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doctrine. Vice-Chancellor Hall, in the case of Re | The Louisiana judges are still indulging in glowClarke's Trusts, 1 Ch. Div. 497, adopted a narrowering rhetoric. In Armstrong v. Jackson, 37 La. Ann. view, and refused to apply the cy près doctrine to a 219, an action of assault and battery, provoked by fund which had been given to a friendly society an alleged libel, Fenner, J., said: “The irate Jackwhich had been dissolved. The conflict of opinion son, meeting Armstrong on Canal street, determined betwen the two judges is raised in an unusually dis to empty on his unfortunate head all the vials of tinct manner. Vice-Chancellor Hall says: "Pov his wrath.” (So he assailed him violently). “Jackerty of the member at the time of his sickness or son was a vigorous and burly man. Armstrong was lameness, or in his old age, was not required to en- a physical wreck, afflicted with that terrible distitle him to an allowance. It appears to me that the lease, the name of which, owing to its octosyllabic society was not a charitable institution.' Vice- / length, is not grappled with by the writer of the Chancellor Bacon's words are explicit the other transcript, but which, from its description, we infer way: The object of charity is to relieve distress. to be known as Locomotorataxia." The jury gave Poverty is not a necessary element to entitle a per- $2,000 damages, and Fenner, J., said: “Let the son to receive a charitable donation.' It would ap- tree lie as it has fallen." Manning, J., thought the pear, but not with absolute clearness, that the late damages excessive, observing: “Writers such as he Master of the Rolls, in the unreported case of Spil have no sympathy for (sic) the powerlessness of those ler v. Maul, referred to in Pease v.' Pattinson, was in- whom they assail, and their shafts inflict wounds clined to take the narrower construction, although compared to which the physical hurts of daggers as that learned judge directed that the society with and pistol-balls are but a trifle." which Spiller v. Maud was concerned was a charity, it is not safe to press his words as if he had decided that it was not a charity. It seems absurd to lay
In these times of bribery it is well enough for down the rule that where you help people in aid of
lawyers to know just how far they can safely go in their own efforts there is no charity, whereas when
social attentions to the judges. When Edward I they do not help themselves at all it is charity.
returned to England in August, 1289, his first care The old definition that charity is a general public
was to reform the abuses that had crept into the use' suggests the sounder principle of division -
administration of the law during his absence. All that the fund or benefaction must be either for the judges were examined before the new parliawhole communities or ascertainable classes of peo
ment and on proof of extortion were fined ; only two ple, as distinguished from private persons or par
judges out of the whole bench were found not ticular families. Vice-Chancellor Hall's view would |
guilty. From this time the judges were obliged to exclude all the great educational endowments of swear upon their induction into office that they the country, as well as the objects enumerated in
would take no money or presents of any kind except the statute of Elizabeth, such as the repair of
a breakfast from such persons as had suits dependbridges, forts, churches, highways, the marriages ing before them. We may thereupon conclude that of poor maids, and the supportation and help of to treat a judge to a breakfast is not bribery at young tradesmen.'” In another recent case, Ilar
common law. Drinks are not mentioned. Probably ris v. Brisco, chronicled by the Law Journal, the from their effects they would not come within the point decided was that charity is a good defense to
same category. Arm chairs were ruled out in Judge an action of maintenance. The court had to go back
Barnard's case. to the Year Books, and the Journal says the argument was “a severe strain on the Norman-French,
NOTES OF CASES. both of bench and bar.” “Charity, according to the Court of Appeal, is used by the law in its popu | N Sexton v. IIawkeye Ins. Co., Supreme Court of lar sense, and they could not be more emphatic than 1 Iowa, June 14, 1886, 28 N. W. Rep. 462, the the apostle in laying down that it may 'cover the action was on a policy of insurance to recover for multitude of sins' in the action maintained. Noth- the loss of the building insured, by "a high wind, ing was said by the Court of Appeal of the decision cyclone or tornado.” The policy contains the folof the lord chief justice in Bradlaugh v. Neudegate, | lowing condition: “ This company shall not be lia52 L. J. Rep., Q. B., 454, except that it was an au- | ble for any loss or damage while the above-menthority for the existence of the action of mainte- tioned premises shall be vacant or unoccupied, or nance, but it can hardly stand when compared with resulting from neglect by the assured to use all this decision. If charity is a good defense to an possible effort to keep the property safely protected action for maintaining a civil proceeding, the inter-against fires that may originate on the prairies, or est which every one has in the observance of the law to save the property when on fire, or exposed must, à fortiori, be a good defense to an action for thereto, or after the fire, or by theft at or after the maintaining a penal proceeding to enforce the ol)- fire.” The evidence showed that the building inservance of a public law. The Court of Appeal say, sured was a dwelling-house, occupied at the time in giving judgment, that “if we were now making a the policy was issued by a tenant, who moved out new law it would be well worthy of consideration of it about three months before the loss. The whether such a limitation of the doctrine as Mr. | plaintiff testifies that the tenant left in the Justice Wills adopted would not be good.'” | house “two or three jars, and two large four or five gallon jars, and a molasses keg, and a table,” which that the wind was blowing from the north or northappear to have been in the house when destroyed. west. If the fact was that there was no evidence of The plaintiff also testified that he had in the house wind around Schocker's stables and straw-stacks, at that time a wrench, hatchet, three empty cans, & 120 rods north of the plaintiff's, such fact, we think, rolling cutter, a plow file and a ladder.” The would have tended, at least, in a slight degree, to house, after the tenant removed, was not used as a show that at the plaintiff's the wind did not dwelling. The court said: “The court, in our amount to a tornado, and that the destruction of opinion, rightly directed a verdict for defendant; | his stable was due either to its own frailty, or the for the reason that the condition of the policy action of the water. We think that the question against the vacancy, or its being permitted to re- should have been allowed. One McHenry was main unoccupied, was established without any con- | called by the defendant as a witness, who testified flict of evidence. The condition cannot be disre- | to seeing a grove near plaintiff's house after the algarded when the contract is attempted to be en- | leged tornado. He was asked a question in these forced. The parties contracted that the building words: “Did you notice any trees having been should not be permitted to be vacant or unoccu- blown down?' This question, upon objection by pied. We cannot vary or depart from their con- the plaintiff, was excluded. We think it should tract. It may be, but the point we do not deter- have been allowed. Where a wind has not left bemine, that if the condition required the perform- | hind it the ordinary indications of a tornado, there ance of acts which in no way affected the hazard, is some ground for supposing that it did not or the non-performance of which could work de- amount to a tornado. It is true that the path of a fendant no prejudice, the courts would not re- tornado is sometimes very narrow and sharply degard it. But it cannot justly be claimed that the fined. The fact, then, that trees in a grove near hazard of 'high winds, cyclones or tornadoes' was the plaintiff's stable were not blown down would not increased by the vacancy of the building. The not have shown necessarily that there was not a occupants of a dwelling, for their own safety, and tornado at the plaintiff's stable; but we think that the protection of the property they may have in it, it was a fact which the defendant was entitled to will exercise care for the preservation of a building show as having, at least, some slight bearing in the by keeping closed and secured the windows and case." doors of the house during high winds, which would, to some extent, secure to it increased stability and I In Wakeman v. Chambers, Supreme Court of Iowa. capacity of resistance to storms. The tools and / June 17, 1886, 28 N. W. Rep. 496, it was held that other articles of the plaintiff, and other articles the statute against selling intoxicating liquors does owned by the tenant in the house at the time of the
not make the buyer an abettor or particeps criminis. loss, did not constitute occupancy, as contemplated
The court said: “The object of the statute is twoby the policy. The building was described in the
fold: the protection of the people of the State, and policy as a dwelling-house,' and was insured un that class of persons likely to become purchasers as der the policy as such. The contract contemplates | a protection against themselves. Hence it is prothat it shall be occupied as a dwelling. Its occu
vided that a person found in a state of intoxication pancy, for the purpose of storing tools, jars, etc.,
shall be deemed guilty of a misdemeanor, and be did not comply with the condition against the va
punished as prescribed in the statute. But the percancy of the building."
son so found intoxicated is invited to give information, under oath, when, where, and of whom he
purchased or received the liquor, and thereupon the In Poggensee v. Mutual Fire, Lightning and Tor- | magistrate is authorized to remit the penalty prenado Ins. Co., Supreme Court of Iowa, June 17, scribed for being found in a state of intoxication. 1886, 28 N. W Rep. 485, an action to recover un- | It cannot be supposed that the Legislature, in thus der an insurance policy against loss by tornadoes, it | inviting the intoxicated person to inform on the was claimed in defense that the storm causing the seller, contemplated that he thereby criminated loss was not a tornado, such as was insured against, himself in the crime of aiding and abetting in the and that the damage arose mainly from the natural sale, and was liable to be punished as a principal. frailty of the buildings, or from water. Hell, that The sale of intoxicating liquor is lawful at common testimony as to the damage done in the neighbor- | law, and it becomes unlawful simply because the hood was admissible as tending to prove the nature statute so provides. Under the statute the sale, or of the storm. The court said: “The defendant keeping with intent to sell, is a public offense, becalled as a witness one Schocker. He testified that cause the statute so declares. The statutory crime he lived 120 rods north of the plaintiff's, and that is bounded by the statute creating it, and the stathe had stables and straw-stacks where he lived. He / ute operates on, and has force and effect against the was then asked by defendant a question in these persons therein named, and no others. As the prowords: What, if any, damage was done, or evi-hibitory statute does not provide that the purchaser dence of wind was there around the stables and is guilty of any crime, it scems to us this fact pracstraw-stacks?' The question was objected to as tically ends the inquiry. If such had been the inimmaterial and incompetent, and the court sus tent it would certainly have been so provided in extained the objection. It had already been proven press terms. So far from this being so, the impli
cation is clearly the other way. The prohibitory answer and a petition for limited liability; and where it statute does not regard the purchaser as an aider
further appeared that the owner received certain moneys
for insurance of the ship against loss by fire, it was held, and abettor in any criminal act, and it has been so
(1) that the owner was entitled to a limitation of liability held under similar statutes in State v. Rand, 51 N.
to the value of its interest in ship and freight, under H. 361, and Commonwealth v. Willard, 22 Pick. 476. the act of 1851. (2) That the point of time at which the It is said however that the decision in this last case
amount or value of the owner's interest in ship and
freight is to be taken for fxing its liability is the terwould have been the other way if the crime had
mination of the voyage on which the loss or damage ocbeen of greater magnitude. We do not think this
curs. (3) 'That if the ship is lost at sea, or the voyage be is so, and this clearly appears from the subsequent otherwise broken up before arriving at her port of desticases of Commonwealth v. Doroning, 4 Gray, 29; nation, the voyage is then terminated for the purpose of Cobb v. Farr, 16 id. 597; Walan v. Karby, 99 Mass. fixing the owner's liability. (4) That in the present case l; Adams v. Goodnow, 101 Mass. 81. In Doran's
the voyage was terminated when the ship had sunk, and
that her value at that time was the limit of the owner's case, 2 Pars. Eq. Cas. (Penn.) 467, the statute made
liability, and that the subsequent raising of the wreck it a crime for any person 'to buy, use, or expose to
and repair of the ship, giving her an increased value, bad sale' tickets in lotteries, and therefore it was held nothing to do with the liability of the owner. (5) That the purchaser could not be compelled to testify, for no freight except what is earned is to be estimated in the reason that he himself was guilty of a crime.
fixing the amount of the owner's liability. (6) That
insurance is no part of the owner's interest in the ship or The only case to which we have been referred
freight, within the meaning of the law, and does not enter which seems to sustain the ruling of the District
into the amount for which the owner is held liable. (7) Court is State v. Bonner, 2 Head, 135. A statute That the limita:ion of liability is applicable to proceedings 'in Tennessee prohibited the sale of liquor by slaves,
in rem against the ship, as well as to proceeedings in perand it was held in the cited case that a white man
sonam against the owner; the limitation extends to the who purchased from a slave committed a criminal
owner' property as well as to his person. (8) That the
right to proceed for a limitation of liability is not lost or offense. We think that, both on principle and the
waived by a surrender of the ship to underwriters. authority of adjudged cases under statutes similar
APPEAL from the Circuit Court of the United to ours, that the better rule is otherwise. It should
A States for the Eastern Distriot of New York. be remembered that the prohibitory statute has The opinion states the case. been in force in this State for many years, and it is
J. Langdon Ward, R. H. Huntley, C. R. Ingersoll and undoubtedly true that there have been many con
Samuel W. Bower, for appellants. victions thereunder on the evidence of the purchaser alone, for ordinarily no other evidence can
J. W. C. Leveridge and Jeremiah Halsey, for appel
lee. be procured; and this is the first instance, to our knowledge, where the right of the State to such
BRADLEY, J. This case arose out of a collision
which occurred on Long Island Sound, opposite Huutevidence has been questioned. Nor are we advised
ington, on the 18th of April, 1866, between the steamthat a single prosecution against the purchaser for boat City of Norwich, belonging to the Norwich & aiding in the commission of a crime was ever com New York Transportation Company, the appellees, menced, and this has a strong tendency to show | and the schooner General S. Van Vliet, belonging to what has been generally regarded as the proper
William A. Wright and others, appellants, by which
the scbooner and her cargo were suuk and lost, and construction of the statute."
the steamboat was set on fire and sunk, and her cargo
sonam in the District Court of the Uuited States for SHIP AND SHIPPING - COLLISION - LIMITED the District of Connecticut against the owners of the LIABILITY OF SHIP-OWNERS — DAM
steamboat, and obtained a decree for about $20,000 for
the schooner and about $2,000 for her cargo, with in-
filed a petition, stating that proceedings in rem had SUPREME COURT OF THE UNITED STATES,
been commenced against the steamboat in the DisMAY 10, 1886,
trict Court of the United States for the Eastern Dis
trict of New York, for the recovery of damages for PLACE V. Norwich & NEW YORK Traxsp. Co.*
the loss of the cargo on board said steamboat; and In a case of a collision occasioned by the negligence of the they prayed leave to show the whole amount of dam
officers or hands of one of the vessels, without any neg ages sustained by all parties, and the ralue of the lect, privity or knowledge of her owner; and where said
steamer and her freight then pending; and that the vessel took fire and sank, with loss of cargo, and never libellants might have a decree for only such proportion completed her voyage, nor earned any freight, but was
of damages sustained by them as the value of afterward raised and repaired, and was then libelled and
steamer and freight bore to the whole amount of damseized on behalf of the owners of her carge, and claimed
ages sustained by all parties by the collision; this and bonded at her then value by her owner, who filed an claim being made under the limited liability act of *S. C., 6 Sup. Ct. Rep. 1150. In Thommessen v. Whit 1851. will, the decision in this case, in relation to the time The District Court denied the prayer of this peti. when the value of the owner's interest in the ship is tion, holding that it had no jurisdiction to give relief. to be taken for fixing the amount of his liability, was applied On appeal to the Circuit Court the decree was to a case where the offending ship did not sink in conse affirmed, and the petition for limitation of liability quence of the collision, but was afterward sunk and was denied on the ground that cases of collision were wrecked in the same voyage by the negligent navigation not within the act. The case then came to this court, of those in charge of her; this sinking being held to be the and we held: First, that the act of 1851 adopted the termination of the voyage.
general maritime law in reference to limited liability,
coutradistinguished from the English law measuring parties and the court; secondly, that the appraisethe liability by the value of the ship and freight after ment should have been for the value of the steamer instead of before the collision; secondly, that the act immediately before the collision; thirdly, that it embraced cases of damage received by collision as well should have been for the value immediately after the as cases of injury to the cargo of the oftending ship; collision, before the occurrence of damage by the fire; thirdly, that the District Courts of the United States, fourthly, that there should have been no deduction as courts of admiralty, have jurisdiction to administer for the expenses of raising the steamer; fifthly, that the law; fourthly, that the proper court to hear and the sum of $600 should have been added for the pond. determine the question is the court which has posses iug freight; sixthly, that the money received for insion of the fund--that is, the ship and freight, or the surance on the vessel should have been added, proceeds and value thereof. And in view of the want amounting to $49,283.07. of rules of procedure, and of any uniform prac | The exceptions were overruled, and a decree was tice on the subject, we directed that proceedings Dade authorizing the petitioners to pay into court the should be suspended in the District Court of Connec sum of $2,500, the value of the steamer, and directing ticut, in order to give the respondeuts an opportunity a monition to issue, citing all parties interested to apof making the proper application to the District Court pear and prove their claims, restraining the further of the Eastern District of New York, which had pos prosecution of all suits, and appointing a commissession of the steamer, or a stipulation for her value sioner to take proof of claims. On the subsequent reiu lieu of the steamer itself. We also adopted some port of the commissioner a final decree was made in general rules of praotice for the aid and guidance of January, 1879, distributing the fund in court, and disthe District Court in such cases 13 Wall. 104.
charging the petitioners from further demands. The The libel in rem, filed in the District Court for the case was appealed to the Circuit Court, and argued Eastern District of New York was filed by George before Mr. Justice Strong, who in October, 1879, afPlace and Charles Place (now appellants here), in Au- |firmed the decree of the Distriot Court, but the decree gust, 1866, after the steamboat had been raised and of affirmance was not entered until July 3, 1882. That carried to the shore of Long Island and repaired. The decree is now before us for review. Norwich & New York Transportation Company ap. The finding of facts by the Circuit Court is substanpeared as claimants, and filed an answer and a peti tially as follows: (1) It states the fact of the collision, tion to have the benefit of the act of 1851 for a limita- and that “it was caused by the negligence of the tion of their liability to the value of the steamboat steamboat's officers or hauds, without any design, negand freight pending at the time of the collision and lect, privity or knowledge of her owners. Very soon, fire. Other libels were also filed by other owners of | within half an hour after the collision, the boat took cargo. The steamer as repaired was appraised at $70,- fire, her deck and upper works were burned off, and 000.
she sunk in about twenty fathoms of water. The fire On the 13th day of June, 1872, after the decision of was the direct consequence of the oollision, and insepthis court was rendered in the case of Norwich & New | arable from it. It was caused by the rusbing of the York Transp. Co. v. Wright, 13 Wall. 126, the com waters through the broken hull of the boat, whereby pang, by leave of the court, filed a new petition in the the fire was driven out of the furnaces upon the wood. District Court for the Eastern District of New York | work, and the boat sauk by reason of her filling with for the benefit of limited liability under the act of water. (2) At the time of the disaster the boat had a 1851, conformable to the rules adopted by this court. cargo of merchandise on board belonging to different The petition stated the various claims against the ves. freighters, all of which was totally lost. The freight sel arising out of the collision (amounting to nearly then pending amounted to $600, but none of it was $150,000), the previous proceedings that had been taken, earued or received by the ship-owners. (3) Some time the libels that had been filed, the circumstances of the after the steamboat was sunk,and her cargo destroyed, loss, the raising and repair of the vessel, etc., and she was raised by salvors and taken to the Long Island prayed for a new appraisement in accordance with the shore, within the port of New York, where she was decision of this court, a monition to claimants, etc., as repaired." (4) It states the suit of Wright & Co. in the will more fully appear in the finding of facts made by District Court of the United States for the District of the Circuit Court, hereinafter stated.
Connecticut, and the decision of the Supreme Court Orders for publication and appraisement were made in that case. (5) It states the proceedings upon libel pursuant to the prayer of the petition, and the com- | filed by George and Charles Place in the District missioner appointed to make the appraisement re- | Court for the Eastern district of New York, the apported as follows, to-wit: “ In ascertaining the value praisement at $70,000, and the release of the vessel to of the steamboat City of Norwich, as directed by the the complainants (the Norwich & New York Transorder of reference herein, I have followed what portation Company), upon their giving stipulation I understood to have been the decision of the therefor, adding: “The stipulation purported to be Supreme Court of the United States in the for the seourity, not only of the Messrs. Place, but case of Wright against the owners of this also for the benefit of all persons who might, by due boat (13 Wall. 104), and have ascertained her proceedings in said court, show themselves entitled value in the situation and condition she was in after to liens upon the vessel by reason of said collision. the collision, and before she was raised; and I find The appraisement was of the value of the vessel as it from the testimony takey before me that she was at was after she had been raised and repaired. It was re. that time of the value of $2,500. I have arrived at turned into the court on the 11th of March, 1807, and such value by taking the testimony as to her value in the stipulation in the amount of the appraisement was New York after she was raised by her owuers and filed on the 29th day of the same mouth. On the 20th brought there, which shows that she was then and day of December, 1869, the District Court ordered dethere worth tbe sum of $25,000, and I have deducted crees to be entered in favor of the libellauts in all the from that amount the sum of $22,500, being the sum suits commenced against the steamer as aforesaid. (6) which, according to the testimony, it had actually cost Such was the condition of the litigation when the presto raise ber and bring her to New York, which leaves ent petition was filed in July, 1872, after the rendition $2,500 to be her value, as I have above stated."
of the judgment by the Supreme Court in the case of Exceptions were taken to the report--First, that the | the libel of William A. Wright et al. in the District former appraisement of $70,000 was binding on the Court of Connecticut. The petition prayed that in
conformity with the act of Congress, the decision of in fixing the amount of her owners' liability? Ought
4284, which is: “Whenever any such embezzlement, The conclusions at which Justice Strong arrived loss or destruction is suffered by several freighters or upon these facts were (1) that the value of the steam owners of goods, wares, merchandise or any property boat immediately after her collision and fire, as she whatever, on the same voyage, and the whole value of lay at the bottom of the Sound, with her pending the ressel and her freight for the voyage, is not sufficient freight, was the measure of the owners' liability, and to make compensation to each of them,they shall receive the amount to be apportioned; (2) that insurance is compensation from the owner of the vessel in propornot an interest in the vessel within the meaning of the tion to their respective losses.” There may be more third section of the act of 1851, or section 4283 of the than one case of embezzlement during the voyage, and Revised Statutes; (4) that the limitation of the own. more than one case of loss and destruction, and they ers' liability under the act is as applicable when the may happen at different and successive times, yet proceeding is in rem as when it is in personam, so that they are to be compensated pro rata. This shows conif the owners' liability is only the amount of the ves-clusively tbat it must be at the termination of the sel'e value when at the bottom of the Sound, the veg. "vovago” that the vessel is to be appraised, and the sel's liability, after being raised and repaired, is no | freight (if any be earned) is to be added to the account greater.
for the purpose of showing the amount of the owner's [Omitting a minor question.)
liability. The next question to be considered is, at what time This conclusion is corroborated by section 4285, ougbt tbe value and her pending freight to be taken, which declares that it shall be a sufficient compliance