199 U. S. BROWN, HARLAN, MCKENNA and DAY, JJ., dissenting.

and her cargo may be picked up by salvors and taken into an intermediate port, or even to the port of discharge.

That the soundness of this doctrine has not been accepted without challenge is evident, not only from certain expressions by some of the English writers, but notably by Dr. Wendt, in his work on Maritime Legislation, wherein he speaks of The Cito as having caused much surprise among those interested in maritime commerce, and comments upon it as follows (3d edition, page 629):

"So long as this Cito decision stands it gives the cargo owner the full option to take advantage of the common misfortune for the purpose of evading the contract entered into by him. This, I confidently assert, is opposed to every principle of law and justice. A contract, by the law of every civilized country, holds good until both parties to it, of their own free will, agree that it shall not be carried out. Now, how can the abandonment of a ship in such a case as The Cito be taken to be an expression of an agreement on the part of the owners of the vessel to cancel the contract? The action of the crew in leaving a vessel to save their lives is not an act of will at all; they have to desert their vessel under the pressure of a vis major. can this be taken to show an agreement on the part of the ship owner to abandon his part of the contract? He has no power to exercise any option at all. If, when the vessel is recovered and the owner again requires [acquires?] the power to exercise his will in the matter, he then elects not to carry out his contract, and the cargo owner agrees, well and good; the contract is put an end to by mutual consent. To assume, however, such consent on the part of one of the contracting parties from an action forced on his servants by a power which cannot be resisted seems to me to be a doctrine utterly opposed to common sense."

How

The ruling of the English courts that even a delivery of the cargo at the port of destination does not entitle the ship-owners to any freight whatever, seems a somewhat startling innovation upon the ancient rule of the Admiralty, that a loss occa

BROWN, HARLAN, MCKENNA and DAY, JJ., dissenting. 199 U. S.

sioned by a peril of the sea shall be borne as a common burden and shared proportionately by the ship, cargo and freight, as well as a departure from the general rule that neither party can put an end to a contract without the assent of the other.

We consider the sounder doctrine to be that the compulsory abandonment of a ship at sea should be treated merely as a relinquishment of the voyage and of any present intention to continue it, but that if the vessel be subsequently rescued and taken into an intermediate port, the master retains the same right given to him by an ordinary disaster at sea, unattended by an abandonment, to resume possession of the ship and cargo, subject, of course, to the claim of salvors, and carry the latter forward to its destination, provided he act with promptness and before any intervening rights had accrued.

The opinion of the court assumes that the abandonment of the vessel was a repudiation and a rescission of the contract of affreightment, when in fact it was involuntary, designed only to save the lives of the crew, and had as little effect upon the contract as if the vessel had met with a disaster not involving an abandonment and put into a port of safety for repairs. It apparently ignores the principle that, to constitute a rescission, there must be the same intent to rescind as there was originally to contract, and that the intent to rescind should not be inferred without some act which points unmistakably to that conclusion. There is no more reason for holding that the abandonment of the ship was a rescission of the contract of affreightment than that such abandonment was a renunciation of all the owner's title to the ship in case she were subsequently rescued. Whether, if Ward & Company had insisted upon the ship carrying out her contract they might, in case of refusal, have had a cause of action, it is unnecessary to consider. It view of the severity of the storm, and of the danger of remaining on board, the effect of her abandonment on the contract probably never entered the mind of the master. Such abandonment was not a failure to perform the contract in any particular, since it was the result of an overwhelming necessity, and if the vessel were

199 U.S. BROWN, HARLAN, MCKENNA and DAY, JJ., dissenting.

rescued the master might repair and continue the voyage, or trans-ship the cargo to another vessel after the extent of the damage had been ascertained. He might indeed have supposed that the ship was irretrievably lost, but both parties took the chance of its being rescued and taken to a port of safety, when the question would then arise whether prudence required her to be repaired, or the cargo trans-shipped.

In such case the same question arises as if the ship had met with a disaster, and been navigated into a port by her own crew. We think it makes no difference in principle whether a tug is hired by the master to take his ship into port, or a tug in the employment of another person comes along and picks her up. If the cargo-owner had himself rescued the vessel he might doubtless have declared the contract rescinded, but it is quite otherwise if the vessel be rescued by her own master and crew, or be taken in tow by a third party.

Applying the doctrine of the opinion, it would follow (and such are the English cases of The Kathleen and The Arno) that if the vessel be abandoned near her port of destination and towed into such port by a salving tug, she loses her whole freight and cannot even recover on a quantum meruit, though the whole voyage be performed.

This conclusion seems so irreconcilable with natural justice that we are constrained to dissent.

Counsel for Parties.

199 U. S.

MCGUIRE v. BLOUNT.

CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 6. Submitted January 18, 1905, restored to docket January 30, 1905, orally argued October 12 and 13, 1905.-Decided October 30, 1905.

While courts will guard against any attempt of an interested judge to force himself upon litigants, if the record does not clearly establish the disqualification relied upon this court will not disturb the judgment on that ground.

The plaintiff in ejectment must recover on the strength of his own title, which must be sufficiently established to warrant a verdict in his favor, and in the absence of that open, notorious and continuous adverse possession necessary to prove a title by prescription, he may be defeated if the defendant is not a mere trespasser or interloper and shows an outstanding and subsisting title in a stranger.

Spanish documents coming from official custody and bearing on their face every evidence of age and authenticity and which otherwise are entitled to admissibility as ancient documents will not be excluded because subjected to various changes of possession during the transition of the Government of Florida from Spain to the United States and during the Civil War, where it does not appear that they were ever out of the hands of a proper custodian, that the originals were lost, or there had been any fraudulent substitution.

Proceedings had many years ago to convey title under Spanish laws are not to be scrutinized with a view to discovering defects, and, if sufficient under the Spanish system, they will not be upset on technical objections to their regularity even if such objections might have been successfully urged in the forum where, and at the time when, the proceedings were had. Where the court would be bound to set a verdict aside for want of testimony to support it, it may direct a finding in the first instance and not await the enforcement of its view by granting a new trial.

THE facts are stated in the opinion.

Mr. Benjamin Micou, with whom Mr. Hilary A. Herbert, Mr. E. T. Davis and Mr. Simeon S. Belden were on the brief for plaintiff in error.

Mr. William A. Blount in propria persona, and for other respondents, and with whom Mr. A. C. Blount, Jr., was on the brief.

MR. JUSTICE DAY delivered the opinion of the court.

This case was begun in the Circuit Court of the United States for the Northern District of Florida to recover in ejectment certain lands described in the declaration. The defendants answered, and issues were joined as to the right of possession of the lands in question.

Upon the trial, after the testimony was submitted and the cause argued, the court instructed the jury to find for the defendants. Upon writ of error this judgment was affirmed by the Circuit Court of Appeals. 121 Fed. Rep. 1020.

The plaintiffs, when the case was called for trial, filed a written motion or petition, challenging the right of the presiding judge to hear the case, and praying that he "recuse" himself. The petition was denied and the judge presided at the trial of the case. The ground of the petition for recusation was that the wife of the judge had acquired an interest in the property which was the subject matter of the litigation. The petition was not sworn to, and while a statement was made of the desire of the plaintiffs to offer testimony in support thereof, the names of witnesses were not furnished, no affidavits were filed, and no definite statement made of what witnesses would say if permitted to testify. The judge overruled this motion, stating that his wife had no interest in the property, and with a view to convey an interest the vendor had tendered a quitclaim deed to his wife, which had been declined, and no delivery ever made thereof or title vested in her. Later the judge placed on file an affidavit of a real estate agent, stating substantially the same facts.

While the courts cannot too carefully guard against any attempt of an interested judge to force himself upon litigating parties, and should scrupulously maintain the right of every litigant to an impartial and disinterested tribunal for the determination of his rights, we find in this record nothing establishing or offering to establish in any legitimate way the disqualification relied upon because of a pecuniary interest in the