this soda is cited by the libelant, and, as I think, conclusively, to show that neither the whole loss, nor, indeed, any great part of it, took place during the 48 hours' time that the vessel was lying upon her beam ends. A small fraction of the amount of water necessary to dissolve all this soda, if it were in the hold at any one time, would have submerged nearly all of the cargo there; whereas, the fact that along the keelson the cargo was not injured, shows clearly that there could have been but a comparatively small amount of water in the hold at any one time. Four tiers of bags on each side of the keelson were unharmed; only the outer three tiers were more or less damaged. That the loss of the nitrate was gradual, and by a long-continued process, is further proved by the fact that the crankness of the bark, which arose only from the loss of nitrates, increased gradually up to the time she reached Hampton Roads.

These circumstances, it seems to me, indicate clearly enough the way in which the loss of the nitrate took place. When the bark was thrown upon her beam ends her leaks increased, as a consequence of the severe strain on her hull; and as the pumps were unable to reach the water along the port side while the ship lay in that position, the water accumulatad there until, at the turn of the bilge, it rose above the 14 or 16 inches space allowed by the dunnage. Lying in this position for 48 hours in a heavy gale and rolling badly, the nitrates in the bags upon the port side were rapidly dissolved, and the dunnage, which depended upon the bags to hold it in position, being thereby loosened, became wholly disarranged and broken down. The bags at the sides against the dunnage were but two tiers high, and thence towards the center were piled gradually higher. When the bark wore round and came upon her port tack, with heavy weather still continuing and much rolling of the ship, the accumulation of water at once passed from the port side to the starboard side, rising at once above the dunnage there also, and soon producing on that side the same results by dissolving the lower bags and throwing down the dunnage. In the severe weather and the high sea the pumps were not able to be worked so as at once to bring the accumulation of water that passed from the port to the starboard side down below the dunnage in the starboard bilges, and in this way the water lines on both sides, as observed by the witnesses, were probably formed. When the captain and others went down into the lower hold after the heavy weather had subsided, about the fifth of August, i. e., between two and three weeks after the vessel was thrown upon her beam ends, they found the dunnage along the washed-out spaces all disarranged and down on each side. They endeavored to replace it to some extent, but could not do so effectively. No lights could be taken into the hold for fear of an explosion. During the remainder of the voyage, therefore, there was, in effect, no side dunnage at all along the washed out spaces to serve as a protection for that part of the cargo against the water that usually runs along the bilges. Hence

the bags were constantly exposed to the action of water there, and were constantly dissolving and settling down. In the ordinary rolling of the ship nothing that the pumps could do would prevent this process from going on continually in some measure, and in rough weather the action of the water would be more rapid and destructive, and this would be still further increased by the increasing crankness of the vessel through the loss of cargo. I do not perceive any special difficulty in the fact testified to, that the greater loss was upon the starboard side; for the loss arose chiefly through the breaking down of the dunnage caused by the water taken in, that could not be reached by the pumps, in the gale of July 19th. If the bark afterwards sailed more on the port tack than on the starboard tack, the action of the water and consequent loss would be greater, because longer continued, on the starboard side.

In this way, therefore, there is no doubt, I think, that the severe gale of the nineteenth of July was the true cause of the loss. Had the side dunnage and the floor dunnage been securely fastened at the bilges, otherwise than by the bags themselves, comparatively little damage would probably have been done. If it was the custom with such cargoes to fasten the dunnage securely, then the neglect of this precaution would have made this bark liable. The case of The Tommy is cited, in which the omission to fasten the dunnage to prevent its falling in rough weather was held negligence, for which the ship was liable. 16 FED. REP. 601, 607. But the cargo there was of a wholly different character. To rebut the charge of negligence, it is sufficient to show that the ship has been dunnaged in the manner usual and customary for such cargoes. Shear. Neg. § 6; Baxter v. Leland, 1 Blatchf. 526; Lamb v. Parkman, 1 Spr. 343, 351; The Titania, 19 FED. REP. 101, 107, 108; The George Heaton, 20 FED. REP. 323; Clark v. Barnwell, 12 How. 283; 3 Kent, *217.

The evidence in this case is to the effect that the bags of nitrate formed a very compact and solid mass; that the dunnage which, in this case, was without other fastening than such as the bags afforded, was secured in the usual and customary manner. Of the various witnesses examined by the libelants, I have found none who testify that it was usual or customary to secure dunnage otherwise than was done in this case. The dunnage of the rest of the cargo was in place, and is proved to have been done in the customary manner. I have no right to assume, therefore, that it was negligence in the ship to rely upon the bags to keep the dunnage in place, when it appears that such has been the usual practice with cargoes such as this.

There was no proof that the bark was not seaworthy when she left Pisagua. The water which dissolved the nitrates did not reach the cargo through her decks, nor, as in the case of Hubert v. Recknagel, through defects for which the ship is answerable. REP. 912. The cargo between decks was uninjured. plainly reached the hold through leaks in the sides or water-ways

13 FED. The water

caused by general strain. There was evidently no lack of diligence on the part of the bark in handling the pumps. The log and the proof show that they were well attended to. And, as I have said, there is no proof of neglect to dunnage this cargo in the way customary for such cargoes. The loss is attributable, therefore, to the perils of the sea originating in the severe gale of July 19th, and the throwing of the bark upon her beam ends. This was clearly a sea peril; and the same cause so disarranged the dunnage, without the ship's fault, as to subject the cargo to constant loss afterwards, which the vessel could not prevent. This was still, therefore, a peril of the sea; and for such loss the ship, under the exceptions of this charter, is not liable. The Shand, 10 Ben. 294; Transportation Co. v. Downer, 11 Wall. 134; Clark v. Barnwell, 12 How. 272; The Titania, supra. In the case of The Sloga, 10 Ben. 315, cited by counsel, the evidence showed that the brig, though encountering severe weather, suffered no considerable injury, nor any leakage approximating to that in the present case, nor were there any such special causes of loss as existed here.

The libel is dismissed, with costs.

1. EQUITY PLEADING-COMPLAINANT NON COMPOS MENTIS-PLEA.

A plea alleging that complainant "was at the time of the commencement of the suit non compos mentis and incapable to sue," but failing to allege that he has been so found by inquisition or that any committee has been appointed, is bad.

2. SAME PRACTICE-MOTION TO STRIKE BILL FROM FILES-STAY.

The proper practice in such a case is by an application to the court to strike the bill from the files because filed without authority, or to apply for a stay of proceedings until a committee or next friend may be appointed.

WALLACE, J. The plea of the defendant alleging that complainant "was at the time of the commencement of the suit non compos mentis and incapable to sue," does not allege that he has been so found by inquisition or that any committee has been appointed. In the absence of such an allegation there is no authority for such a plea. Mitf. Pl. (4th Ed.) 229; Mitf. & T. 320. The proper practice in such a case is by an application to the court to strike the bill from the files because it has been filed without authority, owing to the mental incapacity of the complainant, or to apply for a stay of proceedings until a committee or next friend may be appointed. Wartnaby v. Wartnaby, 1 Jac. 377; Attorney General v. Tyler, 2 Eden, 230; Norcom v. Rogers, 16 N. J. Eq. 484. The court can then ascertain whether there is any reasonable foundation for suspending the progress of the suit. It would be intolerable to permit a defendant whenever so disposed to challenge the mental capacity of a complainant by a plea, and the practice might lead to grave abuses. The defendant has no interest in such an inquiry beyond being protected from a vexatious suit. Any person may volunteer to act as a next friend and bring a suit for an insane person when no committee has been appointed, and the court will entertain it and decide its merits. Jones v. Lloyd, 43 Law J. (Ch.) 826, against the objections of the defendant. The person thus officiously constituting himself the protector of the lunatic does so at his risk and may be compelled to pay the defendant's costs, and must establish the propriety of his act if called to account by a committee subsequently appointed. The solicitor who files a bill assumes the same responsibility.

The plea is overruled.

v.23F,no.4-11

FISHER V. PORTER.1

(Circuit Court, D. Nebraska. February 27, 1885.)

1. MORTGAGE REFORMATION AND FORECLOSURE-MISTAKE IN DESCRIPTION OF PROPERTY.

Where the uncontradicted evidence, in a suit to reform and foreclose a mortgage, shows that there was a mistake made in describing the property intended to be covered by it, the mortgage will be reformed so as to carry out the intention of the parties.

2. SAME-USURY-AGENT RETAINING COMMISSION.

When an agent who negotiates a loan, secured by mortgage, bearing 10 per cent. interest, which is legal at the time, retains as a commission 10 per cent. of the amount of the loan, the transaction will not be held usurious when it appears that the mortgagee did not share in the commission retained, or agree to do so, and that the agent was acting solely as agent of the mortgagor.

Suit to Reform and Foreclose Mortgage.

Mayne & Hunter, for complainant.

Geo. S. Smith and Geo. W. Doane, for respondent.

DUNDY, J. There was a mistake made in the mortgage, in properly describing the land intended to be covered by it. This is uncontradicted. The mortgage must, therefore, be reformed so as to carry out the intention of the parties.

The defense of usury relied on is not sustained by the proof, especially if the later decisions in this court are to be followed in determining that question. The Porters applied to Tullys, of Council Bluffs, to borrow $1,900. Tullys was a loan broker, whose business it was to procure loans for others, he charging a large commission therefor. The Porters specially employed him to negotiate a loan for them, and agreed to pay him 10 per cent. commission if he procured for them the $1,900 desired. This he did. The money came into his hands, and he retained his commission according to agreement. This he had a right to do, unless he (Tullys) was the agent of Fisher, the mortgagee. Tullys went to Plattsmouth to look after the matter, prepared all the papers, did all the business for the Porters, received the money, kept his commission, and gave to the Porters the balance. There is no testimony in the record that shows that Fisher, the mortgagee, ever received, or was to receive, anything whatever from the Porters, except the principal of $1,900, and interest thereon at 10 per cent. per annum. That was lawful at the time. There is nothing that connects Fisher in any way with the commission retained by Tullys, nor is there anything that shows Fisher even knew of that part of the transaction. Tullys expressly says in his testimony that he was not agent for Fisher, and did not represent him, and that he was acting solely for the Porters. If Fisher had shared in the commission retained, or had agreed to do so, or if Tullys had in any sense been agent for Fisher, then Fisher would be

1 Reported by Robertson Howard, Esq., of the St. Paul bar.