the policy was ably presented, and I regret that I am not better able precisely like the present one, and it was held in an to do justice to a question of so much importance. It elaborate and learned opinion by Judge Grant, that is not the business of courts to make contracts for the entire policy is forfeited on failure to pay interest parties, but only to enforce them. If a forfeiture bas on the notes. The learned author of these reports, in been clearly and explicitly stipulated, it must be de. a note appended to this case in which other cases are clared in a proper case according to the condition, and reviewed, sums up the result of his investigations on a party cannot justly complain of hardship from it, or this question as follows: "(1) This provision on the ask relief against it, where as in this case, he has sufface of the policy of life insurance, that it will be forfered voluntary default. The assured must be prefeited for failure to pay interest on a premium note as sumed to know and understand the various provisions agreed, will be respected and enforced in a court of of forfeiture in his own policy by which he may suffer law; (2) equity will in proper cases afford relief from loss through his own fault or negligence. We cannot such a forfeiture, and euforce a settlement between but hold that the learned county judge erred in his the parties, such as will preserve the rights of both." It instructions to the jury on the meaning or construcmay here be observed that if the assured in cer- tion of this policy. tain or proper cases, where the performance became im- The judgment of the County Court is reversed, and possible, or a great hardship, may be allowed some the cause remanded for a new trial. equitable compensatioa for his investment of pay- Cassoday, J., took no part. ments for a certain part of the time of the insurance, by what rule of equity or of law can the court say that such compensation shall consist of a proportion of the insurance under another stipulation of the contract,

FAILURE TO PROVIDE FIRE ESCAPES NO made with no reference to the non-payment of inter

ACTION BY INDIVIDUAL, est, but only of premiums? In the first class of cases there is some consistency in holdiug that the von-pay- RHODE ISLAND SUPREME COURT, MARCH 1, 1884. ment of the interest worked a forfeiture of the whole policy in law, but that in equity the assured should be

GRANT V. SLATER MILL AND POWER Co.* allowed some reasonable compensation, to be determined by the peculiar circumstances of the case.

A local act of the Legislature affecting the city of Provi. In Moses v. Brooklyn Life Ins. Co., 50 Ga. 196, the

dence provided that every building already built or

hereafter to be erected in which twenty-five or more oper. policy provided for a two-years' policy on the payment of all the premiums for that time. For a part of such

atives are employed in any of the stories above the second premiums votes were given. The condition of entire

story, shall be provided with proper and sufficient, strong forfeiture was the failure to pay the premiums or the

and durable, metallic fire escapes,or stairways constructed notes, or any part thereof when due. The dividends

as required by this act, unless exeinpted therefroin by the were to be applied to the payment of the notes, but

inspector of buildings, which shall be kept in good repair there was a balance of such notes unpaid. The plaint

by the owner of such building, and no person shall at any

time place any incumbrance upon any such fire ésiff brought bis bill in equity for a paid-up two-years'

capes,” policy. The court dismissed the bill on the ground of

Plaintiff, who was employed as an operative in a building such non-payment of the notes.

subject to the act, was compelled by a fire to jump from In Smith v. St. Louis M. L. I. Co., 2 Tenn. Ch. 727,

an upper window and thereby suffered injuries, there bethe condition was the payment of the interest on the

ing no fire escape on the building, and brought trespass on notes alinually in advance, and it was held that a fail

the case against the owner of the building to recover damure to so pay according to the condition worked a for

ages for his injuries, alleging the owner's violation of the feiture, but that the dividends might, under that

duties imposed by the act. policy, be applied upon the interest; and the court

Held, that the action could not be maintained. held the case to inquire whether such dividends as the

That the scheme of the act was to secure safe structures as a insured was entitled to would be suflicient to discharge

police measure and for the general safety. the interest. This was like the case of Hull v. The

Held further, that it was not the scheme of the act to create Sume Company, 39 Wis. 397, in which it was provided

any duty which could be made the subject of an action that the dividends were first to be applied to the pay

by individuals, and that no remedy in favor of individuals ment of the interest, and in that case the dividends

beyond what is expressly given in the act should be im. exceeded the interest. It was a very different policy

plied for mere neglect to perform the duties created by from this in many material respects, and may have

the act. been very properly called a nou-forfeitable policy. The


On demurrer to the dec, in same provisions.

The plaintiff's declaration stated that the defendant In Knickerbocker Ins. Co. v. Harlan, 56 Miss. 512, the corporation owned and rented a building in which he condition of forfeiture for non-payment of interest was employed as an operative, that the defendant pegwas no stronger than in this policy, and not repeated lected to comply with the provisions of Pub. Laws R. as in this, and it was held imperative, and that the I., ch. 688 of April 12, 1878, although subject to these non-payment of the interest worked a complete for- provisions, in consequence of which the plaintiff was feiture of the policy and of the whole insurance. In compelled by a conflagration in the building to leap this case the Grigsby case is disapproved, as well as

from a window in an upper story in order to save his by five of the above cases holding the same rule. life; that his leg was fractured in the leap, and ampuIn Patch v. Phænix Ins. Co., 44 Vt. 481, the same doc

tation became necessary. trine is held in respect to the same condition. Atty.

So much of the act as is involved in the case is rer Gen. of N. Y. v. North America L. I. Co., 82 N. Y.

cited in the opinion of the court. 172, is to the same effect.

Spooner, Miller & Brown, for plaiutiff. A sufficient number of cases on both sides of the question has been cited and examined, and other cases

Charles Ilart, Benjamin T. Eames & Stephen A. Cooke, cited in the respective able briefs of the counsel will

Jur., for defendant. add nothing to the weight or reasoning of the cases

*To appear in 14 Rhode Island Reports.

case of this same Company w. Ross, 63 Ga. 199

, follows TRESPASS on the case.

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DORFEE, C. J. This is case to recover damages for injuries to the plaintiff caused by a destructive fire, which occurred November 21, 1882, in a building belonging to the defendant corporation, in which the plaintiff was employed as an operative. The action is founded on Public Laws R. I., ch. 688, § 23 of April 12, 1878, entitled “An Act in relation to buildings in the city of Providence and for other purposes." Section 23 is as follows, to wit:

" Section 23. Every building already built, or hereafter to be erected, in which twenty-five or more operatives are employed in any of the stories above the second story, shall be provided with proper and sufficient, strong and durable metallic fire escapes, or stairways constructed as required by this act, unless exempted therefrom by the inspector of buildings, which shall be kept in good repair by the owner of such building, and no person shall at any time place any incumbrance upon any such fire escapes."

The declaration avers that the building which was burnt was four stories high, and that more than twenty-five operatives were employed in each of the two upper stories. The declaration also alleges that said third aud fourth stories were rented for workshops for manufacturing purposes by the corporation; that the operatives were employed by the tenants; that the corporation rented the said stories knowing there were more than twenty-five operatives employed in each of them; that it derived great gains from the renting thereof, and that it thereby became subject to the duties imposed by the act. The corporation demurs to the declaration and contends that it is not liable to the action.

The question raised is one of great difficulty, as the question of civil liability is apt to be under such a statute. Cooley on Torts, 650, 651. The act expressly gives two remedies. Section 37 provides that any persou violating any provision of the act, wherein 110 other penalty is prescribed, shall be filled twenty dollars for every violation, and not exceeding twenty dollars for every day's continuance of the violation after service of warrant in the first complaint. The same section also provides that the Supreme Court may restrain by injunction any violation of the act and may according to the course of equity secure the fulfillment and execution of the provisions thereof. The fines, when recovered, are directed to be paid into the city treasury. If the remedy by fine were the only remedy giren, the iuference would be, as decided in Aldrich v. Howard, 7 R. I. 199, that it was intended only as punishment for the public offense, and the remedy by action on the case in favor of persons specially imposed, if such remedy were proper, would not be excluded. But in th respect the case at b: differs from Alurich v. Horrard, for in the case at bar there is the remedy by suit ii equity which is not purely a public remedy. The question therefore is whether two remedies being given, one of which is not necessarily solely for the public, it is not to be presumed that they were intended to be the only remedies. The familiar rule is, where a new right is created or a new duty imposed by statute, there if a remedy be given by the same statute for its violation or non-fulfillment, the remedy given is exclusive.

Is this rule inapplicable to the case at bar? Or to put the question in another form, is the case at bar an exception to the rule? If it be, it is because the remedy in equity, being purely preventive, is no remedy for an injury already incurred. The answer to that is, if the preventive remedy had been resorted to in season, no injury would have been incurred.

We are not prepared to say that the answer is entirely satisfactory, nor are we prepared to say that a statute might not be enacted, especially if it were enacted simply for the benefit of particular persons, under

which the remedy in equity would be so clearly inadequate that it could not be presumed to have been intended to exclude the common-law remedy by action on the case.

It is evident however that the act here was designed primarily as a police regulation and only incidentally, if at all, for the benefit of particular persons or classes of persons. It is when there is or may be a combination of both purposes that the difficulty arises.

In such a case, says Judge Cooley, the question of civil liability for neglect of duty can only be determined by a careful consideration of the statute. Cooley on Torts, 681. This too is the doctrine enunciated in Atkinson v. New Castle Waterworks Co., L. R., 2 Exch. Div. 441. There an act incorporating a company for the purpose of supplying a town with water gave certain powers and imposed certain duties, among which was the duty of keeping a number of fire plugs, so called, always charged for service in case of fire. The company neglected to keep the fire plugs charged, and the plaintiff's house, situated near one of them, was destroyed by fire. He sued the company for damages, alleging that he had lost his house in consequence of the neglect. The act gave no civil common-law remedy, but prescribed penalties. Some of the penalties were purely public, the penalty for neg. lect to keep the fire plugs charged being such. Forfeitures of forty shillings a day were however given to rate payers entitled to water for neglect to supply them. The court held that the company was liable to individuals only for these forfeitures, and consequently not liable to them at all for neglecting to keep the fire plugs charged.

The judges, Cairns, L. C., Cockburn, C. J., and Brett, L. J., all of them doubted the correctness of the rule laid down in Couch v. Steel, 3 El. & B. 402, namely, that wherever a statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty, can bring an action for damages against the person on whom the duty is imposed.

Lord Cairns expressed the opinion that the question of liability must, to a great extent, “ depend on the purview of the Legislature in the particular statute and the language which they have there employed.” The authority of the case as a precedent however is qualified by the fact that the act there was a private act, “in the nature of a legislative bargain," and the court considered it to be entitled to a stricter interpretation on that account. Nevertheless the case is very instructive, for the real pith of it is this, that the Legislature had expressed itself on the subject of remedies, giving a limited remedy to individuals, and that therefore no other remedy in favor of them could be implied. The same reasoning is applicable to the case at bar; for here the Legislature has expressed itself on the subject of remedies, and given an equitable remedy which is applicable in favor of individuals as well as of the public. Shall we say that still another remedy may be implied or shall we hold to the maxim, erpressum facit cessare tacitum.

An examination of our act discloses peculiarities which ought not to be disregarded. The act was passed by the General Assembly on the last day of its January session, 1878, and went into effect ten days after its passage.

It is difficult to believe that the General Assembly can have expected that all the buildings within the purview of section 23 could be furnished with fire escapes or stairways as required by the act within so short a time, or can have intended, that if not furnished, their owners should be liable civilly as well as criminally for not furnishing them. Again section 23 declares that the fire escapes and stairways shall be furnished but does not declare by whom they shall be furnished; it only declares that

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they shall be kept in repair by the owner. If a build that therefore no remedy for individuals, beyond that
ing be let, why should the owner rather than the les- which is expressly given, should be implied for any
see be required to furnish the fire escape, wben it is mere neglect of the duties imposed by the act. We do
the lessee who creates the necessity for it by employ- not consider that iu so holding we are overruling the
ing twenty-five or more operatives in some story above decision of this court in Aldrich v. Howard, 7 R. I. 199;
the second ? It might be plausibly argued that the for there no remedy whatever was given which was
matter was purposely left uncertain so that the liabil- available for individuals, and moreover the action was
ity to the duty might be determined and enforced in not for any mere neglect of duty, but for a transgres-
equity. The uncertainty on this point affords an argu- sion which made the building complained of illegal,
ment, to say the least, that no civil liability was in- and so a standing nuisance from which the plaintiff
tended except such as could be enforced by the equit- was suffering a continuing injury. The court in its
able remedy provided by the statute; for certainly the decision in Aldrich v. Howard, following Couch v.
General Assembly would have made clear who is to Steel, laid down the law more broadly than was neces-
perform the duty if it had meant to have the neglect sary for the decision, and more broadly too than would
of it entail so incalculable a liability. Further it will now be sustained by the English courts, unless the
be observed that the duty does not attach unless there comments on Couch v. Steel, made by Lord Cairns and
are at least twenty-five operatives einployed in some Lord Cockburn iu Atkinson v. Newcastle Waterrorks
story above the second. Now if the owner be subject | Co., are very misleading. See also Addison on Torts,
to the duty, even when the building is let, the lessee of 67; Stevens v. Jeacocke, 11 Q. B. (N. S.) 731, 741; Flynn
an upper story, employing less than twenty-five oper- v. Canton Co. of Baltimorc, 40 Md. 312; Heeney t.
atives there, has it in his power, by adding to the Sprague, 11 R. I. 156.
number, to expose the owner to this tremendous lia-

Demurrer sustained.
bility, and unless notice be necessary, which if the lia-
bility exist, is extremely doubtful, to say the least, he
may expose him at any time without notice of the ex-

UNITED STATES SUPREME COURT ABposure. It cannot be supposed that the General As

STRACT. sembly intended this.

The plaintiff contends that the duty was imposed particularly for the benefit of the operatives, and that

JURISDICTION-AMOUNT IN DISPUTE.-The value of therefore if any operative be injured by the neglect of

two sections of land which are in dispute is conceded it, he ought to have his action for damages for his in

to be more than $5,000. The complaint alleges a joint jury. This view however is not so clear as at first

entry and ouster, and the answer does not set up sepblush it seems.

arate claims to distinct parcels of the land by the sevUndoubtedly if there be a fire escape on a building

eral defendants. The judgment for the recovery of where there are operatives, they will have a right to use

the possession is against all the defendants jointly. In it in case of fire; and so we apprehend, will any other

this respect the case is entirely different from those of person who happens to be there, have as good a right

Tupper v. Wise and Lynch v. Bailey, 110 U. S. 398; 2 as the operatives, which they would not hare if the

N.Y. Sup. Ct. Rep. 20, 27. We have jurisdiction therefire escapes were required particularly for the oper

fore. Friend v. Iise. Opinion by Waite, C. J. atives. If in a building six stories high there were [Decided May 5, 1884.] twenty-five operatives in the third story, making the TRUST-PROCEDURE-GENERAL GUARDIAN OR GUARfire escape necessary under the act, the fire escape, we DIAN AD LITEM--STATE LAW--EXECUTOR AND TRUSTEE think, would have to go to the top, is the building was -WHEN ONE CAPACITY CEASES AND ANOTHER BEGINS. occupied to the top, though there were not so many as -What was the proper method of proceeding against twenty-five in either of the higher stories. Moreover defendants, whether by general guardian or guardian the inspector of buildings bas a right to exempt any ad litem, is a question local to the law of the jurisdicbuilding from the operation of section 23, though it tion, and in the proceeding under review, was passed would otherwise be subject to it. It seems improb- on by the State court. It found in the decree that able that the inspector would have this power if the “the said minors were duly represented by their guarduty was imposed particularly for the benefit of the dians," and that finding cannot be questioned collatoperatives. The inference is that the General Assem- erally, as it is not a question of jurisdiction. Coit F. bly regarded the duty as a duty to the public, and Hlaven, 30 Conn. 190; Christmas y. Russell, 5 Wall. 290; therefore empowered the inspector as the representa- | Thompson v. Whitman, 18 id. 457. It seems to be in tive of the public to remit or exact it. Section 6 of the accordance with the general practice in Comecticut act charges the inspector with the duty of executing for a general guardian to be made a party and to doits provisions.

fend for his ward, and that in such cases the appointSection 23 is only one of a multitude of provisions ment and appearance of a guardian ad litem are not contained in the act in regard to buildings and their

necessary. Reeves Dom. Rel. 267; 1 Swift's System, construction in the city of Providence. The obvious

217; 1 Swift's Digest, 51 ; Wilford v. Grant, Kirby, 114. purpose was to secure good, safe, and durable houses, In the original bequest to the children of Christopher as a measure of police, for the general security. We Colt in the will of annuities for education and support do not discover any indications of regard for particu- during minority, and 100 shares of stock, payable on jar persons, or classes of persons, except the ambigu

arriving at age, there are no words creating a trust; ous indication which we have already cosidered. The

and yet the executors in the meantime were bound to act is local and therefore not to be extended by con- them, in respect to these benefits and interests, as exstruction further than the well-established canons re.

ecutors, and yet in trust, quite as much as they were, quire. Evidently the inspector of buildings was

in respect to the 500 shares, by the words of that bemainly relied on to carry it into effect. The remedy quest. As long as personal property is held by execuby penal prosecution and the remedy in equity are tors as part of the estate of the testator, for the payclearly his only weapons. Undoubtedly the remedy ment of debts or legacies, or as a residuum to be disin equity is available in a proper case to individuals. tributed, they hold it by virtue of their office, and are It seems to us that further than this, to quote the accountable for it as executors; that liability only language of Lord Cairus, “it was no part of the scheme ceases when it has been taken out of the estate of the of this act to create any duty which was to become the

testator and and appropriated to and made the prop. subject of an action at the suit of individuals," and

erty of tbe cestui que trust. Bond v. Graham, 1 Hare,

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482, 484; Arthur v. Hughes, 4 Beav. 506; Penny v. decision within the meaning of those terms as used in Watts, 2 Phil. Ch. Cas. 153; Hall v. Cushing, 9 Pick. sections 702 and 1911 of the Revised Statutes regulat395; Dorr v. Wainwrigbt, 13 id. 328; Towne v. Ammi. ing writs of error and appeals to this court from the down, 20 id. 540; Newcomb v. Williams, 9 Metc. 525; Supreme Court of the Territory. Section 702 provides Conkey y. Dickinson, 15 id. 51; Prior v. Talbot, 10 for the review of final judgments and decrees by writ Cush. 1; Miller v. Congdon, 14 Gray, 114; Adams on of error or appeal, and section 1911 regulates the mode Equity, $ 251. "And it may be here observed," says and manner of taking the writ aud procuring the alWilliams on Executors, 1796, pt. 4, bk. 2, ch. 2, & 2, lowance of the appeal. The use of the term “fival de“that when personal property is bequeathed to execu- cisions" in section 1911 does not enlarge the scope of tors, as trustees, the circumstance of taking probate of the jurisdiction of this court. It is only a substitute the will is in itself an acceptance of the particular for the words "final judgments and decrees” in sectrusts. Therefore where the will contains express di- tion 702, and means the same thing. The dismissal of rections what the executors are to do, an executor who the writ was a refusal to hear and decide the cause. proves the will must do all which he is directed to do The remedy in such a case, if any, is by mandamus to as executor, and he cannot say, that though executor, compel the court to entertain the case and proceed to be is not clothed with any of those trusts." Lewin its determination, not by writ of error to review what on Trusts, 156. Decree affirmed. Colt v. Colt. Opin- has been done. Ex parte Bradstreet, 7 Pet. 647; Ex ion by Matthews, J.

parte Newman, 14 Wall. 165. Dismissed. Crawford v. [Decided May 5, 1884.]


[Deoided May 5, 1884.] SUIT TO RECOVER FINE-CANNOT ATTACK JURISDICTION.--One who has been convicted and fined by mili

UNITED STATES CIRCUIT AND DISTRICT tary commission for defrauding the government, and

COURT ABSTRACT.* has conceded that his debt to the government exceeds the fine, and been given credit on the debt to this

SHIP AND SHIPPING-LIEN FOR ADVANCES-NONE IN amount, cannot subsequently attack the jurisdiction

FAVOR OF CO-OWNER.--The plaiutiffs, citizens of New of the court which convicted him in an effort to recover

York, bring this bill against certain citizens of States the fine from the government. The claim of appellant other than New York for an adjustment of accounts is entirely without merit. Under the findings of fact,

between the commou owners of the schooner which this court must accept as true, it is unnecessary

Jennie B. Gilkey. The plaintiffs allege that they made to consider any question involving the authority and certain advances for the benefit of the defendants, to jurisdiction of the military commission before which

enable the vessel to perform her last voyage and earn the claimant was arraigned, and by means of which her freight; and made certain other payments in dethe government compelled him to pay into its treasury sending and compromising an action brought against the sum of $90,000: for it it were conceded that Carver the owners in New York for the wages of the mate. was not subject to be tried in that mode, and that the en

They now move for a preliminary injunction to retire proceedings against him were illegal and void, it strain the defendants from receiving from the registry yet appears that after his release he voluntarily con

of the District Court their several shares of the proceded that there was justly due from him to the gov- ceeds of the vessel, amounting, after payment of the ernment a larger sum than he had paid; and upon the privileged debts, to about $2,900. The plaintiffs admit basis of that concession he secured a credit upon his that they have no privilege in admiralty, nor any accounts for the amount he had so paid, receiving out

right as creditors at large, baving recovered no judgof the balance admitted to be due from and chargeable ment, to intercept these proceedings; but they insist to him the sum of $1,414.45. We can imagine no rea

that in equity one part owner has a lien upon the ship 8011 why it was not competent for him, without refer

for advances which he may have made for supplying once to the legality of the proceedings before the mili her needs for a voyage, or for the benefit of bis cotary commission, to come to an understanding with

owners in any other respect. This brings up the ques. the authorized officers of the government, substantially tion whether the decision of Lord Hardwicke in Dodupon the basis suggested by him and acceded to by dington v. Hallett, 1 Ves. Sr. 497, is to be taken as law them. Even if the original payment to the govern

here. It was long since overruled in England. See under duress, he had the right sub

Ex parte Young, 2 Ves. & B. 242, aud 2 Rose, 78, note; sequently to agree, as he did, that what the

Ex parte Harrison, id. 76; Ex parte Hill, 1 Midd. government coerced him to pay was in fact fairly due

61; Green v. Briggs, 7 Hare, 279, per Wigram, V. C.; upon a proper settlement of his accounts. And when, Lindl. Partn. (4th Eng. ed.) 67. In this country it has by way of supplement to and in execution of that been held in the courts of New York and Kentucky to agreement, he accepted as compensation for his ser

announce a sound rule of equity, Mumford v. Nicoll, vices, or as a gratuity, a portion of the balance justly 20 Johus. 611; Hewitt v. Sturdevant, 4 B. Mon, 453 ; due from him, he is estopped to raise any question as

Pragoff v. Heslep, 1 Am. Law Reg. 747. In some other to the legality of the methods employed to collect from courts the later English rule bas been thought the more him what should have been paid without compelling sound. Merrill v. Bartlett,6 Pick.46; Patton v.The Ranthe government to expend for its collection the large dolph, Gilp. 457; 3 Kent, 40; Story, Partn., $s 442-444, sum that was allowed Moulton for bis services. The and notes; Story Eq. Jur., $1442, and note. In this Cirjudgment is affirmed. Carver v. United States. Opin-1 cuit two judges of the Supreme Court have said ihat a jou by Harlan, J.

part owner has nolien or right of priority in equity [Decided May 5, 1881.)

upon the ship itself for a balance of account which JURISDICTION-"FINAL JUDGMENT OR DECISION may be due him. Macy v. De Wolf. 3 W. & M. 193; R. S., secs. 702, 1911-MANDAMUS.—This motion is The Larch, 2 Curt. C. C. 497, 434. Cir. Ct., Dist. Mass. granted on the authority of Insurance Co. v. Com- | April 28, 1884. The Jennie B. Gilkey. Opinion by stock, 16 Wall. 258, and Railroad Co. v. Wiswall, 23 id. Lowell, J. 507. An order of the Supreme Court of Washington PATENT-ISSUED HERE AND IN CANADA--VOID IN Territory dismissing a writ of error to a District Court, CANADA - EFFECT HERE because of the failure of the plaintiff in error to file the STATUTE.--A statute of another country, when considtranscript and have the cause docketed within the time required by law, is not a final judgment or a final

*Appearing in 20 Federal Reporter.

ment was



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ered by our courts, carries the construction given it reasonable diligence in performing his part.
by the courts of that country. In Elmendorf v. Tay- We think that the contract which the law implies is
lor, 10 Wheat. 159, Chief Justice Marshall emphasized only that the merchant and ship-owner should each
this doctrine by asserting broadly that “no court in use reasonable dispatch in performing his part.
the universe which professed to be governed by princi- The delay having bappened without fault ou either
ple would undertake to say that the courts of Great side, and neither having undertaken by contract, ex-
Britain or of France, or of any other nation, had mis- press or implied, that there should be no delay, the
understood their own statutes, and therefore erect it- loss must remain where it falls." Clifford, J., in the
self into a tribunal which should correct such misun- case of Davis v. Wallace, supra, intimates the same
derstanding." A patent issued successively by Canada opinion. “Delay beyond that,” he says (i. e., the time
and the United States, and afterward declared void necessary for unloading), “if occasioned by natural
ab initio by a Canadian court, does not by that fact ex- cause over which the defendant bas no control, may
pire in this country, but will be regarded as if it had perhaps be excused in a case where there is no express
never existed in Canada at all.” Cir. Ct., Dist. N. J. contract as to time." See Carsanego v. Wheeler, 16
March, 1884. Bate Ref. Co. v. Gillett. Opinion by Fed. Rep. 248; Cross v. Beard, 26 N. Y. 85. Dist. Ct.,
Nixon, J.

S. D. N. Y. April 16, 1881. Fish v. One Hundred and

Fifty Tons of Brown Stone. Opinion by Brown, J.

on freight consigned to a consignee at a particular VISION OF COSTS.—Where a schooner was lost in a col-
wharf, and there is either no bill of lading or the time lision with a steamer, occasioned by the fault of both,
for delivery is not specified, and there is no contract and the damages were to be divided equally between
on the subject, hrld, that the obligation in respect to the owners of the two, held, that from the damages
delivery is that each party shall use reasonable dili- otherwise due to the owners of the schooner, the own-
gence in performing his part to effect the delivery; ers of the steamer might recoup balf of the damages
and that in the absence of any special usage of the recovered against the steamer by the owners of the
port or of the trade neither will be liable to the other cargolhat was lost with the schooner, because each party
for any detention of the vessel arising from any cause is liable for that loss, according to the Atlas, 93 C. S.
over which he has no control, and for which he is not 302. A recoupment of this sort has been allowed in
in fault. Howe v. Woodruff, 20 Fed. Rep. 136, 137 ; several cases. See The Eleonora, 17 Blatchf. 88; Leon-
Aylward v. Smith, 2 Low. 192. Where the bill of lad- ard v. Whitwill, 10 Ben. 638; The C. H. Foster, 1 Fed.
ing is silent as respects the time in which the cargo is Rep. 733; In re Leonard, 14 id. 53; Atlantic Ins. Co. v.
to be delivered, the only ground for holding the con- Alexandre, 16 id. 279; The Canima, 17 id. 271. That
signee liable is some fault on his part in the acceptance one vessel was wholly lost does not prevent a coutri.
of the cargo. Rodgers v. Forresters, 2 Camp. 483; bution in case of mutual fault. The North Star, 106
Burmester v. Hodgson, id. 488. If on the other hand U. S. 17; 1 Sup. Ct. Rep. 41. (2) Decree that costs be
the bill of lading limits the time within which the de- equally divided, in a case where damages were equally
livery is to be made, that limitation is construed in divided, even though the libellant's vessel was wholly
maritime law as a stipulation for the benefit of the lost. The particular circumstance of each case must
ship, designed to cast upon the consignee all risk of govern. I adhere to a remark that I made incident-
detention beyoud the stipulated period; and no cus- ally in The Mary Patten, 2 Low. 196, 199, that the gen-
tom of the port would be allowed to override such a eral rule, so far as there can be one, should, in the ab.
stipulation. Randall v. Lynch, 2 Camp. 352; Philadel- sence of particular circumstances, give a libellant in &
phia & R. R. Co. v. Northam, 2 Ben. 1; Gronstadt v. cause of collision his costs, though he recover but half
Witthoff, 15 Fed. Rep. 265, 271. It is in the power of his damages, where the loss is all on one side. Such
the vessel always to provide against any loss on her has been the practice in the first and second Circuits
part through detention from accidental causes at the of late years. The Austin, 3 Ben. 11; The Baltic, id.
place of discharge, if such be the intention of the par- 195; The Paterson, id. 299; The City of Hartford, 7
ties, by inserting in the bill of lading the time within id. 510; The William Cox, 3 Fed. Rep. 645; The Ex-
which the cargo must be received, or by other familiar celsior, 12 id. 195; The Eleonora, 17 Blatchf. 88. Cir.
provisions,such as that the vessel shall have “dispatch,' Ct., Dist. Mass. April 29, 1884. The Hercules. Opin-
or "quick dispatch," either of which would cast the risk ion by Lowell, J.
of delay upon the consiguee. Smith v. Sixty Thou-
Band Feet of Yellow Pine Lumber, 2 Fed. Rep. 396; RHODE ISLAND SUPREME COURT
Thacher v. Boston Gas-Light Co., 2 Low. 361; Davis v.

Wallace, 3 Cliff. 123; Kearon v. Pearson, 7Hurl. & N.386;
One Thousand One Hundred Tons of Coal, 12 Fed. Rep.

DAMAGES - SHERIFF - ESCAPE - JUDGMENT PRIMA 185; Choate v. Meredith, 1 Holmes, 500; Bjorkquist v.

FACIE EVIDENCE. -In an action on the case against a Steel Rail, 3 Fed. Rep. 717. But if none of these pre

sheriff for permitting the escape of a party arrested on cautions are taken by the carrier I see no ground upon

original writ or mesne process, the measure of damages which the carrier can charge the consignee with a

is the damages actually sustained, and the amount breach of duty where the detention has arisen from

the judgment recovered in the action in which the escauses of which neither has any control. In the case

cape is permitted is only prima facie evidence, open to of Ford v. Cotesworth, L. R., 4 Q. B. 1:27, Blackburn, rebuttal by counter evidence adduced by the sheriff

. J., savs (page 133): “Where the act to be done is one

Patterson v. Westervelt, 17 Wend. 543; Brooks V. in which both parties to the contract are to concur,

Hoyt, 6 Pick. 468; Eaton v. Ogier, 2 Me. 46; State and both bind themselves to the performance of it,

Treasurer v. Weeks, 4 Vt. 215; Danforth v. Pratt, 9 there is no principle on which, in the absence of a stip

Cush. 318; A rden v. Goodacre. 11 C. B. 371; Shuler v. ulation to that effect, either expressed by the parties

Garrison, 5 W. & Serg. 455; Smith v. Hart, 1 Brev. or to be collected from what they have expressed, the

146; Spafford v. Goodell, 3 McLean, 97; Blodgett v. damage arising from an unforeseen impediment is to

Town of Brattleboro, 30 Vt. 579; Hootman v. Shriner, be cast by law on the one party more than on the

15 Ohio St. 43. Sheldon v. Upham. Opinion by Durother; and consequently we think that what is im

fee, C. J. plied by law in such a case is not that either party (Decided April 5, 1884.] contracts that it shall be done within either a fixed or a reasonable time, but each contracts that he shall use

*To appear in 14 Rhode Island Reports.

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