Statement of the case.

thereof, then and there, to wit, on the day and year last aforesaid, at, etc., aforesaid, did by bill of sale transfer, convey and deliver the said steamboat Ella,' her fixtures and furniture, exclusively to Rodney C. Culley individually, whereby and by reason whereof, the said defendant in fact says, that the consideration of said note and the said guaranty sued on in this behalf, has wholly failed, and this he is ready to verify, wherefore, etc.

Replication and issue joined.

Defendant offered in evidence the following:

"BILL OF SALE.

"To all people to whom this present bill of sale shall come: We, Thomas Gaff and George W. Cochran and J. W. Gaff, owners of the steamboat 'Ella,' send greeting:

"Know ye, that we, the said Gaff, Cochran & Co., for and in consideration of the sum of seven thousand dollars in hand, and well and truly paid, at or before the ensealing and delivery of these presents by Rodney C. Culley, of Cairo, State of Illinois, the receipt whereof we do hereby acknowledge, and are therewith fully and entirely satisfied and contented, have granted, bargained and sold, and by these presents do grant, bargain and sell, unto the said Rodney C. Culley, the hull or body of the steamboat 'Ella,' together with all and singular, her engines, machinery, tackle, apparel and furniture, as she now lies at the port of Cairo, Illinois, and enrolled at the port of Memphis, the certificate of which enrollment is as follows, viz.: (said boat has not been enrolled in the name of present owners, for the reason that she has not been engaged in coasting trade since their ownership.)

"Enrollment in conformity to an act of the congress of the United States of America, entitled "An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same;" William Drake, of Memphis, Tenn., having taken and subscribed the oath required by the said act, and having sworn that he is a citizen of the United States, and sole owner of the ship or 33-44TH ILL.

Statement of the case.

vessel called the "Ella" of Memphis, whereof John F. Rule is at present master, and as he hath sworn, a citizen of the United States, and that the said ship or vessel was built at Elizabeth, Pa., in the year 1854, as appears by her last enrollment, No. 63, issued at the Port of St. Louis, on the 6th of August, 1863, and now surrendered on change of owners, and the said certificate of indorsement having certified that the said "ship or vessel, has one deck and no mast, and that her length is one hundred and fifty-three feet-inch; her breadth thirty feet, feet, -inch; her depth four feet inch, and that she measures one hundred and seven tons, and that she is a steamer," has a cabin on deck and plain head, and the said William Drake having agreed to the description and admeasurement above specified, and sufficient security having been given according to the said act, the said steamer 'Ella' has been duly enrolled at the port of Memphis.

"Given under my hand and seal of office, at the port of Memphis, this 18th day of December, in the year one thousand eight hundred and sixty-three.'

"To have and to hold the said granted and bargained steamboat and premises with the appurtenances, unto the said Rodney C. Culley, his heirs, executors, administrators or assigns, to his only proper use, benefit and behoof forever; and we, the said Gaff, Cochran & Co., do vouch ourselves to be true and lawful owners of the said steamboat 'Ella' and her appurtenances, and have full power, good right and lawful authority to dispose of the said steamboat and her appurtenances in the manner aforesaid. And furthermore, we, the said Thomas Gaff and George W. Cochran & Co., covenant and agree to warrant and defend the said steamboat 'Ella' and appurtenances against the lawful claims and demands of all persons whomsoever, unto the said Rodney C. Culley. That is to say, all lawful claims and demands of every nature, that accrued against said vessel prior to or on the twenty-third day of June, 1865, being the date upon which the sale of said vessel was consummated,

"In witness whereof, we, the vendors, have hereunto set our

Statement of the case.

hands and seals, this 23d day of June, in the year of our Lord,

one thousand eight hundred and sixty-five.

"Signed, sealed and delivered, in presence of

THOMAS A. NEWKIRK."

And also the deposition of George E. Lightner, who testified, that his knowledge in relation to the bill of sale was as follows: With the exception of the enrollment, it is in the handwriting of John C. Rankin; it was drawn by him soon after the 25th of June, 1865, at the instance of Rodney C. Culley, and brought to him by Culley; think that Musson was with Culley, and also Mr. Cochran; they were at my office at one time about the purchase; think this was the time, but am not positive; it may have been before this; I told them they must give me the last enrollment before they could get the bill of sale recorded and a new enrollment issued; this paper (bill of sale) was left with me by the parties with the request that I write to Memphis for a copy of enrollment; I did so; got a copy of the enrollment and inserted it; I do not recollect whether the paper, when left with me, was signed or not; do not recollect whether I delivered it to Culley, or sent it to Cochran or Mr. Edson at Cairo; I think it was signed, however, for the enrollment seems. to have been written after the stamps were affixed; it was as near as I can say, from my book, about the first or middle of August; I cannot say positively why the conveyance was made to Culley; I think there was some understanding to that effect between the parties, but my recollection is not clear as to this matter; I recollect that I was compelled to write two or three times to Memphis, and that the boat made several trips in charge of Culley, and had some trouble with the custom house, and, as agent for Gaff, Cochran & Co., here, I assisted in arranging temporary permits.

For the plaintiffs, Edson testified, that he knew the parties;

Statement of the case.

that he wrote the note and contract (set out in plea) or bill of sale of the boat to Musson & Culley; that the boat was delivered to Culley; thinks that Musson was in Chicago; never heard any thing of the abandonment of contract in relation to sale by plaintiffs; and (on cross-examination) was not present when the boat was delivered; saw Culley's hands on the boat afterward; does not know why the bill of sale afterward was made to Culley at St. Louis.

Green, witness for plaintiffs, testified, that he first talked with Musson & Culley, a few days before the execution of the contract above, in regard to selling them the boat, and that afterward the trade was closed with Culley, and the contract drawn up and signed by all the parties. He further testified, that he delivered the boat to Musson & Culley about the date of the contract and before the delivery of the notes.

The court gave the following instructions for the plaintiffs, to which defendant excepted:

"If the title to the boat in question passed by sale and delivery from plaintiffs to Musson & Culley, on the 23d day of June, 1865, if you find from the evidence such sale and delivery was made, and the contract by which the same passed was never abandoned or rescinded, the plaintiffs are entitled to recover in this suit if the material allegations in the declaration have been supported by the evidence."

"The court instructs the jury, that, under the issues in this case, it devolves upon the defendant to show by evidence an abandonment of the contract for the sale of the steamboat 'Ella' to J. W. Musson and R. C. Culley, if that fact is relied on as a defense to this action."

'Although, in the bill of sale of the boat 'Ella,' by plaintiffs, the same may have been conveyed to Rodney C. Culley, one of the purchasers, yet that fact does not relieve the defendant from proving an abandonment by plaintiffs of the contract for the sale of said boat. If the jury believe, from the evidence, that James W. Musson and R. C. Culley bought the steamboat "Ella' from plaintiffs, and the said boat was delivered to them,

Statement of the case.

or one of them, for both, and that said sale or contract was never abandoned by plaintiffs, and that the other material averments in the declaration have been proved or admitted by the pleadings, the verdict should be for the plaintiffs."

The court, at the instance of defendant, gave the following instructions:

"The court instructs the jury, that any material facts in defendant's plea, which are not denied by the plaintiffs' replication, are to be admitted."

"That the issue in this cause is, whether the plaintiffs abandoned the first contract set out in the second and third pleas of defendant; and, if you believe, from all the evidence in this cause, that the plaintiffs did abandon the said first agreement and sell the boat 'Ella' to Rodney C. Culley individually, you should find for the defendant."

And refused to give the following instructions:

"The court instructs the jury for the defendant, that, to transfer by sale an American vessel, so that the same can be used in navigating any of the rivers of the United States, the same must be transferred by bill of sale, or instrument of writing, containing and reciting therein the last certificate of registry or enrollment; and, unless you find, from the evidence in this case, that Gaff, Cochran & Co. did, by such bill of sale or instrument in writing, convey the boat mentioned in defendant's plea to the firm of Musson & Culley, you should find for the defendant."

"If the jury believe, from the evidence, that the boat named in the defendant's pleas was bargained and sold by the plaintiffs to the firm of Musson & Culley, to be used for the purpose of navigating the western rivers of the United States, and that plaintiffs never completed that contract, but did make a bill of sale of the steamboat to Rodney C. Culley only, and delivered the same to him, then your verdict should be for the defendant."