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LIEN ON CARGO FOR FREIGHT AND
DEMURRAGE.

Several important questions have arisen, within a short period, both in this country and the United States, as to a ship owner's lien for freight and demurrage, and a recent case in the common pleas, Le Blanch v. Wilson, 28 L. T. Rep. N. S. 514, and a libel in admiralty, The Hyperion's Cargo, Am. L. Rev., vol. 7, p. 457, present some features which recall the general question. In Le Blanch v. Wilson, a direction of Mr. Justice Brett, in an action for demurrage caused by the detention of a ship and other expenses, that a master could not land his cargo and keep his lien, was considered, and it was held that such a direction was insufficient, as the cargo might, under certain circumstances, be landed without loss of lien. The question considered in The Hyperion's Cargo was whether a ship owner, whose ship was delayed by a lack of cars to unload the cargo, could libel the cargo in admiralty for demurrage. In this case Justice Lowther reflects somewhat harshly upon our English courts. He lays down as a principle, recognized by Pardessus and Valin-the latter says that a contrary principle would be absurdthat the law merchant considers that the master contracts rather with the merchandise than with the shipper, and that he has his privilege for the freight even against the true owner of the goods though they had been stolen. Then the learned judge proceeds: “I quote this example to show that the privilege does not depend on any doctrine of agency, as well as to fortify my opinion that the merchandise is liable for whatever the shipper is liable for. When the common law of England was modified by the introduction of many rules from the law merchant, it had no process for enforcing this reciprocal privilege of the ship and the goods, and had succeeded in repressing the only court that had the requisite modes of action; and was, therefore, obliged to say that it could not recognize the maxim, even when embodied in express contract, as it usually is in English charter-parties. From the time of those decisions to that of Gray v. Carr, the history of this question in the courts of common law in England has been that of a struggle between shipowners to create liens by stipulation, especially liens for demurrage, and of the courts to narrow the stipulation by construction. In nearly all those cases the obvious intent of the parties has been disregarded, and a remedy refused for a violated right. In this country the courts of admiralty have retained their proper jurisdiction, and can enforce the privilege by which ever party their action may be evoked."

If these views were adopted by our courts, it is beyond doubt that they would not have to consider the troublesome question of the creation and preservation of the ship owner's lien. Cargo can be proceeded against in admiralty for freight, and, in the United States it has been frequently libeled for average contribution. A, doubt is noticed in a note to Williams and Bruce on Admiralty Practice (page 194), whether the maritime lien on cargo for freight can be enforced if the cargo ceases to appertain to the owner whose property it was at the time of the creation of the lien. The learned authors appear to think that it can, unless the cargo had been sold in market overt, a view which agrees with what is laid down by Pardessus and Valin. The judgment of Baron Clesby in Gray v. Carr, 25 L. T. Rep. N. S. 215, in our opinion shows an extreme regard for artificial distinction. Whatever signification

may be attached in the minds of merchants to the word "demurrage," it is, in its nature, as closely analogous to freight as any thing can be, and if an illustration of the narrowness of our common law were re

quired, the following passage shows it: "As regards the claim for lien in respect of demurrage, I do not see how there can be any doubt about its existing under the charter-party. It appears clear to me that whether the demurrage days are occupied in the loading of the ship or in the discharge of it, the charterer is equally discharged from personal liability as soon as a sufficient cargo is loaded, and that the claim of the owner in re. spect of it exists only by virtue of the lien which is given by agreement." We are not about to discuss Gray v. Carr, for undoubtedly the charter-party in that case was somewhat precise in its terms, but it may be taken to go to this extent, that if, by default of a charterer, the ship is delayed beyond the lay days contracted to be paid for, the ship owner has no lien for the damages sustained. He cannot proceed in admiralty where undoubtedly different principles would prevail, and if he brings his action he is pinned to the agreement. The opinion of Mr. Justice Wiles was evidently in favor of giving the ship owner a remedy, for in Meyerstein v. Barber, 15 L. T. Rep N. S. 355, he said: "What would have been the state of things if the Acestus had arrived in the port of London and had found no person ready to take delivery of the goods or to pay the freight? What would have been the master's duty? . . . According to our laws he might have kept the goods on board the vessel on demurrage, at all events a reasonable time." It is quite obvious that this equitable principle should apply and be added to charter-parties unless by their terms it is expressly noticed and made inapplicable. It is also clear that the best tribunal to dispose of such questions is the court of admiralty, and it is to be hoped that under a more enlightened jurisprudence difficulties of the kind referred to may be got rid of, and a maritime lien be held to attach for demurrage.-Law Times.

ELOQUENCE IN THE JUSTICE'S COURT.

If the following veritable and unexaggerated report can be of no other use, it may serve to illustrate the varied experience of that class of the profession which is daily becoming smaller-country attorneys:

It is the ordinary fate of forensic eloquence to be spent within a narrow sphere and upon a few auditors. The court-house can hardly be called a popular arena, and its finest displays of logic and oratory are heard by few and are soon forgotten. There is a class of this eloquence which, like the poet's flowers, is often fated to blush unseen, because its field is circumscribed and few are found ready to do it justice by an adequate report of its gushing and inspiring passages. We refer more particularly to those exhibitions which are occasionally witnessed in the presence of a country justice, upon the trial of some issue in a quarrel between two neighbors, or in settling that proverbial point of difficulty in all questions of personal assaults, "which struck first?" To one who has been so fortunate as to have lived in the country, and to have ever attended a justice's court of a Saturday afternoon, it would not be difficult to recall examples of this cropping out of eloquence which is, occasionally, witnessed there, especially when either or both parties act as their own counselors and advocates.

The scene of our early triumphs and defeats in a struggle to be a lawyer was in a retired country village, where the first lesson to be learned was not to despise a day of small things, since it was rare that a client disturbed the quiet seclusion of our office, and we only occasionally had an opportunity to try our hand in playing the advocate for a live client. This was generally before a plain, intelligent magistrate, who presided on such occasions with becoming dignity, and generally decided his causes aright, especially when our client happened to be the winning party. He rarely gave reasons for his judgments, and, as it was not to be supposed that one man would sue another unless he had a good cause of action, the presumptions were generally in favor of the plaintiff, and the burden of proof was, therefore, properly thrown upon the defendant.

Among our patrons was a humble but worthy boot manufacturer, who had made a contract with a workman in a neighboring village, out of which grew a The controversy which resulted in a suit at law. amount claimed by our client, if we rightly recollect, was some $15, while the defendant insisted that he owed but about half that sum.

The defendant was a man of whom we had often heard, but had never seen till we met him before our worthy magistrate by whom this formidable issue was to be determined. He had a fame for eloquence in all the neighborhood, since, though he worked during the week in pegging and sewing shoes, he preached universal salvation in the broadest sense, on Sunday, as often as he could get a clerical engagement. His rhetoric was, if possible, more startling and comprehensive than his theological dogmas, though his average hearers were not always able to distinguish between what was doctrine and the illustrations by which he enforced it.

A man of such distinguished qualities could not, of course, think of employing counsel, and accordingly managed his own cause.

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Having read our writ and put in our evidence, the defendant arose, and in the blandest manner possible addressed the justice with, "may it please your majesty." The magistrate supposing it was an inadvertence, and being unwilling to embarrass him, took no notice of the supposed slip of the tongue. Pretty soon, however, the same expression was repeated, when the justice beginning to take in the humor of the thing, remarked that "we had no such animals in this country." Then said the defendant with entire self-possession, "May it please your excellency." "You are out there again," replied the justice, when the defendant, taking a new start, addressed him as, 'My dear Fellow," and went on to say, immediately, "had I made as much money out of the plaintiff as he pretends I have, I should have been richer than the mines of Golgotha." "Never heard of them mines," said the justice. But the defendant, in nowise disconcerted, continued his address in the same style for half an hour, not forgetting the constitution what our fathers fought, bled and died for, and the Bird of Freedom, in connection with the quality of the work he had expended upon the plaintiff's wares. The argument seemed to be an effective one in convincing the magistrate, as, without waiting for a reply by the plaintiff's counsel, he proceeded at once to give judgment in favor of the plaintiff for all he had claimed. Being one of our earliest successes in the forensic field,

we enjoyed it with a corresponding relish till we were afterward told, that from that day, whenever our antagonist was urging his favorite and sole theological dogma, he was careful to modify it so far as to have but a small chance for either the plaintiff in that unfortunate lawsuit, or the attorney who managed the case, or the magistrate who rendered judgment against him. If, however, we were instrumental in doing pecuniary injustice to our classical antagonist, we hope to have made some expiation by the tribute we have paid to the character of his forensic eloquence.

WOOD v. LEADBITTER IN NEW YORK.

The famous case of Wood v. Leadbitter, 13 M. & W. 838, decided that a right to come and remain for a certain time on the land of another can be granted only by deed; and that a parol license to do so, though money be paid for it, is revocable at any time and without paying back the money. In substance, the courts of the United States have, as we explained on a former occasion, followed the rule of English law. Therefore, it may be taken that the proprietor of a racestand, theater, or the like place, may, according to the common law of the States, eject a visitor, subject, perhaps, according to the rather illogical ruling of certain American judges, to the loss of that right after the performance has commenced. We are consequently amused and not a little surprised to find that the legislature of the State of New York has enacted that "no citizen of the State shall, by reason of race, color, or previous condition of servitude, be excepted or excluded from the full and equal enjoyment of any accommodation, advantage, facility, or privilege furnished by licensed owners, managers, or lessees of theaters or other places of amusement." The words 'equal enjoyment" are used, so that it cannot be argued that the man of color is to stand in a better position before the law than the white man. How, then, if a manager revokes the license of a full-blooded African, but does not state the reason for ejectment, from the stalls of a theater, is the man of color to The case avail himself of the help of the statute? would be yet more hopeless where the color of the Our able contemporary, the party was doubtful. ALBANY LAW JOURNAL, is utterly at a loss to construe the act, and evidently considers it a cheap bribe to win the sympathies of the dark race. -Law Journal.

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THE FOLLOWING CONFESSION of judicial bewilderment concludes the opinion in Manice v. Manice, 1 Lans. 380: "I think it right to say in conclusion, that this will was evidently drawn by an intelligent lawyer, who had read the Revised Statutes and knew the meaning of words, for a persistent client, who was determined to have his own way by paying for it; and though the examination of the questions relating to the sixteenth clause of the will has cost me some labor, yet I have the charity to wish, if the lawyer who penned and worded the sixteenth clause of this will should ever pen or word another like it, that it may never be his judicial duty to say whether it, or any part of it, is valid under or by the Revised Statutes." It is difficult to adjust the compliments in that sentence, and, from the revisors down, whoever should attempt to pluck his own would be scratched in the process.

NOTES.

The Session Laws of New York for 1873 have been issued this year nearly two months earlier than in many preceding years. This is due to the promptness of the Secretary of State in preparing the acts for publication and to the energy and enterprise' of Messrs. Weed, Parsons & Co., the printers. A notable feature of the laws for this year is, that instead of the large type and small page, and the two volumes of other years, we have a large page, and small, though clear type, both uniform with Edmonds' Statutes at Large, and, as a result, one volume only. It is sometimes well to " make the most of a thing," but the Session Laws are not of these "things," and will be found much more convenient and desirable in the compact, handsome volume of this year than in the sprawling volumes of the past.

The Chicago Legal News says that "Miss Susan B. Anthony refuses to pay a dollar of the fine or cost inflicted upon her by Judge Hunt, and is waiting impatiently to see what the people of the United States will do with her." Miss Susan has been waiting impatiently for that these many years, but "the people of the United States" don't seem to mind it much.

The "General Laws of the State of New York," for 1873, were published by Weed, Parsons & Co., in a small, shapely volume some two weeks ago. This is the third year that this firm has published the General Laws in a uniform series. For all practical purposes this edition of the laws is as useful to the lawyer as the larger and more expensive "Session Laws." Nothing is omitted save the purely local laws, which, by the general practitioner, are not often needed.

FOREIGN NOTES

Capital punishment has been abolished in Khiva.A decree has been promulgated at Rio de Janeiro, declaring protestant marriages indissoluble, unless declared otherwise by competent legal tribunals. The International Patent Rights Congress is in session at Vienna. One of its first acts was to resolve that the common protection of inventors should be guarantied by the laws of all civilized countries. -The Jesuits

who were ordered to leave Mexico, having appealed to the courts against the decree of expulsion, the chief justice of the supreme court has pronounced a decision in their favor, granting them the protection by the laws. -In England, at a recent examination of candidates for admission to the roll of attorneys and solicitors of the superior courts at Trinity Term, 1873, 228 candidates were examined, 199 of whom passed, and 29 were postponed. -The death of Lord Westbury has caused an interruption to the proceedings of the European Society Arbitration. The Queen has appointed Henry Cadogan Rothery, Esq., Registrar of the High Court of Admiralty, agent of Great Britain for the settlement of the fisheries question between the Canadian Government and the United States. A London telegram, in announcing the changes in the British Ministry, says: "It is probable that Sir John Duke Coleridge will be appointed Master of the Rolls; Sir George Jessel, Attorney-General, and Mr. Henry James, Solicitor-General.”— It is the intention of the English Government to revise the whole system of the Irish constabulary, to reduce the force, and to impose

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A report is in circulation to the effect that Mr. Justice Swayne is to be appointed chief justice of the United States. Doubtful.

The new judge of the supreme court of AlabamaHon. Robert C. Bickell-was in early life a typesetter.

The following appointments are announced: Le Roy Brown, United States marshal for the southern district of Massachusetts; John B. Stickney, United States attorney for the northern district of Florida, vice Knight, resigned.

The liberal republicans of Ohio have nominated Seraphine Meyer, of Stark county, for attorney-general, and D. B. Ewing, of Fairfield, and D. W. Lovden, of Brown county, for judges of the supreme court of that State.

The Honolulu Gazette of June 14th, says: Mr. William P. Ragsdale, who has been living for three years at Hilo, practicing law, has become a confirmed leper, and was conveyed to Molokai the last trip of the steamer. During the first ten days of June the disease developed very rapidly in him, and he has become one of the saddest cases now in the hospital. As soon as he found that the disease was rapidly developing he acted with noble courage, made up his mind to separate himself from his family, and remove to Molokai.

On Saturday last Mr. Snow, territorial attorney-general of Utah, moved before Judge Emerson for an order of the court for the September term. Judge Emerson asked United States Attorney Cary if he wished to have the grand jury. The latter replied that as a territorial court had already intimated that no jury could be legally impaneled under existing laws he did not wish to go through the farce of a criminal examination or trial to have it set aside immediately thereafter. The court then held that as a territorial legislature had taken the subject from the court and given it to the clerk, he had nothing to do with it.

AN ACTION was commenced for fraud in the sale of a store and lot upon which the same is located. Defendant set up by way of counter-claim fraud on plaintiff's part in the sale of a farm, which defendant took of plaintiff for the store. Plaintiff demurred that it was not a defense or counter-claim. The Judge, a bright and facetious one in western New York, decided the case in "manner following:"

"The action's this: two jockies by mere lying
Swap horses, and each rascal cheats his brother;
One sues for fraud, but number two replying
By counter-claim makes answer your another.'
"Tis dog eat dog. Great judges differ trying
Whether one suit or two shall end the bother;
The knaves cut one another's throats. Decreed,
One funeral's all that both the corpses need."

The Albany Law Journal.

ALBANY, AUGUST 23, 1873.

BELLIGERENT AND SOVEREIGN RIGHTS IN RELATION TO NEUTRALS.*

Every independent State is entitled to the exclusive power of legislation and jurisdiction, in respect to the personal rights and civil status and condition of its citizens, and in respect to all real and personal property situated within its territory. It has, also, an equal right with others to the sovereignty of the ocean which is the common property of all, in order that it may secure its uninterrupted use for every purpose for which it may be properly made subservient. Its vessels at sea have, or ought to have, the same territorial immunity which they would possess within the limits of the State.

Under any circumstances, therefore, to allow any two communities, by placing themselves in hostile array to one another, to affect the independent action of other countries, in a domain common to all, by creating for all other nations new duties and obligations, arresting the commerce and deranging the industry of the whole world, is repugnant to natural right. All the pretense which a belligerent can have to interfere with the unrestricted use of the ocean by neutrals, arises from considerations of self-defense, or from the right to prevent acts, which, in their result, may tend to the benefit of the enemy. On every consideration, therefore, of natural right, if the usage of nations does permit concessions to belligerents from neutrals, they should be restricted to what is fairly required, in order to prevent any interference by third parties, in influencing the decision of the controversy. A recent English writer observes: "The right of the belligerent imposes a duty upon the neutral; but the right of the neutral to trade with foreign countries imposes a corresponding duty upon the belligerent, to be so careful and observant of the law, that he injure not the commerce of the neutral beyond the limit of the positive or conventional law." (H. B. Deane, the Law of Blockade, p. 2.)

It is

The great revolution in favor of neutral rights was effected at the commencement of the Crimean war, when the obnoxious pretensions of England were abandoned as the consideration for additional concessions by France in favor of neutral commerce. quite evident that, had they, as co-belligerents, each maintained its own peculiar principles of maritime law, neutral commerce must have ceased altogether. Neutral property, which England would not have condemned for being found in an enemy's vessel, would have been good prize to the French cruisers; while

From the argument of Mr. William Beach Lawrence before the mixed commission of British and American claims, in the case of "The Circassian."

the neutral ship, whose flag was a protection against France, would have been subject to search by English officers for enemy's property, the mere suspicion of having which on board might have induced the sending of her into an English port, and thus breaking up a voyage, for which any allowance that might have been made either for freight or damages would have been, as it always is in such cases, a very inadequate compensation.

The respective powers, also, announced that it was not their intention to issue letters of marque during the war. Other relaxations were introduced by all the belligerents, the effect of which, with the exception of preventing a direct intercourse with the enemy's vessels to one another's ports, was that the war scarcely interrupted commerce, such as it had existed in peace.

The rules established by mutual arrangement at the commencement of the war were embodied in the "Declaration" of Paris of 16th of April, 1856, in which, besides declaring enemy's property free on board of neutral vessels, and neutral property on board of enemy's vessels, with the exception, in both cases, of contraband, which it unfortunately did not define, provided that a blockade, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. And it announced privateering to be abolished. These rules have since been generally adopted in Europe, if not extended in their operation. In the late war between Germany and France, the former applied the principle of immunity of private property on the ocean to its entire exemption seizure, without regard to reciprocity, while France adhered to the Declaration of Paris of 1856.

The United States, who had previously adopted, in various treaties, the other principles of the Declaration of Paris, in declining to accede to the privateering clause, proposed to go beyond it, and accord immunity in all cases to private property at sea, and they likewise subsequently insisted on the abrogation of all commercial blockades.

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While, in the early part of the present century," says an eminent American jurist, whom we shall hereafter name, "the political department of the American government was engaged in steadily combatting the overstrained constructions of the laws of maritime war, set up by the courts and publicists of England, it is remarkable that not a few of the most exceptionable of those constructions were at the same time being transported one by one into our own jurisprudence by the judicial department of our government, with a prevailing tendency to exaggerate the rights of prize in the interest of captors, that is, of maritime depredation."

For the decisions, as we shall have occasion to see, rendered during the war of secession, the courts not only applied the most rigorous rules of Sir William Scott during the wars of the French revolution,

unmodified by the adjudications of Lord Kingsdown, in the privy council, during the Crimean war, but the executive and legislative departments of the government attempted, not merely against the insurgents, but against neutral powers, to blend the rights both of belligerency and sovereignty, claiming to be considered belligerents themselves, while they maintained that the seceding States should be treated, not as belligerents, but as rebels who could claim no rights of war, and whose ports, in possession of the insurgents, could be closed, even against foreign trade, by the statutes of Congress.

It is no small aggravation of the injuries to which belligerent pretensions subject third parties, that the belligerents furthermore possess the exclusive power of deciding in their own tribunals, on the infraction of the rules established in derogation of neutral rights, courts of admiralty, either permanent or appointed during hostilities, exist in all maritime States. Indeed, there is generally in treaties an article to the effect that "in all cases the established courts for prize causes in the country to which the prizes may be conducted shall alone take cognizance of them." These tribunals are anomalies in jurisprudence. Deriving their authority from one nation, they pass irrevocably on the title to the property belonging to the citizens or subjects of another. While they depend entirely on the sovereign of the belligerent, they pronounce on the rights of neutrals, who have no other appeal from the admiralty courts in the last resort, than to the justice of the sovereign of the captor, through the diplomatic interposition of their own government. Reversing, also, the ordinary rules of law, the onus is placed on the neutral to prove his exemption from capture.

It is the belligerent who adjudicates in his prize court, whether the neutral has violated the law of nations and at his discretion confiscates the property of the citizen of a foreign State. The same court, also, possesses the power of relieving the captor, even in case of illegal arrest, from all responsibility, on the ground of what is called, in such cases, "probable cause."

It is true that Lord Stowell claimed that with him, in pronouncing judgment, the law had no locality; and this was said in the celebrated case of the Swedish convoy, where the claims of belligerency were exercised to an extent which, however asserted in theory, had never before been practically applied; even the presence of a national ship of war and the pledged honor of the royal commander not being accepted as a substitute for the visitation and search of merchant vessels. According to Lord Stowell, it is the duty of the person sitting in the English court of admiralty, to determine the question exactly as he would determine the same question if sitting at Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden under the same circumstances; yet this illustrious judge has recog

nized the influence of the instructions of his government, even over tribunals professedly acting as the exponent of the law of nations.

In England, even, where the judicial forms are more adhered to than on the continent of Europe, the sovereign always has a right to interpose effectively in prize ases in any part of the proceedings, and to arrest them before condemnation. In France, the most enlightened of her legislators advocated making all such questions matters of administration. It is true that in the constitutional powers of the supreme court of the United States, there is supposed to be a greater guaranty for neutrals than in ordinary prize courts; yet it is competent to the executive government to make, without, however, having any con| stitutional power to control the result, "suggestions" for the disposition of cases before it in which international considerations may be involved.

So sensible were the founders of the American institutions of the influence of prejudice in local tribunals, that they deemed it necessary to provide that where citizens of another State were sued by a citizen of the State where the court was established, he might remove the cause to a federal tribunal; and recent legislation has afforded additional facilities for carrying out the objects of the constitution. As regards subjects of foreign nations and our own citizens, the constitution in ordinary cases has gone as far as seems practicable, to insure impartiality, by giving the foreigner the benefit of the national tribunals; but this board cannot but be sensible that the relations of the claimants to the original defendants in our prize courts, regarding especially the peculiar nature of the recent contest, entitle them here to the benefit of any doubts which may affect the validity of prior decisions on their cases, while the superior opportunities enjoyed by the captors, of establishing their claims in the tribunals of their own country, should exclude any further presumptions in their behalf to the prejudice of their victims. If the onus be on the neutral in the prize courts, it should not be so in a tribunal created for the very purpose of correcting its errors.

It is not until after the neutral has had recourse to all the remedies professed to be open to him in the courts of the belligerent that his government is justified in making his case matter for diplomatic representation. In such event refusal to entertain the complaint and to afford redress would authorize a neutral government to resort to reprisals, a remedy which seldom fails to result in war. To this extremity, however, it would not be justifiable to proceed till all means of amicable arrangement had been exhausted. A mode adopted, especially in recent times, of adjusting such difficulties, has been the arbitrament of a foreign sovereign, or of commissioners named by the respective parties, with whom it sometimes united an eminent jurist of another country, chosen by mutual consent or on a nomination of a friendly State. The history of the United States affords examples of both the modes

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