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In Russum v. St. Louis M. Life Ins. Co. (St. Louis Court of Appeals), 5 Big. Ins. Cas. 243, the policy was precisely like the present one, and it was held in an elaborate and learned opinion by Judge Grant, that the entire policy is forfeited on failure to pay interest on the notes. The learned author of these reports, in a note appended to this case in which other cases are reviewed, sums up the result of his investigations on this question as follows: (1) This provision on the face of the policy of life insurance, that it will be forfeited for failure to pay interest on a premium note as agreed, will be respected and enforced in a court of law; (2) equity will in proper cases afford relief from such a forfeiture, and enforce a settlement between the parties, such as will preserve the rights of both." It may here be observed that if the assured in certain or proper cases, where the performance became impossible, or a great hardship, may be allowed some equitable compensation for his investment of payments 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, made with no reference to the non-payment of interest, but only of premiums? In the first class of cases there is some consistency in holding that the non-payment of the interest worked a forfeiture of the whole policy in law, but that in equity the assured should be allowed some reasonable compensation, to be determined by the peculiar circumstances of the case.

In Moses v. Brooklyn Life Ins. Co., 50 Ga. 196, the policy provided for a two-years' policy on the payment of all the premiums for that time. For a part of such premiums notes were given. The condition of entire forfeiture was the failure to pay the premiums or the notes, or any part thereof when due. The dividends were to be applied to the payment of the notes, but there was a balance of such notes unpaid. The plaintiff brought his bill in equity for a paid-up two-years' policy. The court dismissed the bill on the ground of such non-payment of the notes.

In Smith v. St. Louis M. L. I. Co., 2 Tenn. Ch. 727, the condition was the payment of the interest on the notes annually in advance, and it was held that a failure to so pay according to the condition worked a forfeiture, but that the dividends might, under that policy, be applied upon the interest; and the court held the case to inquire whether such dividends as the insured was entitled to would be sufficient to discharge the interest. This was like the case of Hull v. The Same Company, 39 Wis. 397, in which it was provided that the dividends were first to be applied to the payment of the interest, and in that case the dividends exceeded the interest. It was a very different policy from this in many material respects, and may have been very properly called a non-forfeitable policy. The case of this Same Company v. Ross, 63 Ga. 199, follows the Hull case, in passing upon a policy containing the same provisions.

In Knickerbocker Ins. Co. v. Harlan, 56 Miss. 512, the condition of forfeiture for non-payment of interest was no stronger than in this policy, and not repeated as in this, and it was held imperative, and that the non-payment of the interest worked a complete forfeiture of the policy and of the whole insurance. In this case the Grigsby case is disapproved, as well as by five of the above cases holding the same rule.

In Putch v. Phoenix Ins. Co., 44 Vt. 481, the same doctrine is held in respect to the same condition. Atty. Gen. of N. Y. v. North America L. I. Co., 82 N. Y. 172, is to the same effect.

A sufficient number of cases on both sides of the question has been cited and examined, and other cases cited in the respective able briefs of the counsel will add nothing to the weight or reasoning of the cases

already cited. The case was well prepared and most ably presented, and I regret that I am not better able to do justice to a question of so much importance. It is not the business of courts to make contracts for parties, but only to enforce them. If a forfeiture has been clearly and explicitly stipulated, it must be declared in a proper case according to the condition, and a party cannot justly complain of hardship from it, or ask relief against it, where as in this case, he has suffered voluntary default. The assured must be presumed to know and understand the various provisions of forfeiture in his own policy by which he may suffer loss through his own fault or negligence. We cannot but hold that the learned county judge erred in his instructions to the jury on the meaning or construction of this policy.

The judgment of the County Court is reversed, and the cause remanded for a new trial. Cassoday, J., took no part.

FAILURE TO PROVIDE FIRE ESCAPES- NO ACTION BY INDIVIDUAL.

RHODE ISLAND SUPREME COURT, MARCH 1, 1884.

GRANT V. SLATER MILL AND POWER Co.* A local act of the Legislature affecting the city of Provi dence provided that "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. Plaintiff, who was employed as an operative in a building subject to the act, was compelled by a fire to jump from an upper window and thereby suffered injuries, there being no fire escape on the building, and brought trespass on the case against the owner of the building to recover damages for his injuries, alleging the owner's violation of the duties imposed by the act.

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The plaintiff's declaration stated that the defendant corporation owned and rented a building in which he was employed as an operative, that the defendant neg. lected to comply with the provisions of Pub. Laws R. I., ch. 688 of April 12, 1878, although subject to these provisions, in consequence of which the plaintiff was compelled by a conflagration in the building to leap from a window in an upper story in order to save his life; that his leg was fractured in the leap, and ampu tation became necessary.

So much of the act as is involved in the case is re cited in the opinion of the court.

Spooner, Miller & Brown, for plaintiff.

Charles Hart, Benjamin T. Eames & Stephen A. Cooke, Jun., for defendant.

*To appear in 14 Rhode Island Reports.

DURFEE, 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 and 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 person violating any provision of the act, wherein no other penalty is prescribed, shall be fined 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 given, the inference 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 this respect the case at bar differs from Aldrich v. Howard, for in the case at bar there is the remedy by suit in 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 neglect 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, expressum 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

they shall be kept in repair by the owner. If a building be let, why should the owner rather than the lessee be required to furnish the fire escape, when it is the lessee who creates the necessity for it by employing twenty-five or more operatives in some story above the second? It might be plausibly argued that the matter was purposely left uncertain so that the liability to the duty might be determined and enforced in equity. The uncertainty on this point affords an argument, to say the least, that no civil liability was intended except such as could be enforced by the equitable remedy provided by the statute; for certainly the General Assembly would have made clear who is to perform the duty if it had meant to have the neglect of it entail so incalculable a liability. Further it will be observed that the duty does not attach unless there are at least twenty-five operatives employed in some story above the second. Now if the owner be subject to the duty, even when the building is let, the lessee of an upper story, employing less than twenty-five operatives there, has it in his power, by adding to the number, to expose the owner to this tremendous liability, and unless notice be necessary, which if the liability exist, is extremely doubtful, to say the least, he may expose him at any time without notice of the exposure. It cannot be supposed that the General Assembly intended this.

The plaintiff contends that the duty was imposed particularly for the benefit of the operatives, and that therefore if any operative be injured by the neglect of it, he ought to have his action for damages for his injury. This view however is not so clear as at first blush it seems.

Undoubtedly if there be a fire escape on a building where there are operatives, they will have a right to use it in case of fire; and so we apprehend, will any other person who happens to be there, have as good a right as the operatives, which they would not have if the fire escapes were required particularly for the operatives. If in a building six stories high there were twenty-five operatives in the third story, making the fire escape necessary under the act, the fire escape, we think, would have to go to the top, if the building was occupied to the top, though there were not so many as twenty-five in either of the higher stories. Moreover the inspector of buildings has a right to exempt any building from the operation of section 23, though it would otherwise be subject to it. It seems improbable that the inspector would have this power if the duty was imposed particularly for the benefit of the operatives. The inference is that the General Assembly regarded the duty as a duty to the public, and therefore empowered the inspector as the representative of the public to remit or exact it. Section 6 of the act charges the inspector with the duty of executing its provisions.

Section 23 is only one of a multitude of provisions contained in the act in regard to buildings and their construction in the city of Providence. The obvious purpose was to secure good, safe, and durable houses, as a measure of police, for the general security. We do not discover any indications of regard for particujar persons, or classes of persons, except the ambiguous indication which we have already considered. The act is local and therefore not to be extended by construction further than the well-established canons re. quire. Evidently the inspector of buildings was mainly relied on to carry it into effect. The remedy by penal prosecution and the remedy in equity are clearly his only weapons. Undoubtedly the remedy in equity is available in a proper case to individuals. It seems to us that further than this, to quote the language of Lord Cairns, "it was no part of the scheme of this act to create any duty which was to become the subject of an action at the suit of individuals," and

that therefore no remedy for individuals, beyond that which is expressly given, should be implied for any mere neglect of the duties imposed by the act. We do not consider that in so holding we are overruling the decision of this court in Aldrich v. Howard, 7 R. I. 199; for there no remedy whatever was given which was available for individuals, and moreover the action was not for any mere neglect of duty, but for a transgression which made the building complained of illegal, and so a standing nuisance from which the plaintiff was suffering a continuing injury. The court in its decision in Aldrich v. Howard, following Couch v Steel, laid down the law more broadly than was necessary for the decision, and more broadly too than would now be sustained by the English courts, unless the comments on Couch v. Steel, made by Lord Cairns aud Lord Cockburn in Atkinson v. Newcastle Waterworks Co., are very misleading. See also Addison on Torts, 67; Stevens v. Jeacocke, 11 Q. B. (N. S.) 731, 741; Flynn v. Canton Co. of Baltimorc, 40 Md. 312; Heeney r. Sprague, 11 R. I. 456.

Demurrer sustained.

UNITED STATES SUPREME COURT ABSTRACT.

JURISDICTION—AMOUNT IN DISPUTE.-The value of two sections of land which are in dispute is conceded to be more than $5,000. The complaint alleges a joint entry and ouster, and the answer does not set up separate claims to distinct parcels of the land by the sereral defendants. The judgment for the recovery of the possession is against all the defendants jointly. In this respect the case is entirely different from those of Tupper v. Wise and Lynch v. Bailey, 110 U. S. 398; 2 N.Y. Sup. Ct. Rep. 26, 27. We have jurisdiction therefore. Friend v. Wise. Opinion by Waite, C. J. [Decided May 5, 1884.]

TRUST-PROCEDURE-GENERAL GUARDIAN OR GUAR DIAN AD LITEM-STATE LAW--EXECUTOR AND TRUSTEE -WHEN ONE CAPACITY CEASES AND ANOTHER BEGINS.

-What was the proper method of proceeding against defendants, whether by general guardian or guardian ad litem, is a question local to the law of the jurisdiction, and in the proceeding under review, was passed on by the State court. It found in the decree that "the said minors were duly represented by their guardians," and that finding cannot be questioned collaterally, as it is not a question of jurisdiction. Coit v. Haven, 30 Conn. 190; Christmas v. Russell, 5 Wall. 290; Thompson v. Whitman, 18 id. 457. It seems to be in accordance with the general practice in Connecticut for a general guardian to be made a party and to defend for his ward, and that in such cases the appointment and appearance of a guardian ad litem are not necessary. Reeves Dom. Rel. 267; 1 Swift's System, 217; 1 Swift's Digest, 51; Wilford v. Grant, Kirby, 114. In the original bequest to the children of Christopher Colt in the will of annuities for education and support during minority, and 100 shares of stock, payable on arriving at age, there are no words creating a trust; and yet the executors in the meantime were bound to them, in respect to these benefits and interests, as executors, and yet in trust, quite as much as they were, in respect to the 500 shares, by the words of that bequest. As long as personal property is held by execu tors as part of the estate of the testator, for the payment of debts or legacies, or as a residuum to be distributed, they hold it by virtue of their office, and are accountable for it as executors; that liability only ceases when it has been taken out of the estate of the testator and and appropriated to and made the property of the cestui que trust. Bond v. Graham, 1 Hare,

482, 484; Arthur v. Hughes, 4 Beav. 506; Penny v. Watts. 2 Phil. Ch. Cas. 153; Hall v. Cushing, 9 Pick. 395; Dorr v. Wainwright, 13 id. 328; Towne v. Ammidown, 20 id. 540; Newcomb v. Williams, 9 Metc. 525; Conkey v. Dickinson, 15 id. 51; Prior v. Talbot, 10 Cush. 1; Miller v. Congdon, 14 Gray, 114; Adams on Equity, 251. "And it may be here observed," says Williams on Executors, 1796, pt. 4, bk. 2, ch. 2, § 2, "that when personal property is bequeathed to executors, as trustees, the circumstance of taking probate of the will is in itself an acceptance of the particular trusts. Therefore where the will contains express directions what the executors are to do, an executor who proves the will must do all which he is directed to do as executor, and he cannot say, that though executor, he is not clothed with any of those trusts." Lewin ou Trusts, 156. Decree affirmed. Colt v. Colt. Opinion by Matthews, J.

[Decided May 5, 1884.]

ESTOPPEL-CONVICTION BY MILITARY COMMISSIONSUIT TO RECOVER FINE-CANNOT ATTACK JURISDICTION.-One who has been convicted and fined by military commission for defrauding the government, and has conceded that his debt to the government exceeds the fine, and been given credit on the debt to this amount, cannot subsequently attack the jurisdiction of the court which convicted him in an effort to recover the fine from the government. The claim of appellant is entirely without merit. Under the findings of fact, which this court must accept as true, it is unnecessary to consider any question involving the authority and jurisdiction of the military commission before which the claimant was arraigned, and by means of which the government compelled him to pay into its treasury the sum of $90,000; for if it were conceded that Carver was not subject to be tried in that mode, and that the entire proceedings against him were illegal and void, it yet appears that after his release he voluntarily conceded that there was justly due from him to the government a larger sum than he had paid; and upon the basis of that concession he secured a credit upon his accounts for the amount he had so paid, receiving out

of the balance admitted to be due from and chargeable to him the sum of $1,414.45. We can imagine no reason why it was not competent for him, without reference to the legality of the proceedings before the military commission, to come to an understanding with the authorized officers of the government, substantially upon the basis suggested by him and acceded to by them. Even if the original payment to the government was under duress, he had the right subsequently to agree, as he did, that what the government coerced him to pay was in fact fairly due upon a proper settlement of his accounts. And when, by way of supplement to and in execution of that agreement, he accepted as compensation for his services, or as a gratuity, a portion of the balance justly due from him, he is estopped to raise any question as to the legality of the methods employed to collect from him what should have been paid without compelling the government to expend for its collection the large

sum that was allowed Moulton for his services. The

decision within the meaning of those terms as used in sectious 702 and 1911 of the Revised Statutes regulating writs of error and appeals to this court from the Supreme Court of the Territory. Section 702 provides for the review of final judgments and decrees by writ of error or appeal, and section 1911 regulates the mode and manner of taking the writ and procuring the allowance of the appeal. The use of the term "final decisions" in section 1911 does not enlarge the scope of the jurisdiction of this court. It is only a substitute for the words "final judgments and decrees" in section 702, and means the same thing. The dismissal of the writ was a refusal to hear and decide the cause. The remedy in such a case, if any, is by mandamus to compel the court to entertain the case and proceed to its determination, not by writ of error to review what has been done. Ex parte Bradstreet, 7 Pet. 647; Ex parte Newman, 14 Wall. 165. Dismissed. Crawford v. Haller. Opinion by Waite, C. J. [Decided May 5, 1884.]

UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.*

SHIP AND SHIPPING-LIEN FOR ADVANCES-NONE IN FAVOR OF CO-OWNER.-The plaintiffs, citizens of New York, bring this bill against certain citizens of States other than New York for an adjustment of accounts between the parties. as common owners of the schooner Jennie B. Gilkey. The plaintiffs allege that they made certain advances for the benefit of the defendants, to enable the vessel to perform her last voyage and earn her freight; and made certain other payments in defending and compromising an action brought against the owners in New York for the wages of the mate. They now move for a preliminary injunction to restrain the defendants from receiving from the registry of the District Court their several shares of the proceeds of the vessel, amounting, after payment of the privileged debts, to about $2,900. The plaintiffs admit that they have no privilege in admiralty, nor any right as creditors at large, having recovered no judgment, to intercept these proceedings; but they insist that in equity one part owner has a lien upon the ship her needs for a voyage, or for the benefit of his cofor advances which he may have made for supplying owners in any other respect. This brings up the question whether the decision of Lord Hardwicke in Dod

dington v. Hallett, 1 Ves. Sr. 497, is to be taken as law here. It was long since overruled in England. See Ex parte Young, 2 Ves. & B. 242, and 2 Rose, 78, note; Ex parte Harrison, id. 76; Ex parte Hill, 1 Madd. 61; Green v. Briggs, 7 Hare, 279, per Wigram, V. C.; Lindl. Partn. (4th Eng. ed.) 67. In this country it has been held in the courts of New York and Kentucky to announce a sound rule of equity, Mumford v. Nicoll, 20 Johns. 611; Hewitt v. Sturdevant, 4 B. Mon. 453; Pragoff v. Heslep, 1 Am. Law Reg. 747. In some other courts the later English rule has been thought the more sound. Merrill v. Bartlett, 6 Pick.46; Patton v. The Randolph, Gilp. 457; 3 Kent, 40; Story, Partn., §§ 442-444, and notes; Story Eq. Jur., § 1442, and note. In this Cir

judgment is affirmed. Carver v. United States. Opin-cuit two judges of the Supreme Court have said that a ion by Harlan, J.

[Decided May 5, 1884.]

JURISDICTION—“ FINAL JUDGMENT OR DECISION"— R. S., SECS. 702, 1911-MANDAMUS.-This motion is granted on the authority of Insurance Co. v. Comstock, 16 Wall. 258, and Railroad Co. v. Wiswall, 23 id. 507. An order of the Supreme Court of Washington Territory dismissing a writ of error to a District Court, because of the failure of the plaintiff in error to file the transcript and have the cause docketed within the time required by law, is not a final judgment or a final

part owner has no lien or right of priority in equity upon the ship itself for a balance of account which may be due him. Macy v. De Wolf, 3 W. & M. 193; The Larch, 2 Curt. C. C. 427, 434. Cir. Ct., Dist. Mass.

April 28, 1884. The Jennie B. Gilkey. Opinion by Lowell, J.

PATENT ISSUED HERE AND IN CANADA-VOID IN CANADA -EFFECT HERE - CONSTRUCTION FOREIGN STATUTE.-A statute of another country, when consid

*Appearing in 20 Federal Reporter.

ered by our courts, carries the construction given it by the courts of that country. In Elmendorf v. Taylor, 10 Wheat. 159, Chief Justice Marshall emphasized this doctrine by asserting broadly that "no court in the universe which professed to be governed by principle would undertake to say that the courts of Great Britain or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding." A patent issued successively by Canada and the United States, and afterward declared void ab initio by a Canadian court, does not by that fact expire in this country, but will be regarded as if it had never existed in Canada at all." Cir. Ct., Dist. N. J. March, 1884. Bate Ref. Co. v. Gillett. Opinion by Nixon, J.

SHIP AND SHIPPING TIME-USAGE-STIPULATION.-Where goods are taken on freight consigned to a consignee at a particular wharf, and there is either no bill of lading or the time for delivery is not specified, and there is no contract on the subject, held, that the obligation in respect to delivery is that each party shall use reasonable diligence in performing his part to effect the delivery; and that in the absence of any special usage of the port or of the trade neither will be liable to the other for any detention of the vessel arising from any cause over which he has no control, and for which he is not in fault. Howe v. Woodruff, 20 Fed. Rep. 136, 137; Aylward v. Smith, 2 Low. 192. Where the bill of lading is silent as respects the time in which the cargo is to be delivered, the only ground for holding the consignee liable is some fault on his part in the acceptance of the cargo. Rodgers v. Forresters, 2 Camp. 483; Burmester v. Hodgson, id. 488. If on the other hand the bill of lading limits the time within which the delivery is to be made, that limitation is construed in maritime law as a stipulation for the benefit of the ship, designed to cast upon the consignee all risk of detention beyond the stipulated period; and no custom of the port would be allowed to override such a stipulation. Randall v. Lynch, 2 Camp. 352; Philadelphia & R. R. Co. v. Northam, 2 Ben. 1; Gronstadt v. Witthoff, 15 Fed. Rep. 265, 271. It is in the power of the vessel always to provide against any loss on her part through detention from accidental causes at the place of discharge, if such be the intention of the parties, by inserting in the bill of lading the time within which the cargo must be received, or by other familiar provisions, such as that the vessel shall have "dispatch,' or" quick dispatch," either of which would cast the risk of delay upon the consignee. Smith v. Sixty Thousand Feet of Yellow Pine Lumber, 2 Fed. Rep. 396; 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. 185; Choate v. Meredith, 1 Holmes, 500; Bjorkquist v. Steel Rail, 3 Fed. Rep. 717. But if none of these precautions are taken by the carrier I see no ground upon which the carrier can charge the consignee with a breach of duty where the detention has arisen from causes of which neither has any control. In the case of Ford v. Cotesworth, L. R., 4 Q. B. 127, Blackburn, J., says (page 133): "Where the act to be done is one in which both parties to the contract are to concur, and both bind themselves to the performance of it, there is no principle on which, in the absence of a stipulation to that effect, either expressed by the parties or to be collected from what they have expressed, the damage arising from an unforeseen impediment is to be cast by law on the one party more than on the other; and consequently we think that what is implied by law in such a case is not that either party contracts that it shall be done within either a fixed or a reasonable time, but each contracts that he shall use

-DEMURRAGE REASONABLE

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reasonable diligence in performing his part. We think that the contract which the law implies is only that the merchant and ship-owner should each use reasonable dispatch in performing his part. The delay having happened without fault on either side, and neither having undertaken by contract, express or implied, that there should be no delay, the loss must remain where it falls." Clifford, J., in the case of Davis v. Wallace, supra, intimates the same opinion. "Delay beyond that," he says (i. e., the time necessary for unloading), "if occasioned by natural cause over which the defendant has no control, may perhaps be excused in a case where there is no express contract as to time." See Carsanego v. Wheeler, 16 Fed. Rep. 248; Cross v. Beard, 26 N. Y. 85. Dist. Ct., S. D. N. Y. April 16, 1884. Fish v. One Hundred and Fifty Tons of Brown Stone. Opinion by Brown, J.

SHIP AND SHIPPING-DAMAGES-RECOUPMENT-DIVISION OF COSTS.-Where a schooner was lost in a collision with a steamer, occasioned by the fault of both, and the damages were to be divided equally between the owners of the two, held, that from the damages otherwise due to the owners of the schooner, the owners of the steamer might recoup half of the damages recovered against the steamer by the owners of the cargo that was lost with the schooner, because each party is liable for that loss, according to the Atlas, 93 U. S. 302. A recoupment of this sort has been allowed in several cases. See The Eleonora, 17 Blatchf. 88; Leonard v. Whitwill, 10 Ben. 638; The C. H. Foster, 1 Fed. Rep. 733; In re Leonard, 14 id. 53; Atlantic Ins. Co. v. Alexandre, 16 id. 279; The Canima, 17 id. 271. That one vessel was wholly lost does not prevent a contribution in case of mutual fault. The North Star, 106 U. S. 17; 1 Sup. Ct. Rep. 41. (2) Decree that costs be equally divided, in a case where damages were equally divided, even though the libellant's vessel was wholly lost. The particular circumstance of each case must govern. I adhere to a remark that I made incidentally in The Mary Patten, 2 Low. 196, 199, that the general rule, so far as there can be one, should, in the absence of particular circumstances, give a libellant in a cause of collision his costs, though he recover but half his damages, where the loss is all on one side. Such has been the practice in the first and second Circuits of late years. The Austin, 3 Ben. 11; The Baltic, id. 195; The Paterson, id. 299; The City of Hartford, 7 id. 510; The William Cox, 3 Fed. Rep. 645; The Excelsior, 12 id. 195; The Eleonora, 17 Blatch f. 88. Cir. Ct., Dist. Mass. April 29, 1884. The Hercules. Opinion by Lowell, J.

RHODE

DAMAGES

ISLAND SUPREME COURT

ABSTRACT.*

SHERIFF -ESCAPE-JUDGMENT PRIMA

FACIE EVIDENCE.—In an action on the case against a sheriff for permitting the escape of a party arrested on original writ or mesne process, the measure of damages is the damages actually sustained, and the amount of the judgment recovered in the action in which the escape is permitted is only prima facie evidence, open to rebuttal by counter evidence adduced by the sheriff. Patterson v. Westervelt, 17 Wend. 543; Brooks v. Treasurer v. Weeks, 4 Vt. 215; Danforth v. Pratt, 9 Hoyt, 6 Pick. 468; Eaton v. Ogier, 2 Me. 46; State Cush. 318; Arden v. Goodacre, 11 C. B. 371; Shuler v. Garrison, 5 W. & Serg. 455; Smith v. Hart, 1 Brev. 146; Spafford v. Goodell, 3 McLean, 97; Blodgett v. Town of Brattleboro, 30 Vt. 579; Hootman v. Shriner, 15 Ohio St. 43. Sheldon v. Upham. Opinion by Dur fee, C. J.

[Decided April 5, 1884.]

*To appear in 14 Rhode Island Reports.

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