"(2) The usual cargo at Benizaf is iron ore. In loading, a vessel lies out in the stream about a quarter of a mile from the shore, and the ore is taken to her in small boats of from five to seven tons burden each. It is then passed up the ship's sides in baskets. Two or three stages are put up between the boats and the ship's decks, and two men on each stage receive and pass the baskets. This is the only way of loading such cargo at that port.

"(3) About the first of August, Gregg & Co., a firm of ship-brokers in Philadelphia, were authorized, by cable message from the owners in England, to get a charter for the Whickham, to carry grain from the United States, on her return voyage. Not being able to do this in Philadelphia, the firm, on the first of August, telegraphed Mr. Erickson, a ship-broker in Baltimore, to look for a charter in that city. In their telegram it was said that the vessel 'had sailed, or was about to sail, from Benizaf, with cargo, for Philadelphia.' The precise form of the authority given by the owners to Gregg & Co. is nowhere shown from the evidence, further than may be inferred from the tele-* gram to Erickson.

"(4) A short time before the first of August, Schumacher & Co., of Baltimore, the original libelants, employed Mr. Foard, another ship-broker in that city, to procure for them a vessel to take a cargo of grain to Europe, which they were under contract to ship in August. He, finding that the steamers for that month were scarce, and hearing of the Whickham, took Mr. Erickson to the office of Schumacher & Co., and suggested that she might do. At the interview which then took place, it was understood by all parties that a vessel was wanted that could be loaded in August, and that no other would arswer the purpose. Schumacher & Co., doubting whether the Whickham could arrive in time, wanted a guaranty that she would, but this was declined. All parties then made their calculations as to the probable time of her arrival, upon the basis of the language in the telegram, and finally Schumacher & Co. agreed to take her, first, however, providing that she might be loaded in Philadelphia or Baltimore, at their option, intending, if she did not arrive in time for Baltimore, to get her cargo, under their contract, in Philadelphia. In these calculations it was assumed by all that she would get away from Benizaf not later than the second of August, and that her voyage across would probably be about twenty days. This all occurred in Baltimore on the first of August, and it does not appear from the evidence that any of the parties, either in Philadelphia or Baltimore, knew anything of the movements of the vessel except as they were to be inferred from the telegram. There was no communication with Benizaf by telegraph, the nearest telegraphic station being at Gibraltar, which was a day's sail away.

"(5) As soon as the bargain was concluded, Erickson sent to Gregg & Co. for a charter-party in form. They immediately sent the draft of one, in which the vessel was described as 'sailed from, or loading at, Benizaf.' This Schumacher & Co. declined to accept, on the ground that their agreement was for a vessel that had sailed, or was about to sail, from Benizaf, with cargo, for Philadelphia.' This being communicated to Gregg & Co., they at once sent forward a new draft, to meet the wishes of Schumacher & Co., and using the language they insisted upon. This new draft reached Baltimore on the second of August, and was duly executed by all parties. This is the instrument, a copy of which is marked Exhibit A, and filed with the original libel. From this it appears that, in the printed blank which was used, there were the following words: Charterers to have option of canceling this charter-party should vessel not have arrived at loading port prior to .' These words were erased by drawing a pen through them, before signing.

"(6) Schumacher & Co. having ascertained, on the ninth of August, that the steamer passed oraltar outwards from Benizaf on that day, and being then satisded that she would not arrive in time to load, either at Baltimore or Phila

delphia, in August, at once set about securing another vessel, and on the 16th got one, which they afterwards loaded at an increased cost of freight to them, over what they would have been compelled to pay the Whickham, of one thousand nine hundred and eighty-eight 25-100 dollars. It is agreed that this new charter was effected on as favorable terms as it could have been in the month of August, and that, if Schumacher & Co. are entitled to recover at all, it must be for the increase in the cost of freight which they paid.

"(7) The discharge of the cargo of iron ore from the Whickham was completed with dispatch, at Philadelphia, and on the seventh of September she sailed for Baltimore, where she arrived on the 9th, and was tendered Schumacher & Co., under the charter, on the 11th. They declined to accept her, for the reason that, as they claimed, when the charter-party was entered into, she had neither sailed nor was about to sail from Benizaf, within the meaning of that provision in the charter, as understood by the parties. Another charter was then obtained, but at a loss to her of four thousand and ninety-three 18-100 dollars, as of May 10, 1880. It is agreed that this charter was as favorable as any that could have been effected, and that, if her owners are entitled to recover at all, it must be for the above amount, as their loss."

The circuit court stated the following conclusions of law: "(1) That the Whickham was not about to sail from Benizaf on the first of August, within the meaning of that term as used in the charter-party; (2) that Schumacher & Co. are entitled to recover from the defendants to their libel the sum of $1,988.25, and the interest thereon from September 11, 1879; (3) that the cross-libel of T. H. Davison and others must be dismissed."

A decree was entered in the two suits, reversing the decrees of the district court, and adjudging a recovery of $2,128.07, with interest until paid, in favor of the charterers, and dismissing the cross-libel. 5 Hughes, 221, and 4 Fed. Rep. 346. The owners of the vessel have appealed to this court. The decision of the circuit court proceeded on the ground that the language of the charterparty must be interpreted, if possible, as the parties in Baltimore understood it when they were contracting. In view of the facts that all the contracting parties understood that the vessel was wanted to load in August; that, as soon as the charterers learned that she did not leave Gibraltar until the 9th, they took steps to get another vessel; and that they declined to sign a charter-party which described the vessel as "sailed from, or loading at, Benizaf,”. the court held that the language of the charter-party meant that the vessel had either sailed, or was about ready to sail, with cargo; and that the vessel was not in the condition she was represented, being not more than threeelevenths loaded.

The argument for the appellants is that the words of the charter-party, "about to sail with cargo," imply that the vessel has some cargo on board, but is detained from sailing by not having all on board, and that she will sail when, with dispatch, all her cargo, which is loading with dispatch, shall be on board; and that this vessel fulfilled those conditions. As to the attendant circumstances at Baltimore, it is urged that the charterers asked for a guaranty that the vessel would arrive in time for their purposes, and it was refused, and that the printed clause as to an option in the charterers to cancel was stricken out, and that then the charterers accepted the general words used. The words of the charter-party are, "now sailed, or about to sail, from Benizaf, with cargo, for Philadelphia." The word "loading" is not found in the contract. The sentence in question implies that the vessel is loaded, because the words "with cargo" apply not only to the words "about to sail," but to the word "sailed;" and as, if the vessel had "sailed with cargo," she must have had her cargo on board, so, if it is agreed she is "about to sail with cargo," the meaning is that she has her cargo on board, and is ready to sail. This construction is in harmony with all that occurred between the parties at the time, and with the conduct of the charterers afterwards.

The charterers wanted a guaranty that, even if the vessel had already sailed, or whenever she should sail, she would arrive in time for them to load her with grain in August. This was refused, and the charterers took the risk of her arriving in time, if she had sailed, or if, having her cargo then on board, she should, as the charter-party says, "with all convenient speed, sail and proceed to Philadelphia or Baltimore." Moreover, the charterers refused to sign a charter-party with the words "sailed from, or loading at, Benizaf," and both parties agreed on the words in the charter-party, which were the words of authority used by the agents in Philadelphia of the owners of the vessel. The erasing of the printed words, as to the option of canceling, was in harmony with the refusal of the owners to guaranty arrival by a certain day. So, also, when the charterers learned, on the ninth of August, that the vessel did not leave Gibraltar till that day, they proceeded to look for another vessel. It was then apparent that the vessel had not left Benizaf by the first of August, or with such reasonable dispatch thereafter that she could have had her cargo on board, ready to sail, on the first of August.

That the stipulation in the charter-party, that the vessel is “now sailed, or about to sail, from Benizaf, with cargo, for Philadelphia," is a warranty, or a condition precedent, is, we think, quite clear. It is a substantive part of the contract, and not a mere representation, and is not an independent agreement, serving only as a foundation for an action for compensation in dam-* ages. A breach of it by one party justifies a repudiation of the contract by the other party, if it has not been partially executed in his favor. The case falls within the class of which Glaholm v. Hays, 2 Man. & G. 257; Ollive v. Booker, 1 Exch. 416; Oliver v. Fielden, 4 Exch. 135; Gorrissen v. Perrin, 2 C. B. (N. S.) 681; Croockewit v. Fletcher, 1 Hurl. & N. 893; Seeger v. Duthie, 8 C. B. (N. S.) 45; Behn v. Burness, 3 Bst & S. 751; Corkling v. Massey, L. R. 8 C. P. 395; and Lowber v. Bangs, 2 Wall. 728, are examples; and not within the class illustrated by Tarrabochia v. Hickie, 1 Hurl. & N. 183; Dimech v. Corlett, 12 Moore, P. C. 199; and Clipsham v. Vertue, 5 Q. B. 265. It is apparent, from the averments in the pleadings of the charterers, of facts which are established by the findings, that time and the situation of the vessel were material and essential parts of the contract. Construing the contract by the aid of, and in the light of, the circumstances existing at the time it was made, averred in the pleadings and found as facts, we have no difficulty in holding the stipulation in question to be a warranty. See Abb. Shipp. (11th Ed.) by Shee, 227, 228. But the instrument must be construed with reference to the intention of the parties when it was made, irrespective of any events afterwards occurring; and we place our decision on the ground that the stipu lation was originally intended to be, and by its terms imports, a condition precedent. The position of the vessel at Benizaf, on the first of August,the fact that, if she had not then sailed, she was laden with cargo, so that she could sail,-these were the only data on which the charterers could make any calculation as to whether she could arrive so as to discharge and reload in August. They rejected her as loading; but, if she was in such a situation, with cargo in her, that she could be said to be "about to sail," because she was ready to sail, they took the risk as to the length of her voyage. The decree of the circuit court is affirmed.

(113 U. S. 33)

LIVERPOOL, NEW YORK & PHILADELPHIA STEAM-SHIP Co. v. COMMISSIONERS OF EMIGRATION.

(January 5, 1885.)

1. PLEADING-MONEY ILLEGALLY EXACTED DECLARATION.

In an action of indebitatus assumpsit, to recover money alleged to have been ille gally exacted, a declaration, which avers the fact of indebtedness, and a promise in consideration thereof, is sufficient on general demurrer, unless it appears that the alleged indebtedness was impossible in law.

2. SAME-NEW YORK CODE-ANSWER-EVIDENCE.

To such a declaration, treated as a complaint according to the New York Code, an answer was filed, setting up, as a defense, an act of congress to legalize the collection of head-moneys already paid, approved June 19, 1878. The circuit court refused to hear evidence in support of the plaintiff's case, and gave judgment on the pleadings in favor of the defendant. Held, that this was error, because it did not appear from the record that the money sued for was within the description of the act of congress.

In Error to the Circuit Court of the United States for the Southern District of New York.

Ashbel Green, for plaintiff in error. Louis Sanders and Geo. N. Sanders, for defendant in error.

MATTHEWS, J. The plaintiff in error was plaintiff below, and, being a corporation under the laws of Great Britain, and an alien, brought this action in the circuit court of the United States for the Southern district of New York, the defendant being a corporation of that state.

The action was in form indebitatus assumpsit, and the substance of the declaration was as follows: “(3) And the said plaintiff, by its said attorneys, complains of the said defendant in a plea of assumpsit upon implied promise for that, whereas, the said defendant, on the tenth day of February, 1875, at the city of New York, in the Southern district of New York, aforesaid, was indebted to the said plaintiff in the sum of one million and ninety-three thousand dollars and upwards, lawful money of the United States of America, for certain commutation moneys from the plaintiff unlawfully demanded, exacted, and received at the city of New York by the said defendant under color of certain laws in the state of New York, concerning passengers in vessels coming to the state of New York, and concerning the powers and duties of commissioners of emigration, and for the regulation of marine hospitals, and paid by the said plaintiff under the inducement of certain representations of the defendant, this plaintiff being an alien and not knowing the laws of the state of New York, and under protest at various times preceding the said tenth day of February, 1875, and in various sums, and to and for the use of the plaintiff. (4) And being so indebted, the said defendant, in consideration thereof, afterwards, to-wit, on the same day and year last aforesaid, at the place aforesaid, undertook and then and there faithfully promised the said plaintiff, well and truly to pay unto the said plaintiff, the said sum of money when," etc., and alleging a breach thereof.

To this declaration, treating it as a complaint according to the procedure under the New York Code, the defendant filed an answer setting up several distinct defenses, and, among others, the following: "(7) That by an act of congress, entitled 'A bill to legalize the collection of head-moneys already paid,' approved June 19, 1878, the acts of every state and municipal officer or corporation in the several states of the United States in collection of headmoneys for every passenger brought to the United States prior to the first day of January, 1877, under then existing laws of the several states, were declared valid, and the said acts were ratified, adopted, and confirmed by the United States; and it was further declared that no suits for the recovery of the moneys so paid should be maintained against any state or municipal officer or corporation. That plaintiff, in prosecuting this action, is maintaining it for

the recovery of head-moneys paid prior to first January, 1877, pursuant to the then existing laws of the state of New York, for passengers, by the master, consignee, or owner of vessels bringing passengers to the United States from a foreign port, against this defendant as a state corporation of New York, against the form of the statute aforesaid, which said statute this defendant pleads in bar of plaintiff's right to maintain this action, and of the jurisdiction of this court to entertain the same."

The bill of exceptions, taken at the trial, shows the following proceedings: "The counsel for the said plaintiff opened the cause to the jury. The defendant's counsel moved to dismiss on the grounds that the court had no jurisdiction, and that an act of congress, entitled ‘A bill to legalize the collection of head-moneys already paid,' approved June 19, 1878, was a bar to any recovery on any of the alleged causes of action set forth in the complaint. Whereupon the court, being of opinion that said bill was a bar to any recovery on any of the alleged causes of action set forth in the complaint, upon that ground refused to hear evidence, and directed a verdict for the defendants, and that the defendants have judgment against the plaintiff, with costs. Whereupon the counsel for the plaintiffs, in due time, then and there duly excepted to the ruling, opinion, decision, and direction of the said judge," etc. Judgment was accordingly rendered for the defendant, to review which this writ of error is prosecuted.

The act of congress of June 19, 1878, referred to in the bill of exceptions by its title, is as follows, (20 St. 177:) "Be it enacted, etc., that the acts of every state and municipal officer, or corporation, of the several states of the United States, in the collection of head-moneys, prior to the first day of January, 1877, from the master, consignee, or owner of any vessel bringing passengers to the United States from a foreign port, pursuant to the then existing laws of the several states, shall be valid, and no action shall be maintained against any such state, or municipal officer, or corporation, for the recovery of any moneys so paid or collected prior to said date."

It is contended by counsel for the plaintiff in error that the sole question open for argument here, because the only one passed on by the circuit court, is whether this act of congress is a valid enactment, though it is admitted that this question divides itself into two: whether congress had constitutional power to make valid, by subsequent ratification, those laws of the states, which had been previously declared to be void, as regulations of commerce with foreign nations; and whether, if not, it nevertheless could forbid resort to the courts of the United States to those otherwise entitled, claiming redress for what had been done, to their damage, under such statutes of the states. On the other hand, it has been argued in support of the judgment by counsel for the defendant in error: (1) That the payments alleged to have been made in the complaint were voluntary, for which no recovery can be had on general principles of law; (2) that the defendant in error, being sued in its official capacity, is not suable, being merely the official representative of the state of New York, and that, at least, its relation to the subject is such under the laws of New York, under which it assumed to act, that it is not chargeable upon any principles of implied contract for the moneys alleged to have been paid; (3) and that the act of congress referred to is a valid enactment and a bar to the action.

These questions, particularly that which challenges the constitutionality of the act of congress, it is manifest, are of very grave importance; and, after much consideration, we feel constrained to reverse the judgment, without deciding any of them. The reasons, which seem to us to require this course, may be very briefly stated.

The bill of exceptions states that the counsel for the plaintiff below, after* the jury had been sworn to try the issues, opened the cause to the jury,—that is, made a statement of the facts constituting the cause of action which he

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