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had first entered the cabin was reclining on the transom, still grasping the cutlass, and with it the boat-knife left by Mr. Clough when he came on board; one of his eyes hung upon his cheek and his body was covered with gore; he was still alive, but did not move, and made no noise but a kind of suppressed groan. One of the men stabbed him twice with a boat-spade, and Mr. Smith discharged a musket at him; he was then caught by the hair, dragged upon deck, and thrown into the sea. The deck presented a shocking spectacle, all dabbled and tracked with clotted blood-the mangled and headless body of the unfortunate captain was lying there, as was that of one of his murderers, which was unceremoniously thrown over the side, while the remains of Captain Norris were collected and reserved for burial the next day. The surviving mutineer jumped overboard and swam some distance from the ship, but returned during the night and hid himself in the forehold. When the crew attempted to take him out the next day he made some show of resistance, but at last came upon deck and surrendered himself; he was put in irons and taken to Sydney, where he was left in prison when the ship sailed.
The Sharon completed her voyage, under the command of Mr. Smith, more successfully than could have been expected after such a melancholy and disheartening interruption, Mr. Clough remaining on board as second mate. To his daring and almost unaided exertions are to be attributed the return of a valuable ship and cargo, and, what is far more important, the preservation of the surviving crew, from the miserable fate which must have overtaken them had they persisted in seeking the nearest land in their boats. The owners of the Sharon have shown their appreciation of his services by giving him the command of a fine ship, and it is to be presumed that other parties who have escaped a heavy loss, will not withhold such a testimonial of their approval, as will at once gratify him and incite others, under like circumstances, to emulate his conduct.
JOURNAL OF MERCANTILE LAW.
CASE OF LIBEL BY THE CONSIGNEE OF GOODS, FOR A FAILURE TO DELIVER THEM
ACCORDING TO CONTRACT.
In United States District Court. In Admirality. Before JUDGE KANE; Pennsylvania, July 25th, 1851. Heinrich Wiener vs. the Rafael Arroyo. The facts in this case sufficiently appear, in the opinion of the Court, as follows:
Judge K. Schleicher & Co., manufacturers at sent certain goods to Bremen, to be there shipped by Bachman, a forwarding merchant, to the libellant, Wiener, at Philadelphia. The city of Bremen is not accessible to large vessels, and it is the practice, in consequence, to transport goods that are intended for exportation, by lighters to Bremen-haven, some miles lower down the Weser, where they are received on ship board.
The bill of lading is signed when the goods are delivered to the lighterman; and as it is known with certainty beforehand whether the ship will be able to carry all the goods that come down for her to Bremen-haven, the custom is said to prevail of giving the master a memorandum of defeasance called a "Revers," by which the bill of lading is declared to be null as to the part of the cargo not actually taken on board. Bachman sent down the goods by a lighter, taking from the master of the "Rafael Arroyo" a clean bill of lading, in which Wiener was named as consignee, and executing at the same time the customary "Revers." The goods, however, were either not received on board the vessel in consequence of her being already full, or they were landed again after she had proceeded some miles, in consequence of her being obliged to return to have her cargo restowed. The bill of lading came to the libellant by the vessel, with a letter of advice from Bachman, which, however, made no mention of the "Revers;" VOL. XXVI.-NO. III. 22
but the goods of course were not delivered in Philadelphia according to the terms of the bill. They arrived in another ship some weeks afterwards, and while this suit was pending.
So far as third persons are concerned, the master and his vessel are bound absolutely by the terms of the bill of lading. No agreement or understanding between the parties to the shipment can vary or affect this liability. Stille vs. Traverse, 3 W. C. C. R. 43. The asserted usage of the port of Bremen may interpret and define the reciprocal engagements of the shipper and the carrier, for the bargain between them must be understood as made with reference to it. But as to the rest of the world, the bill of lading is a negotiable instrument, known as such to the law merchant everywhere, and the obligations which it imports appear upon its face.
The real question in this case is whether the libellant had a property in the goods before their arrival and delivery to him; for if he is merely the represen tative of the shipper, his rights may perhaps be restricted by a reference to the Bremen usage.
In general, it is true, that as against the shipper, a factor consignee has not such a property until the goods are actually in his possession, even though he be also a creditor; unless there has been some act of appropriation to his use by the shipper, something to indicate that the shipment was intended for the protection at least of the factor. Kinlock vs. Craig, 3 D. &. E. 122, 787; Walter vs. Ross, 2 W. C. C. R. 287.
But as between the carrier and the consignee, the law is different. The factor consignee acquires by the execution and delivery of the bill of lading, a qualified or contingent interest, which it is not in the power of the carrier, nor, except under certain circumstances, of the shipper, also to divest or question. See Anderson vs. Clarke, 2 Bing. 20. The right of the consignee to sue in assumsit or in trover at his election assumes this.
Now the fact is not disputed that the libellant was at the time of shipping, and has since continued to be, in advance to the shippers; and there is nothing from which we can infer that the shipment was not intended to secure him for his current advances.
The shipper does not stand in his way. The decree therefore must be for the libellant for costs; the goods having since been delivered to him. P. C., decree accordingly.
HOMESTEAD EXEMPTION LAW OF SOUTH CAROLINA.
The following "Act to increase the amount of property, exempt from levy and sale," was passed at the annual session, and ratified on the 16th December, 1851.
AN ACT TO INCREASE THE AMOUNT OF PROPERTY EXEMPT FROM LEVY AND SALE.
I. Be it enacted by the Senate and House of Representatives, now met and sitting in General Assembly, and by the authority of the same, That the following property, in addition to that now exempted by law, to wit:-to each family the dwelling house, and houses appurtenant thereto, together with 50 acres of land, and also one horse, and twenty-five dollars worth of provisions, be, and the same are hereby exempted from levy and sale, under fieri facias and assignment under me-ne or final process: Provided, that the said exemption shall not include, or extend to any property situate within the limits of any city or town corporate of this State. And provided further, that the value of the said real estate shall not exceed the sum of five hundred dollars.
II. That in all cases, where the landed property of the debtor shall exceed fifty acres, three Commissioners shall be appointed by the clerk of the court, upon the application of either the plaintiff or defendant in the execution, whose duty it shall be to lay off to the debtor fifty acres of land, including the homestead, which shall always be done most favorably and beneficially for the family
for whose benefit the provision is made; the remainder of whose land may be liable as in other cases.
III. And if the said fifty acres, including the homestead so laid off, shall exceed in value, by the estimate of said Commissioners, or a majority of them, the sum of five hundred dollars: then and in all such cases, the said Commissioners shall proceed to lay off such quantity less than fifty acres, as hereinbefore provided, the value of which shall not exceed the said sum of five hundred dollars, the remainder of which may be sold as in other cases.
IV. That the said Commissioners shall make a full return under their hands and seals, of their proceedings in the premises, together with a plat or some other concise description of the lands laid off by them, to the clerk of the court, and shall be entitled to receive a compensation for their services, not exceeding one dollar each, per day, to be paid by the defendant; and the clerk of the court shall keep a suitable book, in which the appointment of the Commissioners, together with their return, and all other proceedings in the case, shall be recorded, for which services, the said clerk shall be entitled to receive in like manner, from the defendant, the sum of three dollars.
V. That this Act shall take effect, from and after the first day of March next, in relation to all debts thereafter contracted.
ACTION ON A BILL OF LADING.
In the Supreme Court of Louisiana, November, 1851. Lewis Bond vs. S. W. Frost and owners of Steamboat Concordia.
A bill of lading which acknowledges the receipt of goods in good order, throws the burden of proof upon the carrier, and its recital canot be overthrown or qualified except by evidence of a very clear and convincing character.
This is a suit for damages alleged to have been sustained by the plaintiff on a lot of cotton, which was shipped on the steamboat Naomi on the Hatchee river, for New Orleans, with the privilege of reshipping, was discharged at Memphis, and reshipped on the steamboat Concordia, consigned to the plaintiff's factors here. The Concordia gave a bill of lading, in which the cotton is receipted for, as in good order and condition. The bill stipulated freight from Memphis to New Orleans at one dollar a bale-the consignees to pay also a sum of $106 87, amount of freight and charges, advanced by the Concordia to the Naomi. Upon the arrival of the cotton at New Orleans, it was found that fifty bales were damaged by water. The consignees refused to pay defendants their bill of freight and charges; but received the cotton, with the exception of five bales, which the defendants retained to reimburse themselves, and subsequently sold without the plaintiff's consent. The plaintiff brought suit, and claimed for the five bales short, loss of weight eiused by picking fifty damaged bales, costs of picking, &c.
There was judgment in the fourth district court for the plaintiff, for the whole amont claimed, and the defendants appealed. The cotton was damaged on one side only, and the principal contest between the parties was, whether this damage occurred before or after the shipment on board the Concordia. It was contended for the defendants, that the bill of lading was not conclusive against the vessel, and was open to explanation.
Slidell, Juice-Held that the receipt throws the burden of proof on the vessel, and that its recit I cannot be overthrown or qualified, except by evidence of a very clear and convincing character.
The court concurs with the district judge, that the evidence preponderates in favor of the plai wiff, and that it was not shown that the damage had occurred before the shipment on the Concordia.
It was also con ended for the defendants, that the damage, if shown to have occurred on board the Concordia, arose rather from the usual practice of carrying cotton on deck, and not from any fault on the part of the carrier; but no evidence was introduced sufficient to show that the damage was the necessary consequence of a mod of armsportation to which the shipper assented. In the plaintiff's bill of damages, there is an item for loss of weight in picking amounting to 1,713 pounds,
for which defendant is charged $205 56. The cotton picker testified that he kept the cotton picked from the damaged bales, dried it, sold it, and got the money for it, and that the damaged cotton which he kept is considered part of the price of picking. The court considered that if the defendants are made to pay for the sound value of the cotton damaged, it would be unreasonable not to allow them for its proceeds; that although the amount in the case is not large, it involves the justice and reasonableness of a practice, the propriety of which is questionable; and that as the evidence in this branch of the case is unsatisfactory, the case should undergo further investigation. Judgment reversed, and case remanded for a new trial.
COMMERCIAL CHRONICLE AND REVIEW.
COMPARATIVE TRADE FOR JANUARY AND FEBRUARY-DISTINCTIVE FEATURES OF THE SEASON'S BUSINESS-CHARACTER OF THE AMERICAN MERCHANT, SHOWING THE VALUE OF LESSONS OF CAUTION-DIFFICULTIES NOW EXPERIENCED RESULTING FROM HEEDLESSNESS DURING PAST PROSPERITY-STATE OF THE COUNTRY IN THE SOUTH AND WEST, WITH PROSPECTS FOR THE FUTURE-COMPARATIVE PRICES OF BREADSTUFFS, AND THE OPENING DEMAND FROM ABROADHEAVY PAYMENTS DUE IN MARCH AS COMPARED WITH CORRESPONDING RECEIPTS-CONDITION AND PROSPECTS OF THE COTTON AND WOOLEN MANUFACTURING INTERESTS-RELATIVE COST OF RAW MATERIALS-DIFFICULTY OF INCREASING WOOL CROP PROPRIETY OF ABOLISHING DUTIES ON ALL RAW MATERIALS AND DYE-STUFFS OTHER OBSTACLES TO SUCCESS IN MANUFACTURING-RETURN OF FEDERAL STOCKS FROM ABROAD, WITH THE REASONS THEREOF, AND A COMPARISON OF PRICES AT DIFFERENT DATES-CONDITION OF THE BANKS-DEPOSITS AND COINAGE FOR THE MONTH OF JANUARY AT THE PHILADELPHIA AND NEW ORLEANS MINTS-IMPORTS AT NEW YORK FOR JANUARY-IMPORTS OF DRY GOODS FOR THE SAME PERIOD-RECEIPTS OF CASH DUTIES-EXPORTS FROM NEW YORK FOR JANUARY-SUMMARY OF THE LEADING ARTICLES OF PRODUCE EXPORTED AS COMPARED WITH THE SAME PERIOD OF 1851-FALLING OFF IN GENERAL IMPORTS AT NEW YORK, AND THROUGHOUT THE UNITED STATES-DECLINE IN VALUE OF AMERICAN COIN AT LONDON, ETC.
SINCE our last the spring trade has been more active throughout the country, although in amount the sales are still far behind the corresponding period of last year. In our large commercial cities, the sales of dry goods from first hands for January, were only about 50 per cent of the amount sold during January, 1851; and in most other articles of trade the sales exhibited a corresponding reduction. The comparison for February is far more favorable, and in many items a portion of the January decrease has been recovered. A marked feature of the trade this season is the caution evinced by buyers, showing that the lessons of the past have exerted a most salutary influence. One of the greatest faults in the character of the American merchant is too much self-reliance, accompanied with a sanguine temperament, which often leads him into a sphere too large for his means. There are very few sufficiently cool to resist the temptation of doing all the business which legitimately offers, and this is the rock on which a great many make shipwreck. We have had several years of prosperity, and public confidence has been so general, that those whose business was far too extended for their capital, have not felt the consequences of their presumption. During the present season, their position has been troublesome, and not a few have felt that if safely over this crisis, they would not again venture beyond their depth. As a consequence of this, the purchases since the spring trade opened, have been made in very small lots, and with greater caution. One of the most ominous signs of trouble has been the difficulty of making collections throughout the country. The falling off in the means realized through this source, we have
ascertained by a careful average to be about 25 per cent at the South, and about 331 per cent at the West. In both sections, however, the returns are improving. The rapid decline in cotton, which took away the spirit of Southern merchants, has been checked, and a lower estimate of the crop has given more firmness to the price of this staple in all the markets of the world. Farther fluctuations may, and doubtless will, occur, but the large sales made both at the north and south show that present rates have been made the basis of extensive operations, in the belief that a fair average price had been attained. Similar causes have operated to strengthen public confidence in the financial ability of the West. The scarcity of money either to remit, or to buy produce, with the very low prices of the latter, which disinclined all parties to send forward their surplus, occurred just at the setting in of a very severe winter, which shut up all the more ordinary channels of communication, and left the merchants on the seaboard without a large portion of the means they expected to derive from their maturing sales. The rivers and canals are still, to a great extent, ice-bound, and the produce is locked up in the granary far from market; but the demand has improved, and there are some indications that the old world is again to be fed by the new. Even if no farther rise in breadstuffs should be realized, or even a concession be made from present rates, should an opening be found abroad for $20,000,000 of flour and grain, this quantity could easily be spared from our western surplus, and the whole country be relieved. Flour is fully $1 00 per barrel higher in our Atlantic cities than at the close of autumn, and this difference will draw out large quantities of cereals when navigation is once more resumed. The month of March will undoubtedly be the trying period with the jobbers; but if confidence be maintained no commercial disasters need be anticipated. The fact that large payments are due, as shown by the notes held by the banks, proves also that large receipts may be expected, and the one will fully balance the other. The money realized for the paper falling due will furnish ample accommodations for those having the payments to make, and will be applied to this end if nothing occur to justify a farther contraction, or to create a greater stringency in the money market.
The manufacturing interest throughout the country is, on the whole, in a more hopeful condition, although the exceptions to a general prosperity are still numerous. The decline in the price of cotton, from the excessive rates of last year, has not been accompanied by a corresponding decline in the value of fabrics, so that the cotton spinners are generally doing better than last year. In the woolen business the prospect is less cheering. There has been some decline in the price of the raw material, but much less than manufacturers had reason to expect. The wool crop is less under the influence of supply and demand than crops taken from the produce of the earth. The average price of this staple for the last two years has been fully 10 cents per pound, above the fair market value as compared with other crops of the same cost. It is not easy to increase the production of wool in a single year. The only way to effect any marked difference in the supply, is to save the thousands of sheep and lambs annually slaughtered for food. The high price of mutton, as an article of provision, has more than counter-balanced the inducement to spare the sheep for the wool, and thus with a largely increased consumption of wool, the demand has continued sufficient to prevent any serious decline. In justice to our manufacturers, the