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U. S. District Court.-Sission v. Stevenson.

upon proof of a valid existing claim against, or lien upon the vessel for which she could have been taken by warrant of distress or attach


Second. The breach is sufficiently set forth in the complaint, because it sets up three distinct claims for wharfage, two claims arising in the port of New-York, and one claim arising in the port of Albany, all within tide waters.

Third. As to the lien for wharfage-1st. In Admiralty-Wharfage may be collected in the admiralty courts without reference to the local laws-and a lien in rem, exists against the vessel, the admiralty jurisdiction extending to tide waters. Gardner on Ship New-Jersey. 1 Peters' Adm'ty Decisions, p. 223 and 228. 2nd. By the Local Laws,-By charter of Albany, granted by Gov. Dougan, in reign of James II. all the profits, benefits and advantages that should or might accrue or arise at all times thereafter, for anchorage or to wharfage in the harbor, port or wharf of said city, are given to the said city of Albany, and in 5th Hill, p. 73, that charter is referred to and an action sustained on it-which is confirmed in 7 Hill.

2 Rev. Laws, p. 429, provide for a seizure and distress of the appurtenances of the vessel, for wharfage arising in New-York, and point out certain particulars on the part of the wharfinger, which are substantially averred in the complaint.

But as between the wharfinger and the defendant, the plaintiff is not bound to aver with particularity all the steps of the wharfinger, because it is not his business to litigate with the wharfinger claims which are liens, with all the technicality that the defendant's might have done. It is sufficient to aver that the wharfinger served notices on him, and made threat of seizure thereunder, and therefore that he was compelled to pay in order to relieve the vessel from the notified arrest-which facts are certainly breaches of the covenant of warranty.

Fourth. In any event the complaint sets up a cause of action, because it sets up that at the time of delivering the bill of sale by defendants to plaintiff, the defendant represented to, and agreed with the plaintiff that the vessel was free and clear from all claims and liens whatsoever, and sets up further the existence of the claims and liens at the time of the agreement, and consequently the falsity of the defendant's representations, and the payment by plaintiff of all liens and claims in order to avoid the arrest of his vessel, and waives the tort by claiming to recover the amount paid, as so much paid to the defend

ant's use.

INGRAHAM, J. I think the complaint in this case shows a good cause of action.

It sets out an agreement to warrant the title to the vessel, and that it was free from liens and incumbrances, that the plaintiff was obliged in consequence of threats of seizure for wharfage, alleged to be due, to pay moneys amounting to upwards of $100 for wharfage which was a lien upon the vessel.

U. S. District Court.-Sisson v. Stevenson.

The demurrer admits the facts, but the defendant contends that the law of this state only authorized a distress on goods, &c., on board of the vessel. This is so, but still the vessel was also liable, and might have been proceeded against in a different court. Whether the plaintiff is right in saying by warrant of distress or not, is immaterial. Under the present system of pleading those words are to be treated as surplusage. Any claim for which the vessel was liable, and might be seized, may be treated as cause of damage. Under such a covenant the question is not whether the defendant can make out a defence to the claim-but whether the complaint on its face, if the facts stated are proved, makes out a cause of action. I think there can be no doubt of this, and that the plaintiff is entitled to judgment.

Judgment for plaintiff on demurrer with costs.


House of Lords.

O'BRIEN V. REGINAM, MCMANUS v. REGINUM.-10th and 11th May, 1849.


Upon writ of error from the Court of Queen's Bench, Ireland, Held: 1st. That the statement in the caption that the commission had been executed by three commissioners, was not made uncertain by the further statement that the commission included others besides the three judges. 2d. That the plaintiffs in error were not entitled to a copy of the indictment and list of witnesses as of right—the 36 G. 3, c. 7, not extending to Ireland. 3d. That the levying war, &c., in Ireland, was treason under the 25 Edw. 3, c. 2, which was extended to Ireland by Poyning's acts. 4th. That the omission of the words "of death," in the allocatus why the court should not pronounce judgment, was immaterial.

Quære, whether, if the plaintiffs in error were entitled to a copy of the indictment and list of witnesses, the objection of non-delivery could be made the subject of a plea.

THE writs of error in these cases were brought to reverse the judgment of the Irish Court of Queen's Bench on a writ of error against the judgment pronounced against the appellants. The objections taken in the writs of error were, 1st. That by the caption of the indictment it did not appear that there was any jurisdiction in the judges before whom the prisoner was tried so to try and convict him. 2d. That a declaratory plea pleaded by the prisoner, claiming a right to the delivery of copies of the indictment and the jury panel and the list of witnesses, ten days before arraignment, was held to be bad on demurrer, and the demurrer to that plea was allowed. (25 Ed. 3, c. 32; 7 W. 3, c. 3; 7 Anne, c. 7; 36 G. 3, c. 7; 57 G. 3, c. 6; 11 and 12 Vict. c. 12.) 3d. That by the effect of Poyning's act, the statute of Eward 3d, regarding treason, was not extended to Ireland; and, 4th. That the allocatus in which the prisoner was asked what he had to say "why the court should not give judgment against him," was defective from the omission of the words "of death."

House of Lords.-OBrien and McManus v. Reginum.

Sir Fitzroy Kelly, Napier, and Sir Colman O'Lochlen, for Mr. O'Brien.

O'Callaghan, Seager, and McMahon, for Mr. McManus.

The Attorney General, the Irish Attorney General, Welsby, and Peacock, for the Crown.

The Lord Chancellor having stated that the learned judges were unanimously of opinion that the writs of error could not be supported, the attorney general was stopped, and the following question submitted to the judges-" Whether the plaintiffs in error had maintained the errors assigned?"

The judges having withdrawn, upon their return their opinion was read by

WILDE, Lord Chief Justice :-The first objection was founded on the facts disclosed in the caption, that the commission had been executed by three commissioners nominated for that purpose, acting under a commission directed to them and others. The judges were of opinion that the statement of the appointment was sufficient, and not made uncertain by the further statement that the commission included others besides the three judges. The second question involved two points :-1st. Whether a prisoner indicted for high treason was entitled as of right to a copy of the indictment and a list of the witnesses, ten days before trial; and, 2dly. Whether that objection was properly made the subject of a plea. They were of opinion that the plaintiffs in error were not so entitled, and it was therefore unnecessary to consider whether the objection of non-delivery could be made by a plea. The right was put on the provisions of the 56 G. 3, c. 7, which it was contended the 57 G. 3, c. 6, and 11 and 12 Vict. c. 12, extended to Ireland, but they were unanimously of opinion that the 36 G. 3, c. 7, was in no way operative in Ireland. The next objection that the counts of the indictment charging a levying of war, &c., in Ireland, did not contain any offence known to the law, also failed. The 25 Edw. 3, c. 32, which declared the offence there charged to be treason, was extended to Ireland by Poyning's acts. The next objection, which applied to the allocatus, also failed. The objection as to the challenges had been very properly abandoned in the argument.

The judges having agreed unanimously in their opinion,

The LORD CHANCELLOR moved that the judgment of the court below for the defendant in error should be affirmed.

Lords LYNDHURST, BROUGHAM and CAMPBELL having expressed their concurrence with the opinion of the judges, judgment was given for the defendants in error.

House of Lords.-Lievesey v. Lievesey.

LIEVESEY V. LIEVESEY.-23d April, 1849.


Where a testatrix had excluded from the bequest her daughter's eldest son, or such of her sons as by the death of an elder brother might become the elder son, the death of the eldest son after the testatrix did not affect the bequest, and the second son becoming the eldest before the youngest attained twenty-one, was excluded.

THE testatrix, Jane Worthington, by her will dated April, 1805, devised certain freehold estates, and made several especial bequests, and inter alia bequeathed a sum of ten guineas to the eldest son of her daughter, Eliza Lievesey, leaving him no larger sum, because he would have a handsome provision out of his father's and grandfather's estates. She then devised all the residue of her estate and effects, real or personal, to executors on trust, to pay one moiety to the children of her daughter Jane, to be equally divided amongst them when the youngest should attain twenty-one. But if any should die leaving lawful issue, such issue should take the share of the deceased parent, and if her daughter Jane should have no lawful issue, or such children die under 21, the moiety should go to the children of her daughter Eliza. The testatrix then directed the other moiety of her estates and effects to be paid to the children of her daughter Eliza, their heirs, &c., when the youngest should attain twenty-one, except her eldest son, or such of her sons as might by the death of an elder brother become the eldest son. The testatrix died in June, 1815, leaving her two daughters surviving, and the will was proved by her daughter Jane, sole surviving executrix. Eliza Lievesey had five children, the eldest of whom was a son, and attained twenty-one in 1817, and died without issue in 1827, whereupon the second son, James Worthington Lievesey, the present appellant, became the eldest son. The third child died under twenty-one, and the fourth and fifth were the respondents, Mary Carter Lievesey, a lunatic, and Harding Lievesey, who attained twenty-one in 1825, and 1830, respectively. The testatrix's other daughter, Jane, had two children. In Easter Term, 1822, a bill was filed to establish the will, and a reference was made to the Master. Several bills of revivor and supplement were made necessary in consequence of the death of some parties, the marriages of others, and the birth of children. On the hearing before the vice-chancellor, in 1842, his honor was of opinion that James Worthington Lievesey had become an eldest son, and was not entitled to take any share in the residuary estate, and that the moiety was divisible between Mary Carter Lievesey and Harding Lievesey, as tenants in common. An appeal from the decree was heard by Lord Chancellor Lyndhurst, in 1844, who, in July, 1846, dismissed it without costs. Whereupon this appeal was presented to reverse the former decree.

Rolt and Speed, for the appellant, contended that the eldest son

Duer on Marine Insurance.

was the eldest son at the death of the testatrix, and that the reason for the exclusion of the eldest son had not taken place, as the eldest son, Edmund, had come into most of the property soon after attaining twenty-one, and had given it by will to Mary Carter Lievesey, who ought, therefore, to be excluded from the moiety of the testatrix's estate.

Bethell and Stinton, for the respondents.

THE LORD CHANCELLOR said, that the words in the will were perfectly free from doubt, and no artificial rules of construction were required. It was clear that the person who was or should become an eldest son, was excluded from taking a share of the moiety of the residue. The appellant had become an eldest son by the death of his elder brother, before the youngest child attained twenty-one. The court would not introduce phrases to make a will perfect, after events had happened, on the presumption that the testatrix would have spoken differently if she had foreseen those events. The words of the exclusion were sufficient, and the appeal must be dismissed with




The Law and Practice of Marine Insurance, deduced from a critical examination of the adjudged cases, the nature and analogies of the subject, and the general usage of commercial nations. By JOHN DUER, LL. D., 2 vol. 8vo. New

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