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N. Y. Superior Court.-Review.

BARBOUR'S SUPREME COURT REPORTS, VOL. V.

REPORTS OF CASES IN LAW AND EQUITY in the Supreme Court of the State of New-York. By OLIVER BARBOUR, Counsellor at Law, Vol. 5. ALBANY: GOULD, BANKS & GOULD, 475 Broadway. NEW-YORK: BANKS, GOULD & Co., 144 Nassau Street. 1850.

Our professional brethren cannot accuse Mr. Barbour of delay in furnishing us with the Reports of the decisions in the Supreme Court. The present volume, contains, we should think, nearly all the cases decided up to the present time. The way in which these cases have been reported by Mr. Barbour reflect great credit upon him. The present volume contains all the important cases that have been argued during the past year, commencing with the case of the Receiver of the North American Trust and Banking Company, v. Blatchford, heard in November, 1848: want of space we regret to say, prevents our noticing some of the decisions in this volume. We may, however, observe that it is in every respect equal to the preceding ones, with respect to the manner in which the cases are stated, and the judicious selections of the matter eported.

THE GALLERY OF ILLUSTRIOUS AMERICANS, containing the portraits and Biographical sketches of 24 of the most eminent citizens of the Republic who have flourished since the death of WASHINGTON. EDITED by C. EDWARDS LESTER.-No. 6., John James Fremont.

This magnificent work, which has met with unbounded popular favor, and which, without a question, surpasses in truth, fulness and beauty of likenesses, elegance and luxury, any similar work ever published, is now being issued rapidly, and is commanding universal applause and favor. Already the Portraits and Biographies of Gen. Taylor, Calhoun, Webster, Clay, Silas Wright, and Col. Fremont are out, and Andubon, Prescott, Irving, Kent and Dewitt Clinton are soon to follow. There are to be 24 in all, and the collection will be a superb and unrivalled monument of art, taste and patriotism. The last number is devoted to Col. Fremont, who has added to modern science more than almost any other man now living. His achievements seem more like feats of chivalry or the creations of romance than sober history. Mr. Brady, who stands at the highest point of his art, gave D'Arignon, the engraver of the heads of this gallery, one of his best Daguerreotypes, which has been exquisitely engraved, and Mr. Lester's powerful pen is clearly visible in the accompanying sketch of Fremont's life. Such a happy combination of literary and artistic talent is very rare. We are glad to learn that the "Gallery" has in its success outstripped all the calculations of its proprietors. It is published at Brady's Gallery, 205 Broadway, where subscriptions are received.

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JAMES SPRAGUE and others v. J. SELBY WEST.-26th July, 1849.

DEMURRAGE.

The shipper of a cargo is liable to the vessel for any unnecessary detention in loading or unloading, although no express contract is made on the subject. Whether the same rule applies to a mere consignee. Quere.

Every improper detention of a vessel may be considered a demurrage, and compensation may be obtained for it under the name of demurrage.

The vessel takes the hazard of working weather. The shipper takes the risk of roads and means of transportation. He is to take the cargo as delivered to him at the vessel's side, and to supply means of removing it as fast as the vessel can be reasonably discharged. If he fail to do it he is liable for the damages.

The Admiralty has jurisdiction over sea, freights and demurrage resulting from such voyages.

THE schooner John R. Watson, took in at Philadelphia a cargo of coal belonging to J. Selby West, and consigned to him in New-York. The usual bills of lading were signed, freight payable in New-York, and the delivery of the cargo to West at the foot of 42d street, (his coal yard,) without any stipulation as to demurrage, detention, or lay days. The vessel arrived in New-York, at the foot of 42d street, on the 19th Dec., and was ordered by the consignee to 29th street to discharge. He was notified that the vessel was ready on the 20th, and again in writing on the 21st. Four working days were enough to discharge the cargo, and the captain and his men were at all times ready, but the vessel was not in fact discharged till the 4th January, because the consignee did not send carts enough to remove the coal as fast as it could be discharged. The owners of the vessel filed this libel against the consignee in personam for damages for the detention of the vessel.*

.520.

* The libel in this cause may be found at length in Benedict's Admiralty, p. 5
VOL. VIII.
31

U. S. District Court.-Sprague et al. v. West.

The defendant denied the jurisdiction of the court; denied his liability in the absence of an express contract, and justified the delay on the ground of bad weather, bad streets, and the distance of the vessel from his coal-yard. The cause was argued by Mr. Benedict, for the libellant, and by Mr. Brewster, for the defendant.

Per Curiam.-A cargo of 194 tons of coal belonging to the defendant was shipped at Philadelphia on board the libellant's vessel. The master signed a bill of lading to deliver the same to the respondent, at forty-second street, New-York, for ninety cents per ton freight.

The vessel arrived at the place designated on the 19th of December last, and the respondent not being able to receive the coal at that place, ordered him to moor at twenty-ninth street, and unload there. She took her berth at that place the same day, and the next morning was ready to commence discharging, of which a verbal and then a written notice was given the respondent, with further notice that demurrage would be claimed of him for any unnecessary detention of the vessel. The written notice was served the 21st. The respondent failed supplying the carts necessary to remove the coal, and the vessel was not fully discharged of her cargo until the 4th of January. Although the weather was at times stormy and the roads bad, yet on the proofs, neither was such as to prevent unloading the vessel at once, and it is well established, that with ordinary diligence the cargo could have been delivered in three days. The libel alleges four days was amply sufficient.

The libellant undoubtedly took the hazard of working weather. The evidence to that point is satisfactory, that coal was constantly unladen and carted from North river piers during these days, and a vessel of the burthen of this one, coming to her dock the same day, was completely discharged, having 150 tons on board, and sailed again within three days. Accordingly, the state of the weather did not prevent the work being done.

The respondent is bound to take the risk of roads and means of transportation. He is to take the coal as delivered him at the vessel's side, and to supply means of removing it as fast as the vessel can be reasonably discharged.

This is the general rule of maritime law, (The Grafton, 4 vol.; Decisions 79, affirmed on appeal,) and the evidence in the present case shows it the established custom of the coal trade at this port.

The respondent had then the 20th, 21st, 22d, and 23d of December, when there was suitable weather, and the vessel in readiness to discharge, which would have afforded him time to take away the whole cargo. But giving him four full days, including the 21st, and deducting Sunday, the 24th, and Christmas, the vessel should have been discharged the 26th, and all her detention beyond that period was unnecessary, and caused by the fault and delinquency of the respondent.

The position is taken by the respondent that demurrage is only recoverable on express stipulation to pay it, and that the bill of lading

U. S. District Court.-Sprague et al. v. West.

being an ordinary one in this case, the libellants have no remedy against the consignee, beyond the freight stipulated to be paid.

It is not to be denied that the policy would be wise and liable to less disturbance in navigation and trade, if the parties, as is suggested in some of the English cases, would always note in the bill of lading or charter party, the time allowed for unlading or lading, and the consequence of overrunning the period; and probably, upon the more modern authorities, (Abbott, 304; 3 Johns. R. 342,) the consignee cannot be made liable on an implied obligation for demurrage, no express agreement or stipulation being made in the charter party or bill of lading in respect to it or lay days.

But the doctrine is different in regard to the freighter. He is held liable to the vessel for any unnecessary detention in loading or unloading, although no express contract is made on the subject, (Holt's Law of Shipping, p. 3, ch. 1, § 25,) and to the same effect are the ancient ordinances, and the rules of other maritime countries, (1 Valin, 649, 650,) and the English courts, though hesitating somewhat at terming the compensation demurrage, hold that the freighter or consignee who improperly detains a vessel, is liable to a special action on the case for the damage resulting from such detention, (9 Car. & P. 709; 11 Mees. and Wels. 498.) Courts of Admiralty proceed upon the right without regard to forms or modes of actions; but independent of that, the suggestion that demurrage only results from contract is undoubtedly giving too narrow an effect to the term. Every improper detention of a vessel may be considered a demurrage, and compensation in that name be obtained for it. (2 Hagg. 317; 9 Wheat. 362; 6 N. Y. Legal Obs. 303.) Demurrage is only an extended freight or reward to the vessel in compensation of the earnings she is improperly made to lose.

The jurisdiction of the court on sea freights and demurrage resulting from such voyages, it appears to me, is indisputable, and the branch of the defence resting on exceptions to the jurisdiction is overruled.

I shall, accordingly, decree against the respondent or owner of the cargo damages by way of demurrage for the unnecessary detention of the vessel from the 26th of December to the 4th of January.

Various methods of computing these damages are referred to and adopted by the courts. (Anne Catharine, 6 Rob. 10; Holt, 338, § 28; Abbott, 304; 6 N. Y. Legal Obs. 303.) The usual earnings of the vessel in her regular course of employ is, perhaps, one method as much entitled to approval as others frequently adopted. At average voyages of from fifteen to eighteen days, the vessel was earning at the time about $10 per day. No doubt that is a low estimate of her worth to the owners. But it is as safe a criterion to guide the judgment of the court in awarding damages, as the opinion of witnesses to her worth in market by the month or day. It belonged to the libellants to make the matter certain, or supply a method of computation by which the court could ascertain the damages with reasonable satisfaction. Upon that basis, her detention would deprive

N. Y. Supreme Court.-Heyward and others v. The Mayor, &c., of New-York.

her of earning, as then fitted out, manned and provisioned, from $10 to $12 per day, I shall allow for the nine days' detention $100. Decree for $100 damages and costs.

This cause was carried to the Circuit Court by appeal. The appeal, however, was abandoned, and the cause was settled without an argument.

N. V. Supreme Court.

[May General Term, 1850.]

Before EDMONDS, EDWARDS, and MITCHELL, Justices.

WILLIAM C. HEYWARD and others v. THE MAYOR, &c., OF NewYORK.

PRIVATE PROPERTY TAKEN FOR PUBLIC USE BY A MUNICIPAL CORPORATION.

Where private property is taken for a public use by a municipal corporation of varied powers and duties, in the exercise of the right of eminent domain, delegated by the state, in a proper case, and the estate which the corporation is authorized to take is a fee simple absolute, for which full compensation is made, the property does not revert to the owner in case the public use is discontinued.

Property taken by such a corporation for an Alms-house establishment is not subject to the same rule as that which applies to land taken for a road by a turnpike company.

The facts sufficiently appear in the opinion.

Moore and Havens, for the plaintiffs.

H. E. Davies, for the defendants.

By the Court. EDWARDS, J.-In the year 1818, the defendants in the suit were seised and possessed of certain lands and premises, situated in the then ninth ward of the city, which were used and occupied for an Alms-House estalishment. At that time the wants of the city were supposed to require that the establishment should be enlarged, and that lands lying contiguous thereto should be taken for that purpose. In reference to this supposed necessity, a memorial was presented to the legislature, and on the 21st of April, 1818, an act was passed authorizing the defendants to take possession of the said lands, on paying the value thereof, to be assessed in the manner directed in a previous act, passed March 29th, 1816; and it was provided that on such payment, the defendants should become seised of the said lands in fee simple absolute. After the passage of this act, and on the 19th of May, 1819, the commissioners appointed under the act made their final report, by which they assessed the value of

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