for salt; and that the loss occasioned by the injury in the delay of the vessel, preventing her arrival till after the fishing season, as she was compelled to unload and take in another cargo of salt, amounted to between 10 and 11 cents per bushel, making the loss in the whole cargo $2,101.20, and contended that they should be allowed to give this evidence and to recover damages for the said loss, estimating the salt by the price at Georgetown in the fishing season when the vessel would have arrived.

But the court refused to allow the said evidence to be given by the plaintiffs, to which the plaintiffs, by their counsel, excepted.

Plaintiffs' third bill of exceptions:

And the plaintiffs having, after the foregoing evidence, farther offered evidence to prove that it is the usage of vessels coming out of the docks of Liverpool into the river to have their anchors slung in a tackle ready to be thrust over the bows, and in a situation to be dropped immediately on passing through the lock connecting the dock with the basin, and before passing from the latter into the river; that the anchor was not put over the bow nor attempted to be so done in the present case, on board the Tasso, until this vessel had passed into the river and was approaching the Francis Depau; and the defendant having offered in evidence the deposition of Frederick Lewis to prove that the Tasso, in passing from the basin through the piers thereof into the river had the said vessel in check by a hawser extending therefrom to one of the said piers, which hawser parted as the vessel cleared the pier head, and that the fish pennant or tackle suspending the anchors of said vessel broke in the attempt to get them over the bow of the vessel as aforesaid, and they thereupon fell upon the deck of the vessel; and the plaintiffs having further offered evidence by the pilot of the Francis 31*] Depau, to prove that defendant's *vessel appeared badly furnished, and that the mate thereof (the master being absent) at the time, declared that he had not a rope on board fit to hang a cat.

And in a further trial of this cause, the plaintiffs, after the depositions for the plaintiffs and defendant were read, having offered evidence to show that in the management of a vessel when the fish tackle breaks, and it is important that the anchor should be thrown out, that it ought to be and can be accomplished in a short time by fixing another rope by a strop to the anchor and heaving it over the bows, and that such new fixture can be applied in a minute or two.

gansett, 1 Blatchf., 211; The Rhode Island, Abb. Adm., 100; The Narragansett, Olcott, 388; Vantine v. The Lake, 2 Wall. C. C., 52; Swift v. Brownell, 1 Holmes, 467; The Morning Star, 4 Biss., 62; The Sunnyside, 1 Brown Adm. 415; The Mayflower, 1 Brown Adm., 376: The Transit, 4 Ben., 138; The Favorita, 4 Ben., 132; The Emily, 4 Ben., 235; The Mayflower, 5 Am. L. T. Rep., 367; 2 W. Rob., 279; 3 W. Rob., 283; 1 Wall., 269; 6 McLean, 238; 2 Ben. Rep., 125; 7 Blatchf., 385; 4 Blatchf., 489; 3 Duer, 466; 6 Duer, 315, 363; 3 Fost. (N. H.), 171; 16 N. Y., 489; The Stormless, 1 Low.., 153.

Expected profits except where accident was intentional or malicious are not allowed. The Newhall, 3 Ware, 105.

But in cases of willful and malicious collision anticipated profits or a sum above the actual damage may be allowed as exemplary damages. Ibid; Ralston v. The State Rights, Crabbe, 22.

And the defendant having offered the following prayer:

"That if the jury shall believe from the evidence that the collision between the Tasso ard the Francis Depau was occasioned by the breaking of her hawser and fish tackle, yet, from the said facts, the jury are not warranted in inferring that the said vessel, the Tasso, at the time of her sailing, was unseaworthy.' The court gave the instruction as prayed, to which the plaintiffs, by their counsel, excepted. And the plaintiffs then prayed the court to instruct the jury, that if they believe from the evidence that the collision took place as above stated, then such breaking of the said hawser and tackle is no excuse for the collision on the part of the defendants; which the court refused; to which refusal also the plaintiffs excepted.

Mr. Chief Justice TANEY delivered the opinion of the court:

This case arises from a collision in the port of Liverpool, between the bark Tasso and the ship Francis Depau, in which the latter sustained considerable injury. The vessels were both American; the Francis Depau being owned by the plaintiffs in error, and the Tasso by the defendant.

It appears from the evidence, that at the time the accident happened, the Tasso was in charge of a regular pilot, leaving the Prince's dock on her homeward voyage; and the Francis Depau was at anchor in the harbor, laden with salt, and ready to sail. And in order to prove that the injury arose from the unskillful management of the Tasso, the plaintiffs offered in evidence that it is the usage of vessels coming out of the docks of Liverpool into the river, to have their anchors slung in tackle, ready to be *thrust over the bows, and in a situation [*32 to be dropped immediately on passing through the lock which connects the dock with the basin, and before passing from the latter into the river; and that the anchor of the Tasso was not put over the bow, nor was it attempted to be done, until she had passed into the river, and was approaching the Francis Depau.

The defendant then offered testimony to show that in passing from the basin, between the piers into the river, the Tasso was held in check by a hawser fastened to one of the piers, but that the hawser broke just as the vessel cleared the pier head; and the pilot perceiving that she was approaching the plaintiffs' ship, thereupon gave orders to get an anchor ready. The anchors were accordingly fixed as soon as pos

For the loss of the cargo on board the vessel at the time of the collision the measure of damages is the value of the goods at the place of shipment. Smith v. Condry, 17 Pet., 20; The Joshua Barker, Abb. Adm., 215; The Mary J. Vaughan, 2 Ben., 47.

Cost of lading and interest added from time of collision. The Ocean Queen, 5 Blatchf., 493; Dyer v. Nat'l Nav. Co., 24 Int. Rev. Rec., 198.

The market price at port of delivery may be measure of damages where it appears that the collision prevented a delivery. The Joshua Barker, Abb. Adm., 215.

Damages were allowed in the following cases which were determined by the peculiar circumstances of the accident: The Ann Caroline, 2 Wall., 538; Halderman v. Beckwith, 4 McLean, 286; Brady v. The New Philadelphia, 19 How. Pr., 315; Naugatuck Transportation Co. v. The Rhode Island, 6 N. Y. Leg. Obs., 103.

sible, in the manner that is customary in going out of the port; and an attempt was made to get one of them over the side, but the tackle broke, and both anchors fell on deck, and the vessel struck the Francis Depau, and thereby occasioned the injury for which this suit is brought; that everything was done on board the Tasso, according to the directions of the pilot, and every effort made to prevent the col lision; but that it was blowing fresh, and the tide setting towards the plaintiffs' ship, and the Tasso would not mind her helm.

To rebut this testimony, the plaintiff offered in evidence, by the pilot, that the defendant's vessel appeared to be badly furnished, and that at the time the accident happened, the mate who had charge of her under the pilot (the master being absent), declared that he had not a rope on board fit to hang a cat; and further offered in evidence, that where the fish tackle breaks, and it is important that the anchor should be thrown out, it can be accomplished in a minute or two, by fixing another rope by a strop to the anchor and heaving it over the bows. At the trial, several exceptions were taken by the plaintiffs to different instructions given by the court to the jury; and the verdict and judgment in the Circuit Court having been in favor of the defendant, the case has been brought here for revision by a writ of error sued out by the plaintiffs. We proceed to examine the directions excepted to, in the order in which they appear in the record.

Upon the evidence above stated, the defendant asked the court to instruct the jury that under the statutes of Great Britain, of the 37 33*] *Geo. III., ch. 78; 52 Geo. III., ch. 39, and 6th of Geo. IV., ch. 125, the defendant was not responsible for any damage occasioned by the default, negligence, or unskillfulness of the pilot. The court gave this instruction, and that is the subject of the first exception.

from the port of Liverpool, was not answerable for damages occasioned by the fault of the pilot. But in the case of the Attorney-General v. Case (3 Price, 302), the same question was discussed in the argument before the Court of Exchequer, and it appears to have been the opinion of that court, that the master and owner were liable in the same manner as if the pilot had not been on board.

The question, it is true, did not necessarily arise in the last-mentioned case, for the vessel was at anchor in the River Mersey when the disaster happened; and a vessel at anchor was not bound to have a pilot on board. If in that situation the master thought proper to employ one, the pilot was undoubtedly his agent, and consequently he was responsible for his acts. But in *deciding the case, the court ex- [*34 pressed their opinions on the two statutes of Geo. III., before mentioned, in cases where pilots were required to be on board; and held that the provisions of the 52 Geo. III., exempting masters and owners from liability, did not extend to cases embraced by the local pilot act for Liverpool, and strongly intimated that there was a distinction between the obligation to take a pilot under a penalty, and the obligation to pay full pilotage to the first that offered, whether he was taken or not.

Since these decisions were made in the King's Bench and Exchequer, the 37th Geo. III. has been repealed by the 5th of Geo. IV., and the 52 Geo. III. has been repealed by the general pilot act of the 6th of Geo. IV.; and these two statutes of Geo. IV. were the laws in force at the time of the collision in question. But although some changes were made in the Liverpool pilot act in the first mentioned statute, and in the general pilot law by the second, yet in regard to the subject now under consideration, these two statutes are the same in substance with the preceding ones which they respectively repealed; and the adjudged cases above mentioned apply with the same force to the question before us, as if they had been made since the passage of the acts of Geo. IV.

The collision having taken place in the port of Liverpool, the rights of the parties depend upon the provisions of the British statutes, then in force; and if doubts exist as to true construction, we must of course adopt In determining, however, the true constructhat which is sanctioned by their own courts. tion of these acts of Parliament, we are not left The 52 Geo. III., mentioned in this excep- to decide between the conflicting opinions of tion, is a general act for the regulation of pilots the King's Bench and Court of Exchequer. and pilotage, within the limits specified in the The same question has since, on more than one law, and requires the masters of vessels under occasion, arisen in the British Court of Ada certain penalty to take a pilot, and provides miralty, and the decision in the King's Bench that no owner or master shall be answerable has been constantly sustained; and we presume for any loss or damage, nor be prevented from it is now regarded as the settled construction recovering on any contract of insurance, by reason of any default, or neglect on the part of, the pilot. But this statute did not repeal the previous one of 37 Geo. III., for the regulation of pilots conducting ships into and out of the port of Liverpool; and the last-mentioned law required the master to pay full pilotage to the first who should offer his services, whether he The second also is free from objection. The was employed or not. This act did not, how-question there was as to the rule of damages in ever, impose any penalty for refusal; and con- case the plaintiffs should show themselves entitained no clause exempting the master and tled to a verdict. They offered to prove that owner from liability for loss or damage arising if the ship had not been prevented from sailing from the default of the pilot, where one was by the injury complained of, she would in due taken on board. course have arrived in Georgetown (as was intended when the lading was taken in) in time for the sale of her cargo at the fishing season in the Potomac River, when there is a [*35 great demand for salt; that the injury delayed

Upon these acts of Parliament, the Court of King's Bench held, in the case of Caruthers v. Sydebotham (4 Maule & Selw.,77), that the master or owner of a vessel trading to and

of these pilot acts. (Abb. on Ship., Shee's edition, 184. n. z.; The Maria, 1 Rob. New Admiralty Reports, 95; The Protector, 1 Rob. New Adm. Rep., 45; The Diana, 1 Rob. New Adm. Rep.) We think, therefore, that the Circuit Court was right in the first instruction given to the jury.

her, and prevented her arrival until the season was over, and thereby made a difference of ten or eleven cents per bushel in the value of the salt at her home port, and occasioned a loss upon the cargo of $2,101.20. The defendant objected to this testimony, and the court refused to admit it.

It has been repeatedly decided in cases of insurance, that the insured cannot recover for the loss of probable profits at the port of destination, and that the value of the goods at the place of shipment is the measure of compensa tion. There can be no good reason for establishing a different rule in cases of loss by collision. It is the actual damage sustained by the party at the time and place of the injury that is the measure of damages.

Tasso is not answerable; in the two latter he is. The court, therefore, were right in refusing the direction asked for by the plaintiffs, but erred in giving the one before mentioned at the request of the defendants.

And for this reason the judgment of the Circuit Court must be reversed.

ORDER.

This cause came on to be heard on the tran

script of the record from the Circuit Court of holden in and for the County of Washington, the United States for the District of Columbia, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged Circuit Court in this cause be, and the same is by this court, that the judgment of the said hereby reversed with costs; and that this cause be, and the same is hereby remanded to the Isaid Circuit Court, with directions to award a venire facias de novo.

The third and last exception was taken to an instruction given upon the prayer of the defendant, and also to the refusal of the court to give a direction asked for by the plaintiffs. The defendant prayed the court to instruct the jury, that if they believed that the collision was occasioned by the breaking of the hawser and fish tackle, yet from those facts the jury were not warranted in inferring that the Tasso at the time of her sailing was unseaworthy; which direction the court gave. And thereupon the plaintiff prayed the court to instruct *RICHARD B. ALEXANDER, Plaint- [*37 the jury, that if they believed the collision took place as above stated, then such breaking of the hawser and tackle is no excuse for it on the part of the defendant; and this direction the court refused to give.

Cited-5 How., 500, 503; 6 How., 435; 13 How., 113; 14 How., 538; 7 Wall, 64, 70; 8 Wall, 21; 1 Cliff., 348 3 Biss., 27; 4 Biss., 72: Abb. Adm., 103, 104, 207; 2 Curt., 72:1 Bond, 113; 2 Ben., 50;7 Ben., 125, 128 132; 6' McLean, 182; 5 Blatchf., 494; 1 Brown, 180183, 380, 381.

iff in Error,

v.

MOSES GRAHAM, Defendant in Error.

error to the Circuit Court of the United for the County of Washington.

costs.

LESSEE OF JOHN MERCER, AND MARY
SCOTT MERCER, His Wife, Plaintiffs in
Error,

v.

WILLIAN CARY SELDEN, Defendant.

Ejectment- Virginia statute of limitations—adverse possession-disabilities of infant and feme covert-tenancy by courtesy must arise from actual seisin during coverture.

Now, these two prayers involve the same principles, and are both liable to the same objections. By whose fault the accident hap- The plaintiff in error having filed an order in pened was a question of fact to be decided by writing, directing the clerk to dismiss this suit, the jury upon the whole evidence before them. it is thereupon now here considered, ordered And the error in the prayer on the part of the and adjudged by this court, that this writ of plaintiffs, as well as that offered by the defend-error be, and the same is hereby dismissed with ant, consists in this, that it sought to withdraw from the jury the decision of the fact, and asked the court to instruct them, as a matter of law, upon the sufficiency or insufficiency of certain evidence offered to prove it; and both prayers are still more objectionable because each of them asks the instruction upon a part only of the testimony, leaving out of view various other portions of it which the jury were bound to consider in forming their verdict. If the collision was the fault of the pilot alone, then the owners of the Tasso are not 36*] answerable. But if it was altogether *or in part caused by the misconduct, negligence, or unskillfulness of the master or mariners, the owner is liable. And if the equipments and tackle were in this case insufficient, and not as strong and safe as those ordinarily used for such vessels in such cases, and thereby rendered the care and skill of the pilot unavailing, it was undoubtedly the fault of the master or owner; and is equally inexcusable as the omission to provide a competent crew. And it was for the jury upon the whole evidence to say whether it was the result of accident, arising from strong wind and tide, against which ordinary skill and care could not have guarded; or the fault of the pilot; or the misconduct, negligence, or unskillfulness of the crew; or the insufficiency of the hawser, ropes, or equipments with which the vessel was furnished. In the two first instances the owner of the

The statute of limitation of Virginia, passed in 1785, barred the right of entry, unless suit was of action accrued. The savings are infancy, coverbrought within twenty years next after the cause ture, &c., and such persons are barred if they do not bring their action within ten years next after their disabilities shall be removed.

The circumstances under which the defendant held in this particular case, constitute an adverse possession.

Disabilities which bring a person within the exceptions of the statute cannot be piled one upon

NOTE. As to adverse possession, and requisites of, see note to Ricard v. Williams, 7 Wheat., 59.

That mortgageor's possession is not adverse, see to Higginson v. Mein, 4 Cranch, 415.

The occupancy necessary to constitute adverse possession. See note to Ewing v. Bennett, 11 Pet., 41. Tenancy by the curtesy, what seizin is necessary for, and in what lands.

Tenancy by the curtesy is an estate for life, created by the act of law. When a man marries a

THIS case was brought up bhe United States heirs were not only infants, but united in their

3. That this is especially true where a husband, who having rightfully come into possession jure uzoris, holds out possession against her heir after descent cast by her death; however hostile the claim and strong the color of exclusive title asserted for himself; and though the heir be sui juris, and in no nearer relation to husband and wife than simply as her heir-at-306; Hudson v. Hudson's Adm., 6 Munf., 355; law.

mother, or when she was both an infant and a married woman, in April, 1794. Her disability of infancy ceased a few months after her marriage, and her disability of coverture ceased at her death, in 1812. But so far as regards her daughter, Mrs. Mercer, there has been a sucession of disabilities from the death of Mrs. Selden to the present day.

Can these disabilities be united so as to continue her protection?

The authorities relied upon to maintain the power of tacking disabilities, are Blanchard on Lim., 19, 20, in Law Library, 10, 11; 2 Preston on Abstracts, 349; Cotterell v. Dutton, (4 Taunton, 826). But even Blanchard's opinion is, that successive disabilities in different persons cannot be connected; and Preston states that the later decisions are, that suc cessive disabilities cannot be united (2 vol., p. 341); and the following authorities prove that they cannot: Adams on Ejectment, 60: 6 East, 80; approved in Tolson v. Kaye (3 Broderip & Bingham,223), decided in Common Pleas, in 1822; Eager and wife v. Commonwealth (4 Mass., 182), Griswold v. Butler (3 Conn. Rep., 227). Floyd v. Johnson (2 Littel, 114), Clay's Heirs v. Miller (3 Monroe, 148), Thomp son v. Smith (7 Serg. & Rawle, 209), Demarest 40*] et *ux. v. Winkoop (3 Johnson's Ch. Rep., 129), Jackson v. Wheat (18 Johns., 40), Jackson v. Johnson (5 Cowen, 74), Bradstreet v. Clarke (12 Wendell, 602), Doe, dem. Lewis, v. Barksdale (2 Brock., 436), Parsons v. McCracken (9 Leigh, 495). In the last case Judge Parker cites the case of Swann v. Selden, as authority for the same proposition, it having been recognized by Judges Cabell and Brockenborough.

Taylor, dem. Atkins, v. Horde (1 Burrow, 60), was upon a special verdict finding the facts, and referring the law to the court; and in that case it being ascertained that the plaintiff's right of action had accrued more than twenty years before the bringing of the suit, he was regarded as having the onus thrown upon him of showing why he had not sooner entered. This case is reported also in Cowper, 689, and 6 Brown's P. C., 633; it is also stated in 3 Cruise's Dig., title 31, ch. 2 and 33.

In this case (Taylor v. Horde), the verdict did not find that the possession was adversary; but it found the facts upon which the court pronounced that the plaintiff's title was barred by the statute. The case seems to have been briefly this. There was tenant in tail with power to make leases for lives, and with remainder in tail to the right heirs of the grantor. The tenant in tail made leases for three lives, and afterwards suffered a common recovery with a view of barring the entail, and cutting off the remainders limited thereupon. The person entitled to the remainder in fee died, [*41 having devised it to the lessor of the plaintiff. The tenant in tail afterwards died in the year 1711 without issue, and his heir, claiming under the common recovery, entered, and he and those claiming under him continued to hold the land till the year 1753. The survivor of the three lessees for life died in 1752, and then the devisee of the remainderman in fee entered and made the lease on which the action was brought. The defendants defended themselves upon two grounds: 1st. That the common recovery had Here it must be remembered that we are try-barred the remainder in fee; and 2d. That if ing this question, not upon the testimony of it had not, the statute of limitations had barred

If the plaintiffs are not within the exceptions to the statute, then the question is, whether, supposing them to be under no disability, they are within the principle of the statute; or, in other words, has there been an actual adversary possession in the defendant, and those under whom he claims, for fifteen years before bring ing this suit?

time as to create a bar to the redemption. Chaplin v. Chaplin, 7 Viner, 156, pl. 23; 2 Ves., Jun., 453; 4 Kent's Com., 32.

Though the wife's dower be lost by her adultery, no such misconduct on the part of the husband will work a forfeiture of his curtesy; nor will any forfeiture of estate by the wife defeat the curtesy. Buckworth v. Thrikell, 3 Bos. & Pull., 652, note; Butler's note 170 to Co. Litt., 241, a; Roper on Husb. and wife, 36, 37; 3 Preston on Abst. of Title, 384, 385; Park on Dower, 172, 186; 4 Kent's Com., 34. When the estate by the curtesy is once vested in the husband, it becomes liable to his debts, and cannot be devested by his disclaimer. Watson v. Watson, 13 Conn., 82.

The creditors have a right to sell the same on execution at law. Lessee of Canby v. Porter, 12 Ohio,

79.

A voluntary settlement of that curtesy upon the wife by the husband, is void as to his creditors. Vanduzer v. Vanduzer, 6 Paige, 366; Wickes v. Clarke, 8 Paige, 161.

A coinmon law seizin in fact was necessary, during the life of the wife, to enable the husband to claim as tenant by the curtesy. Barr v. Galloway, 1 McLean, 476.

In general, there must be an entry on the land of the wife by the husband, to enable him to claim as tenant by curtesy. Mercer v. Seldon, 17 Pet., 61, and supra.

An actual entry, pedis possessio, by the husband or wife, during coverture, is not necessary to create a

tenancy by curtesy. 7 Wheat., 27; Buckley v. Buck-
ley, 11 Barb., 43, 65.
And no entry on wild lands is necessary. Davis
v. Mason, 1 Pet., 503; Barr v. Galloway, 1 ̊McLean,
476.

A right of entry sufficient, where no adverse pos-
session exists. Davis v. Mason, 1 Pet., 503.
A husband has curtesy of trust, as well as
legal estates; of equity of redemption of a con-
tingent use, or of money to be laid out in land.
Gilb. Uses and Trusts, 2 Vern., 536; 1 P. W., 108;
1 Atk., 606; Robison v. Codman, 1 Sumn., 121:
Dunscombe v. Dunscombe, 1 Johns. Ch., 508; 2
Cow., 439; Stoddard v. Gibbs, 1 Sumn., 263; Sweet-
apple v. Bindon, 2 Term, 536; Watts v. Ball, 1 P.
Wis., 108; Chaplin v. Chaplin, 3 P. Wms., 229; Cash-
borne v. Scarf, 1 Atk., 693; Cunningham v. Moody,
1 Ves., 174; Dodson v. Hay, 3 Bro. C. C., 404.

The husband is tenant by the curtesy of a vested remainder in fee. Young v. Langbein, 7 Hun. N. Y., 151.

In order to give the husband a right of curtesy, the wife must be seized in fact of the premises. Gibbs v. Esty, 22 Hun. N. Y., 266.

Actual seisin, or, at least, a right of possession, in the wife during coverture, is in general necessary to support a tenancy by the curtesy. Ferguson v. Tweedy, 43 N. Y., 543.

In New York, tenancy by the curtesy is not affected by the enabling act, in reference to married women, passed in 1848, or amendments thereto, of 1849. Zimmerman v. Schoenfeldt, 3 Hun., N. Y., 642.