hundred dollars as such security; and this amount paid in Arkansas paper is provided for in the decree herein rendered. What the other deed, that marked exhibit D, No. 1 of the bill, was for is not explained on its face, as anything but a simple conveyance of the property therein mentioned; and the court below did right in not holding it as a mortgage to secure the two bonds of the defendant to the plaintiff of 10th September, 1838, and of the 25th October, 1839, because the evidence did not establish such a conclusion. No reason has been given to us, which we think good, why the statute of limitations. should not be applicable to these obligations. The fact of the plaintiff having, in 1845, paid to the Real Estate Bank a sum of money for the defendant, did not revive actions already barred against the defendant on other and distinct matters of indebtedness, and the settlement of an unliquidated partnership transaction should not involve with it mere personal demands.. Nor is it shown that the four thousand dollar note mentioned in the bill stands in the place of the two bonds referred to, or that it represented an existing debt, but the contrary is implied by the statement of the bill that it was not delivered to the plaintiff, and is shown by its production before the master by the defendant.

The allegations in the bill of improving the lands owned by the plaintiff and the defendant, by clearing and building upon them, and of rents received by the plaintiff, are not proper to be taken into consideration, either to be enforced as mutual demands, or as an element in the partnership transaction in farming. If the plaintiff has put improvements on the land owned by himself and the defendant, without the consent of the latter, he may look for a recompense in a proceeding for partition, so as to have the improved portion assigned to him, or to have a compensation for his improvements in that proceeding. Drennen vs. Walker, 21 Ark. 557.

The partnership transactions of parties present a proper subject of enquiry for a court of equity, and to ascertain the correctness of the decree rendered, we have directed the clerk of

this court, as a special master, to state an account upon the principles herein indicated. His statement coincides with that of the master in chancery in the court below, with two exceptions. He allows to the plaintiff wages as overseer, when none was employed, which entitles him to credit in the account of seven hundred and sixty-four and a half dollars, and charges the defendant with eight hundred dollars, the hire for the negroes of Lewis Jones, under the stipulations of the contract of partnership, instead of computing that hire as part of the expenses of the partnership. The explanations of the account will be found in the report of the master on file. By that report the defendant is entitled, from the partnership proceeds in the hands of the plaintiff, to five hundred and seventy-five dollars, but it is not equitable to require the plaintiff to pay this when he had a demand existing against the defendant for the money paid to the Real Estate Bank, as the defendant's security. That amount slightly overbalances what was due to the defendant, and will be allowed so far as to extinguish the claim of the defendant against the plaintiff, but no farther, as we do not wish to make an individual demand the foundation for a decree.

That part of the decree of the court below which relates to the deeds or mortgages mentioned in the pleadings is affirmed, the decree against the plaintiff for a sum of money is reversed. No decree for money is to be rendered against either party. Each party will pay one-half of the costs in the court below, and in this court-these costs to include the allowances to the masters in each court.

TERM, 1861.]

McClintock ad. vs. Lary et al.

MCCLINTOCK AD. VS. LARY ET AL.

In a suit by the owners of a boat, the certificate of enrollment in the name of the plaintiffs, and the statement of the clerk that he always considered the plaintiff's to be the owners, is sufficient evidence, in the absence of any oppposing proof, of ownership.

Where the owners of a boat make a contract for freight, there is an implied contract that the boat is sea-worthy; and in an action for breaking such contract, it is incumbent on the plaintiffs to prove that at the time when the contract was to be performed, the boat was still sea-worthy and capable of performing it.

The testimony of a witness, that upon an injury to a boat, whereby she was compelled to throw overboard a part of her cargo, her open policy of insurance became void, without proof of any peculiar knowledge on his part, or that such was the established commercial custom, or that he was competent to prove such custom if established, held to be properly excluded in an action by the boat to recover damages for breaking a contract of affreightment.

Where the question of damages is fairly left to the jury, this court will not set aside the verdiet for excessive damages unless there be good ground shown.

Appeal from Lafayette Circuit Court.

Hon. LEN B. GREEN, Circuit Judge.

GALLAGHER and KNIGHT, for the appellant.

The court clearly erred in refusing to permit the defendant to prove that if, after the accident, the cotton had been shipped, by the established custom, it would be at the risk of the shipper, and could not be covered by insurance, either by the open policy of the boat, or by any other policy. "The custom of the place is to be observed," (6 Co. 69.) and the proof of the established custom would have released the defendant from all claim for damages. The sea-worthiness of the boat of a carrier is implied in the undertaking of a carrier by water, and it is also a necessary condition to the attaching of any insurance to the

23 215 58 139

McClintock ad. vs. Lary et al.

[JANUARY

cargo.. 1 Phil. on Ins. secs. 734, 975 695. The right to be in position to effect an insurance, if the shipper desire it, is a part of the contract implied on the part of the carrier, and which only by express agreement is modified or superseded. 1 Phil. on Ins. sec. 698; 1 Greenl. Ev. secs. 4, 5, 6; Gibson vs. Stephens, 8 How. (U. S.) 384.

The damages were excessive in allowing the whole amount of the freight, without taking into consideration the time and expenses saved to the boat.

As the plaintiffs sue as owners upon a contract not made with them, the allegation of ownership is a material averment without proof of which they cannot recover. Carmichael vs. Trustees, etc., 3 How. (Miss. R.) 84. The enrollment was made by Lary, for himself and Chambers, and is no proof of ownership, being nothing more than their own declaration. 1 Greenl. on Ev. sec. 494; Lyon vs. Orleans co., 7 Lou. R. (N. S.) 678.

GARLAND & RANDOLPH, for appelfees.

As the boat was sea-worthy and in a suitable condition to perform the contract, and actually offered to perform it at the proper time, she was in no default, though she might have been, previously, and after the making of the contract, disabled and unseaworthy. The defendant's intestate having violated his contract without fault on the part of the plaintiffs was liable to damages. 2 Parsons on Con. 492; 20 Barb. (N. Y.) 509; 13 Texas, 532.

When a boat has received an injury from accident, and is afterwards repaired, and rendered as seaworthy as before, her capacity and right to carry goods, etc., covered by open policies remains as before the accident. The question is, was the boat seaworthy when the policy attached; and if she was not, did she become so during the voyage and before the breach? If so, the liability of the insurers under the policy is fixed. Par. Mer. L. 424, 429; 11 Pick. 226; 10 Mass. 192.

It is clearly proven that the plaintiffs owned the boat, that the contract was made and broken by the appellant's intestate,

TERM, 1861.]

McClintock ad. vs. Lary et al.

as stated in the declaration, and that the appellees sustained damages to the full amount found by the verdict.

Mr. Chief Justice ENGLISH delivered the opinion of the court. In the spring of the year, 1856, the steam-boat R. M. JONES, was running in the Orleans and upper Red river trade. About the 12th of March, on her up trip, she stopped at a landing called Conway, in Lafayette county, where Thomas R. McClintock, a Red river planter, had 200 bales of cotton ready for shipment, and made a contract with his agent, which he afterwards. approved, to carry the cotton to New Orleans, on her down trip, at $450 per bale; and her clerk made a memorandum of the contract in a book kept for such purposes. After the contract was made, she went up the river to her point of destination, and returned to Conway in good time, and applied for McClintock's cotton, but was informed that he had shipped it upon another boat which had offered to take it at a less price per bale than she had agreed to carry it for.

Afterwards her owners, John M. Lary and William H. Chambers, brought assumpsit against McClintock, in the Lafayette Circuit Court, for breach of the contract of affreightment. Pending the suit, the defendant departed this life, and the cause was revived against James R. McClintock, his administrator.

The case was tried upon the general issue, verdict and judgment in favor of the plaintiffs for $900 damages, and a motion for a new trial overruled.

1. It is insisted for the defendant, who appealed from the judgment, that the plaintiffs failed to prove upon the trial that they were the owners of the boat.

She was registered in the names of the plaintiffs as her owners, before the proper officer, at the port of New Orleans, under the laws of the United States, on the 17th of August, 1854, as proven by the certificate of enrollment, which was read in evidence without objection.

Edward Groves, who was on board as her clerk, at the time