case of The St. Lawrence when again before the court, 9 Cranch, 121; he says that it is not the intention of the court to express any opinion as to the right of an American citizen, on the breaking out of hostilities, to withdraw his property, purchased before the war, from an enemy's country. Admitting such a right to exist, it should be exercised with due diligence and within a reasonable time after the knowledge of hostilities. Thus it will be seen that this question never has been decided in the supreme court of the United States. And from the guarded and cautious manner in which that court has reserved itself upon this particular question, there is reason to conclude that when it is distinctly presented it will be considered as not coming within the policy of the rule that renders all trading or intercourse with the enemy illegal.

In Hallet v. Jenks, 3 Cranch, 219, the question before the court involved the inquiry as to what circumstances might excuse a trading, without incurring the penalties of the non-intercourse act of 1798. C. J. Marshall, in delivering the opinion of the court, observes that even if an actual and general war had existed between this country and France, and the plaintiff had been driven into a French port, a part of his cargo seized, and he had been permitted to sell the residue and purchase a new cargo, it would not have been deemed such a traffic with the enemy as would vitiate the policy upon such new cargo. According to this opinion, an actual trading with the enemy may, under suoh circumstances, be deemed lawful. Independent, however, of this general question, the withdrawing of the goods in question may very fairly be considered as falling within the principle settled by the supreme court of the United States, in the case of The Thomas Gibbons, 8 Cranch, 421. It was there held that a shipment made even after a knowledge of the war may well be deemed to have been made in consequence of the repeal of the orders in council, if made within so early a period as would leave a reasonable presumption that the knowledge of that repeal would induce a suspension of hostilities on the part of the United States; and that congress had acted upon that principle by the act of the second of January, 1813, ch. 149, and fixed the time, fifteenth September, 1812, before which shipments might be reasonably made, upon the faith of that presumption. The same doctrine is again recognized and more liberally applied in the case of The Mary, 9 Cranch, 147. The shipment in the case now before the court was on the twenty-first of July, and before the declaration of

AM. DEC. VOL. VIII-14

war was known in England. From this view of the case, and the law applicable to it, we are satisfied that withdrawing the goods, under such circumstances, could not be considered an illegal act.

The next inquiry is, whether anything afterward occurred to exonerate the defendant from responsibility upon the bill of lading; and we cannot perceive that there has. There can be no doubt that the admiralty proceedings against the property at New Providence after the first release, were by the procurement of the agents of the defendant. The case states that the process was procured by Peter McGregor, who sailed on board the vessel from Liverpool, who was the nephew of the defendant, and represented himself as his agent, on the suggestion in his petition, that if the goods were brought into the United States, they would be seized as imported contrary to law, and would be lost to the owners and underwriters, who were, as he alleged, British subjects. But upon claim and answer put in by the master, the petition was dismissed and the vessel and cargo again liberated; and the ship being about to sail, she was again stopped by a British armed vessel, by the solicitation and procurement of the same Peter McGregor, and one William Stewart, who was on board the ship, and proceeded to New Orleans with her, as the agent and consignee of the defendant, they giving the captain of the British ship an indemnity for such seizure. The ship and cargo were then libeled, and claims interposed by different persons for different parts of the cargo, and the goods in question were claimed as the property of Maitland & Co. The claimants all alleged that if the goods were transported to New Orleans, they would be seized and forfeited as imported contrary to law; and in support of such allegation, produced Mr. Gallatin's letter of the twenty-sixth of August, 1812, giving instructions to the collectors on that subject. A decree was then pronounced, ordering the goods to be given up to the claimants, and they were sold, and the proceeds disposed of as has been stated. There is no pretense that the persons who represented themselves to be the agents of the defendant, and who acted as such, were not so in fact; and if so, he must be answerable for their acts. Nor is it pretended that the goods in question belonged to Maitland & Co. All the representation on that subject was a mere cover to get hold of the property which it was supposed would be seized and forfeited if sent on to New Orleans. The goods have, therefore, been lost by the act of the defendant; for if they had gone on and the non-in

tercourse act had been considered in force, there can be no doubt that under the act of the second of January, 1813, the forfeiture would have been remitted, for the shipment was made within the time limited by that act, and under circumstances bringing the case expressly within its provisions.

The only remaining question is, as to the rule of damages, by which the amount of the recovery is to be regulated. This, we think, ought to be the net value of the goods at New Orleans, the port of delivery. That was the rule adopted by this court in the case of Watkinson v. Laughton, 8 Johnson, 213. Whether interest ought to be allowed or not, depends, principally, upon the light in which the defendant's conduct, or that of his agents, is viewed. The jury might have given interest by way of damages; and the verdict being subject to the opinion of the court, we are substituted in the place of the jury. If there was any fraud or gross misconduct attending the transaction, interest ought to be allowed. But we are inclined to think the conduct of the defendant's agents ought not to be stamped with so odious a character. They appear to have acted under an impression that the goods, if sent on to New Orleans, would inevitably have been seized and forfeited, and entirely lost to the owners, and that what they did would promote their interest. So that upon the whole, we think interest ought not to be allowed. The verdict must accordingly be reduced; and the amount of damages liquidated according to the rule thus laid down.

Judgment for the plaintiffs.

In Leonard v. N. Y. Tel. Co., 41 N. Y. 573, this case is followed on the measure of damages, for failure to deliver; and on the same point in Bailey v. Shaw, 24 N. H. 301; Wells v. Abernethy, 5 Conn. 227; McGregor v. Kilgore, 6 Ohio, 363.

On the point of interest being allowed when there is fraud, the case is noticed in Fowler v. Davenport, 21 Tex. 636; Hinckley v. Beckwith, 13 Wis. 37.

OSTRANDER V. Brown.

[15 JOHNSON, 39.]

DELIVERY BY CARRIER.-It is not a good delivery of goods by a common carrier by water, for him to leave the articles on the dock, not in the presence nor with the knowledge of the consignees; and trover will lie against the carrier for the articles not actually delivered to the consignees.

EVIDENCE OF LOCAL USAGE-Where the precise place of the delivery of

goods by a carrier is material, it may be proper to allow evidence of a local usage; but where the question is whether or not the goods were delivered at all, evidence of usage is inadmissible.

DELIVERY TO CARTMAN.-A delivery of the goods to a cartman, usually or always employed by the consignee to transport, his goods to the store from the dock, is not evidence of the delivery to the consignee of the articles alleged to have been lost, although most of the goods were received by the consignee.

CARRIER'S DUTY TO SECURE GOODS.-Where the consignee is unable or refuses to accept the goods, the carrier must secure them in a place of safety, and will not be justified in leaving them, exposed, on the wharf. ERROR to the mayor's court of the city of Albany. The plaintiffs brought an action of trover against Ostrander to recover the value of a box of tea, shipped, with other merchandise, on board defendant's vessel, to be delivered to Mounsey & Olmstead at Albany. Defendant offered to prove that it was customary at the city of Albany for the masters of vessels laden with merchandise for merchants at that place, to deliver the same by putting it on the dock and giving notice to the consignees, who usually had cartmen to receive the goods, and that such delivery with notice was considered a good delivery. This evidence was rejected. Plaintiffs then offered Carle, a cartman, as a witness, who testified that he had often carted for Mounsey & Olmstead; that he was told by Keeler that there was goods on board the vessel of the defendant, which belonged to the plaintiffs; that he carted to plaintiffs, on two different days, all the goods that were pointed out to him; and that plaintiffs paid witness for such cartage. It appeared that all the goods were received by the plaintiffs save one chest of tea.

Verdict for the plaintiffs.

Foot, for the plaintiff in error, contended that the evidence of usage ought to have been received: Smith v. Wright, 1 Cai. 43 [2 Am. Dec. 162]; Rushforth v. Hadfield, 7 East, 224; Wardell v. Mourillyar, 2 Esp. N. P. 693; Syeds v. Hay, 4 T. R. 260; Hyde v. Trent Nav. Co., 5 Id. 389, 397; Catley v. Wintringham, Peake's N. P. 150; Abbot on Shipping, 247; 2 Com. Cont. 329, 330. That the cartman was the agent of the plaintiffs, and that a delivery on the wharf was a good delivery: 3 Wils. 429; 2 W. Bl. 916; 5 T. R. 389; 4 Id. 581.

Hale, contra.

By Court, PLATT, J. In a case where the precise place of delivery is material, it may be proper to allow evidence of a local usage. For instance, the usage at Havana is often proved

to show that some species of cargoes, such as slaves, are to be delivered at the Moro Castle, and that other articles are deliverable only on the wharfs in the inner harbor. But in this case it seems to me that the only question is, not whether the tea was delivered at the right place, but whether it was delivered at all, to Mounsey & Olmstead.

If it be true, that one of the consignees went on board the vessel and saw a list of the goods, which I think is not proved, that would not be evidence of a delivery. The goods were then in the hold of the vessel. The master soon afterwards put them on the dock, but not in the presence, nor with the knowledge of either of the consignees. No notice was given to Mounse & Olmstead that the goods were unladen or that they had ar rived. But a cartman who "had often carted for them," ar who, no doubt, had often carted for fifty other persons, cane by the direction of Mr. Keeler, a stranger to the plaintiffs below, and on that day carried one load to the store of the consignees; the residue was left all night on the wharf, and the next day the same cartman found some of them in a strange wagon, and the box of tea has not since been heard of. In truth, the only acts done by Mounsey & Olmstead, or their clerk, were to receive in store such articles as the cartman brought to them, and to pay him for carting them, and there is no proof that they ever had any other knowledge of the goods. The weight of evidence clearly shows that neither of them was on board the sloop.

Admitting, then, that the wharf was the place of delivery, a mere landing the goods on the wharf was no delivery. A delivery in this case implies mutual acts of the carrier and the consignees. A tender merely of the goods to the consignees, without their acceptance, would not be a performance of the carrier's duty in such a case. Suppose the consignees had been dead, or absent, or had refused to receive the goods in store, what would have been the carrier's duty? Certainly he would have no right to leave them on the wharf, or in the street, without protection. He would not be justified in abandoning the goods. He had notice that Stafford & Brown were the owners, and if Mounsey & Olmstead would not take charge of the goods as consignees, he ought to have secured them on board his vessel, or in some other place of safety; and that would have entitled him to his freight, with all extra charges.

The decision of the court below, on the question of local usage, was oL a point which is immaterial in this case.