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F. R. Sherman, for libellants.
BLATCHFORD, J.-The libellants, owners of the brig Isola, file the libel against the respondents, owners of the schooner Anne E. Glover, to recover for the damages sustained by the libellants through a collision which took place between the brig and the schooner, in the harbor of Galveston, Texas, on the 3d of October, 1867. On the morning of that day the brig and the schooner were both of them lying, heading to the westward, with their port sides against the outer end of a wharf which was in the shape of the capital letter T. The brig lay farther to the westward than the schooner did, and was in ballast, ready for sea. The schooner lay with her bow toward and near to the stern of the brig, and was loaded with cargo, having just arrived from sea and not yet discharged. Astern of the schooner lay a bark with her starboard side to the wharf and her stern to the stern of the schooner. These three vessels were all of them made fast by lines to spiles on the wharf. A violent wind arose, blowing quartering on the wharf, from abaft the beam on the starboard sides of the brig and the schooner. As the wind increased, the brig broke loose from her moorings, tearing out the spiles to which she was fastened, and was driven along the face of the wharf, until she cleared the end of it, when an anchor from her bow caused her stern to swing around by the west, until she was brought by the anchor head to the wind, when a second anchor was put out which brought her up, so that she rode safely at anchor, at a distance of from 75 to 100 yards from the schooner. Not long afterward, the stern of the bark was driven by the wind against the stern of the schooner, and broke in the stern of the schooner, so that the sea en. tered, and there was danger that the schooner would sink, with her cargo, at the wharf. In this emergency, as stated in the answer, the master of the schooner, "acting for the benefit of all concerned, for the purpose and with the motive and intention of saving her and her cargo from total loss, cut her loose from her moorings, but, before her anchors could be let
go, and she could be thereby brought up, she was, notwithstanding every effort which it was possible to make to the contrary, driven upon the brig." The answer sets up that it was impossible, under the circumstances, to prevent the col. lision; that such collision, so far as respected the schooner, arose from an inevitable accident, by reason whereof each vessel should sustain her own loss; and that there was no fault on the part of the schooner. The brig was greatly damaged by the collision, and the schooner, after remaining for some time in contact with and entangled with the brig, was cleared, and then drifted still farther, until she grounded in shoal water.
The contention on the part of the respondents is, that, in. asmuch as the schooner was in a proper place when she was cut loose, and was sufficiently secured to the wharf, and it was proper for her safety and that of her cargo to cut her loose, after she had been injured by the bark, so that she might be driven by the wind and drift ashore in shoaler water, the case is one of inevitable accident, or vis major, unless there was some fault or negligence on the part of those in charge of her, in managing her after she was cut loose, whereby she collided with the brig. I cannot assent to this view of the law as to inevitable accident. The act of the schooner, in being adrift, was, on the pleadings and proofs, a voluntary act on her part. It was willful and deliberate. It was done to save herself from a greater peril by endeavoring to incur a less one.
It is es tablished, by the proofs, that, if she had not cast herself loose, she would have remained where she was, only perhaps, sink. ing, and would not have collided with the brig. A collision would have been impossible if she had not cut herself loose, as a matter of voluntary choice. How, then, can it be properly said that the collision was an accident which could not have been avoided, when it clearly appears that it would have been avoided, if the schooner had not thus voluntarily chosen to cut herself loose? It may be that, after she was cut loose, all proper skill and caution on her part were observed. But that is not the proper test.
In cutting herself loose she took the risk of hitting the brig, and must bear the consequences of having hit her. The brig ought not to be held liable to bear the risk of the voluntary act of the schooner, adopted for the benefit of the schooner, and having no connection with the question of any benefit to the brig.
There must be a decree for the libellants with costs, and a reference to a commissioner to ascertain the damages sustained by them by means of the collision in question.
ABSTRACTS OF RECENT AMERICAN DECISIONS.
SUPREME COURT OF NEW HAMPSHIRE.1
SUPREME COURT OF NEW YORK.?
AGENT. Proof of Agent's Authority.--Where a special agent is employed to accomplish a particular purpose, a party seeking to make the principal liable for the acts of the agent, must prove what the authority of the agent was; and the principal may disprove it: Fish et al. v. Davis, 62 Barb.
Declarations of Agent.—A principal is not estopped by the declarations of his agent as to his authority : Id.
Ratification by Principal.- Where it is sought to bind the principal by reason of his having ratified the acts of the agent, it is essential to give effect to the ratification, that it should have been done with full knowledge of all the facts: Id.
ATTORNEY. Authority of.–When a suit is brought by an attorney of this court in regular standing his authority will be presumed until the contrary is shown. Town of Lisbon v. Holton, 50 or 51 N. H.
When a committee assuming to act under a vote of the town directed a suit to be brought, and it was brought, and service made on January 27, 1871, and the town at its annual meeting in March following, with a knowledge of what had been done, appointed an agent to carry on the lawsuit with G., "and all other lawsuits now pending with said town,” and with a knowledge that the action was to be entered on the third Tuesday of the same March, there was no dissent by the town or the selectmen to the suit, it was held that was evidence of a ratification of the authority of the attorneys: Id.
1 Fiom the Judges; to appear in 50 and 51 N. H. Reports. I From Ilon. 0. L. Barbour; to appear in Vol. 62 of his reports.
Authority of Cashier._Ordinarily the cashier of a bank has no authority to discharge its debtors without payment; or to bind the bank by an agreement that a surety should not be called upon to pay a note he had signed; or that he would have no further trouble from it. Cochico National Bank v. Hasbik, 50 or 31 N. H.
If upon inquiry by the surety the cashier of a bank informs him that the note is paid, intending that be sbould rely upon bis statement, and the surety does so, and in consequence changes his po sition by giving up securities, or endorsing other notes for the same principal, or the like, the bank will be estopped to deny that such note is paid : Id.
BANKRUPTCY. Discharge cannot be invalidated in State Court.-A discharge under the U. S. Bankruptcy Act cannot be invalidated in a State Court, on the ground that the bankrupt fraudulently concealed assets. The remedy provided for such a case by Sec. 34 of the U. 8. Bankrupt Act is exclusive.-Parker v. Atwood, 50 or 51 N. H.
COMMON CARRIERS. Liability as a Carrier of Freight; Default of Connecting Lines.Where a railroad company in Georgia, whose road terminated at Atlanta, where it connected with the Western and Atlantic railroad, received at one of its stations, fifty-eight bales of cotton consigned to parties in New York, and gave the consignors a receipt specifying that the cotton was “to be transported in turn to Ř. & C., New York.” It was held, this was a special contract on the part of the company to carry the property to New York; and made it liatle, not only for its own default, but for that of the other carriers on the line, and accountable for the value of a portion of the cotton destroyed by fire while in the possession of the Western and Atlantic Railroad Company, to whom it had been delivered for transportation : King et al. v. Macon and Western Railroad Co., 62 Barb.
Taking of Private Property—Damages from Overflow of Water in Consequence of the Taking. A corporation was author. ized by the legislature to construct a railroad upon paying to each land-owner the damages occasioned to him by the construction of the railroad over his land. Damages for the construction of the railroad over the land of the plaintiff, Eaton, were duly as sessed and paid. Northerly of Eaton's land, there was a ridge completely protecting his meadow from the effect of floods and freshets in an adjacent river. The corporation in constructing their road made a deep cut through the ridge, through which cut the waters of the river in floods and freshets sometimes Huwed,
carrying sand, gravel and stones through the cut and depositing them upon Eaton's meadow. No part of the ridge was upon Eaton's land. Held, that Eaton had received no compensation for damages occasioned to his land by the construction of the road over the land of another; that the flowage in the manner described has a “taking” of Eaton's land within the meaning of the Constitution; that, if the legislature intended to authorize such taking, the act was pro tanto unconstitutional, containing no provision for compensation; and that the corporation were liable for the damages thus occasioned, although they may have con. structed their road at said cut with due care and prudence: Eaton v. Boston, Concord & Montreal Railroad, 50 or 51 N. H.
Illegal Business.—The defendants kept a billiard saloon, and a bar for the sale of liquor. The liquor traffic was illegal. The plaintiff was employed by the defendants to work generally in and about the saloon; there was no special agreement that he should or should not sell liquor, or as to what particular duty he should do; but he was accustomed to work generally in and about the saloon, taking care of the room, building the fires, taking care of the billiard tables, tending at the bar, and waiting upon customers; in the absence of the defendants he had the whole charge of the business. The plaintiff, at the time he entered into the service of the defendants, knew what business was carried on there.
In assumpsit upon a quantum meruit; it was held, that the plaintiff could not recover compensation for any portion of his services: Bixley v. Moor, 50 or 51 N. H.
Trespass.—Where the complainant entered peaceably on the land of the respondent, and is discovered there not committing any violence, a request to depart, and a refusal to do so, is necessary before the defendant can justify a resort to force to expel him: State v. Woodward, 50 or 51 N. H.
Purchase of Liquor.–The purchaser of liquor, sold in violation of the statute, is not guilty of a criminal offense, and cannot be excused from testifying as to the purchase: State v. Rand, 50 or 51 N. H.
Sale of Liquor-Evidence.-An indictment for being common sellers of "spirituous liquors," does not charge the respondents with being common sellers of ale, porter and cider ; and evidence of sales of ale, porter and cider is not admissible under such an indictment: State v. Adams, 50 or 51 N. H.
DEBTOR AND CREDITOR,
One claiming property of a deceased person, under a transfer invalid as against creditors, is not affected by a decree of the Pro