Jewett v. Banning.

alone with her. The circumstances proved would have warranted the inference that the defendant seized and wrenched her arm. But he was her brother: and it was neither impos sible nor very improbable that the injury was accidental or unintentional. Indeed, such an hypothesis would sooner be indulged than that a brother, without any ill-will towards her, had intentionally inflicted violence on her person. But add to the circumstances the fact that there existed ill-feeling on the part of the defendant towards the plaintiff and the case assumes a different aspect. Whereas, before, the jury may have been bewildered by the absence of motive to do an intentional wrong, now it is made to appear. The ill-will did not tend to prove the act of seizure of the arm, but it aided to determine its character and legal effect.

Evidence had been given of an interview at the plaintiff's house, some two months after the alleged battery, between the plaintiff and the defendant, in which she charged upon him the commission of the injury. The evidence left some doubt whether the charge being made and denied was repeated on the same or another occasion, and in the presence of different parties. Two witnesses on the part of the plaintiff testified to the charge being made, to which the defendant gave no denial. Two other witnesses on the part of the defendant testified to the making of the charge, and that it was followed by an instant and explicit denial by the defendant. In speaking of the occurrence at the plaintiff's house, the judge instructed the jury that if the plaintiff charged the defendant on that occasion with committing the assault, and he at the same time denied it, then it furnished no evidence against him; but if he remained silent when so charged, the jury might regard it as an admission that he was guilty, or give it such weight as they thonght it entitled to; that there were some doubts from the evidence, whether the charge, after it had been once made and denied, was repeated on that occasion; and if it was repeated, whether the defendant then remained silent. To these instructions no exception was taken. The judge then explained the nature and principles of such evidence, and stated to the jury on this

Jewett Banuing.

part of the case, that they would not probably conclude that the defendant, after he had once emphatically denied the accusation, was called upon to deny it again if repeated; but the court would leave it to the jury to give such weight to his silence when the charge was repeated, if it was repeated, as. they thought it entitled to under the rules which had been stated as to the effect of remaining silent. To this part of the charge the defendant excepted. The exception can only raise the question, whether in view of the evidence in the case, it was error to leave it to the jury to give such weight to the defendant's silence, if they found the charge to have been repeated after once being emphatically denied, as they thought it entitled to under the rules which had been stated as to the effect of remaining silent. This was not error, unless the judge was called upon to charge, as a legal proposition, under the proof in the case, that the defendant's silence, on a repetition of the charge, after having once denied it, furnished no evidence against him. Undoubtedly, if a party, in a given interview and conversation, is repeatedly charged with the commission of an act, and he denies it unequivocally once, he is not called upon to repeat the denial in order to avoid the inference of an admission of its truth against him; but if the charge be made at distinct times and under different circumstances, and in the presence of different persons, though he may have denied it at one time, his silence under accusation at another time, and under other circumstances, is a proper circumstance to be weighed by the jury. At least, the court is not called upon to instruct the jury, as matter of law, that they are to infer nothing against him from his silence. In this case, the evidence would have justified the jury in finding that the charge was made and denied in the presence of Warner and Spencer, about the commencement of the appraisal, and some three-quarters of an hour before Tripp and Jewett came in, and that the conversation had ceased before the latter arrived; and that after the arrival of Tripp and Jewett, the charge was repeated in their presence. As a matter of fact, therefore, there were two distinct conversations, in the presence of different persons and

Nelson v. Belmont.

under different circumstances, though on the same day, in which the charge was made. I am very clear, that had the judge instructed the jury, as matter of law, that they were to give no weight to the silence of the defendant when the charge was made in the presence of Tripp and Jewett, because it had been fully and distinctly denied in a prior conversation, and substantially a different interview, that it would have been

error.

The judgment of the Supreme Court should be affirmed.

SELDEN, J., expressed no opinion; all the other judges concurring,

Judgment affirmed.

NELSON v. BELMONT.

The liability to general average continues until the property has been com pletely separated from the rest of the cargo and from the whole adventure, so as to leave no community of interest remaining.

If the enterprise is not abandoned, and the property although separate.: from the rest, is still under the control of the master of the vessel and liable to be taken again on board for the purpose of prosecuting the voyage, the common interest remains and whatever is done for its protection is done at the common expense.

The cargo of a vessel being on' fire the master transferred a quantity of specie to another ship which by his request convoyed him into a port of distress. He there incurred expenses in putting out the fire and reperiring damages to the vessel, the specie being meantime deposited in a bank. The damages were found to be such that the cargo was sold and the voyage abandoned: Held, that the specie was liable in general average for the expenses at the port of listress.

APPEAL from the Superior Court of the city of New York. The action was against the defendant, as the owner of certain specie for its proportion on general average of losses, expenses and damages incurred by the vessel on which it was shipped and the rest of the cargo. Upon the trial these facts were

Nelson v. Belmont.

proved: The ship Galena sailed from New Orleans for Havre, having on board a cargo of cotton, and $30,853 in specie belonging to the defendant. On the afternoon of July 23d, 1853, the vessel was struck with lightning in the Gulf Stream, and was found to be on fire in the hold. After attempting to extinguish it by pouring on water and to stifle it by excluding air, a Danish vessel in sight was signalized and visited and the passengers and their baggage transferred to her, which was completed by 11 o'clock at night. The captain of the Galena then boarded the Danish vessel, and engaged her to keep company during the night, that if the fire was not extinguished he might board her again in the morning. The fire appeared to gain, and at daylight the captain concluded that he could not put it out and must make a port of distress. An arrangement was then made with the Danish captain oy which he was to take the specie on board his vessel and accompany the Galena into Charleston. This was done because he had the passengers on board and as a protection to the crew in case they had to leave the ship if the fire burst out. The specie was transferred because if the fire broke out it might be too late to remove it from the Galena. Both vessels bore away for Charleston, which they reached on the 26th. The fire, meantime, did not appear to decrease. The fire engines of the city poured water into the Galena until she filled and sank to the upper deck. The cotton was covered with water and absorbed a good deal. Very little of it had been previously injured. The captain, after discovering at Charleston the extent of the damage to the ship and cargo, determined to abandon the voyage. He sold the cargo there and remitted the proceeds. While in the harbor and before reaching the wharf he got the specie from the Danish vessel and deposited it in bank.

The plaintiff had a verdict subject to the opinion of the court at general term. It was there determined that the specie was liable to contribute in general average to the amount paid for the services of the Danish brig, the expenses at Charleston in sinking and raising the vessel, repairs and damage to the cotton from the water, &c. Upon an adjustment the proportion due by the

Nelson v. Belmont.

specie was found to be $13,884, for which sum judgment was rendered for the plaintiff. The defendant having taken proper exceptions appealed to this court.

Charles O'Conor, for the appellant.

William M. Evarts, for the respondent.

SELDEN, J. No objection was made by the counsel upon the argument, to the principles upon which the general average was adjusted in this case, provided the specie was liable to contribute to such average for the expenses and loss which occurred after it was placed on board the Danish brig. Whether it was so liable, therefore, is the only question to be considered.

General average losses arise, either from voluntary sacrifices made, or extraordinary expenses incurred, for the joint benefit of the ship and cargo. The property which contributes, is that which is saved from the peril, together with that which is sacrificed for the preservation of the rest. The loss, however, does not in all cases fall upon the whole of this property. ARNOULD says: "All which is ultimately saved out of the whole adventure, i. e., ship, freight and cargo, contributes to make good the general average loss, provided it had been actually at risk at the time such loss was incurred; but not otherwise, because, if not at risk at the time of. the loss, it was not saved thereby." (2 Arnould on Ins., Perkins ed., § 338.) PHILLIPS uses similar language. He says: "Goods or any interest are not liable to contribute for any general average, or expenses incurred subsequently to their ceasing to be at risk." (2 Phillips on Ins., 3d ed., § 1407.)

The defendant's position here is that the specie, when once placed on board the Danish brig, being entirely secure from the peril which threatened the Galena and her cargo, was, under the rule laid down by ARNOULD and PHILLIPS, exempted from contribution for subsequent losses.

In determining this question, it will be necessary to recur to the principle upon which general average is based. That