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of a particular description, and goods of that description are I. Ch. 23. delivered to him ; whether he is to receive a reward or not Art. 2. the nature and value of the parcel must be made known to him, Con. to enable him to adopt proper precautions for its safety—but, general notice must be brought home to the knowledge of the 5 B. & A. 343, employer. He must know his risk and be paid a reasonable Sleat v. Fogg.

Jones, Am Ed. premium for it, cases above, &c. 3 Taunt 272–8, do 146 ; 1828, p. 104. f. Smith v. Horne ; 2 Camp. 415; 14 East. 475, 16 do. 244. Beck v. Evans; 4 B. & A. 32; 2 Show. 128; 4 East, 371; 5 id. 507.

§ 8. con. Case against the dest's. as carriers for the value Art. 3. of bank notes sent by their coach. The plt's. silk warehouse- Con. men in London, employed one Hughes, as their agent to collect their debts in the country, and the deft's. were coach proprietors, and had given notice that they would not be accountable for parcels containing bank-notes (and many other articles nained.) Hughes having no knowledge of such notice, delivered a parcel containing bank-notes to their driver, to be carried to them in London; the parcel was lost; they had knowledge of such notice. Held, it was their duty to have instructed their agent not to send bank-notes by that carriage. Judgment for the deft's. Two points were decided in this case : 1. That carriers may limit the responsibility by special public notice : 2. • They must prove that the party sending the goods had knowledge of this notice,' a 3d point, • The knowledge of the principal is the knowledge of the agent.' The notice was a printed paper delivered to the plt’s. 3 Barn. &

Cres. 601 --604, in a prior case, so connected with the charges, &c. that they

Mayhew & al. must have seen the notice. 5 Barn. & Cres. 504.

Case lies against the three proprietors of a stage coach, for 4 Barn. & carelessly managing it and their horses, so that the ple's. leg was broken, &c.; though one of them was driving, and the jury found the injury was done through his negligent driving ; but the plt. might have sued him alone in trespass perhaps.

Held as to goods imported and carried, illegality of impor- 5 Barn, & tation, &c., is never to be presumed, and the deft. to raise the objection, must prove the goods were not entered.

If a master who has signed a bill of lading deliver back the 6 Barn &. goods, he ought to have all parts of the bill of lading delivered Thompson v. up to him, for if any one part has been transmitted to a third Trask. person, he may have acquired an interest in the goods.

§ 1. con. In case of a loss, the carrier must show the Art. 7, cause ; not enough he shows it was in a place of danger. He Con. must show he was prepared for it to a common intent; his vessel, boat, or carriage, fit and proper ; his pilot competent and careful, his bands sufficient in experience and strength.

v. Eames & al.

Cres. 223.

Cres. 758.

I. CH. 23. Jones, Ain. Ed. 1828; Murphy, Brown, & Com. v. Staton, 3 Art. 7. Munf. R. 289; Bill v. Reed, 4 Binn. R. 127 ; 1 Cons. R. Con. S. Car. 114--311. Negligence or not is a question for the

jury. 10 Johns. R. 1, 6 do. 160; 5 Day's R. 415; 1 Johns. R. 232; 1 Con. R. 437.

If a vessel of a common carrier strikes on a rock, not generally known, and the master did not actually know it, and if he conducted himself properly, and no fault imputable to him, he would not be liable; secus, if the loss be imputable to negligence, as if the master be ignorant of the navigation of the river, and have not a pilot on board. Williams v. Grant, 1 Con. R. 487; 11 Johns. R. 107; 15 Johns. R. 39; 5 B & A, 57.

CHAPTER XXIV.

CHOSE IN ACTION.

ART. 4. 26. But the assignee must use due diligence to obtain Con.

payment of the obligor. i Call, 497; 2 Wash. 219. The

assignor is liable only for what he receives, when that is prov5 Munf. ed, when not for the amount of the bond, id. The assignee of 456; 6 Munf. the bond is in no better situation than the assignor. 3 Munf. 15-315, 391,

68; 4 Munf. 496.

449.

CHAPTER XXV.

CONSIGNMENT. 1 Mason.

21. Every shipment of goods remains at the risk of the shipper (consignor) except there be an express or implied authority to change the property, and put the shipment at the

risk of the consignee. 4 Pick. 371 § 22. How goods may be left for the consignee. A master 374, Chicker- of a vessel promises to deliver goods to the consignee ; this ing v. Fowler.

does no: require him to deliver them to the consignee personally, or at any particular wharf. He may leave them at some usual place of unlading, giving notice to the consignee they are so left : 2. If, after such notice, the consignee refuses to receive them, the master must take care of them for the owner, unless the consignee is under obligation to receive them, in which case they will be at his peril.

285.-289.

& R. 14.

5 Binn. 285.

al. v. Coffin.

CHAPTER XXVI.

I. Ch. 26. CUSTOMS AND PRESCRIPTIONS.

Art. 2.

Con. § 3. con. A custom to take fish in alieno solo in a river not navigable, is bad : If good, it must be pleaded specially, and even a suit before a justice for it, affects title to land : must if at all be claimed by prescription in a que estate. 4 Pick. 145--148 ; Waters v. Lilley.

§ 11. con. The custom as to the way going crop, is in full force in Pennsylvania, as to a tenant for a term certain, whether or not noticed in the lease ; and he may have trespass for 2 Serg. & R. it, against the landlord or his vendee, after the lease has ex- 14; 5 Binn. pired. So the lessee's right remains, though one gets possession by a habere facias possessionem on a judgment in eject- Biggs. v. ment. And the lessee for years in trespass for cutting and Brown, 2 Serg. carrying away his grain, may prove the custom, though not stated in his declaration, nor mentioned in his case.

16. In the whaling and fishing business, the fishermen 3 Pick. R. 115. &c. have shares instead of wages, and the owners, and some- 124, Barney & times the master, supplies them with necessary articles, and charges them in account made up of the voyage, for the fare or for the season, &c. This, it seems, is a good custom or usage ; and there is a lien on the shares.

§ 17. Restraint of trade. Debt on a bond; on oyer the 3 Pick. R. 188. condition was, if the said S. shall, from this time, cease to 194, Palmer & have any concern in the business of boating on Connecticut al. v. Stebbins. River, and shall give them all the freighting of his goods, wares, and merchandize, up and down C. river, at the customary freight, and to be paid in goods at the usual price, and shall aid and continue them in their business, and shall not directly nor indirectly promote any other boatien, to compete with them in the business of boating, then this bond to be void, &c. Held, this bond was for a good consideration and not void, as being a restraint on trade.

Another whaling custom for two ships to join stocks, &c. held a good custom. 3 Pick. 435--441; Baxter & al. v. Rodman.

18. Constitutional law. Held, the legislature has au- 3 Pick. 462— thority to enact, that the interest an inhabitant of a city has in 175, Commona penalty for the breach of a by-law thereof, shall not disqual-Wealth v. Worify him to act as a judge, juror, or witness, in a prosecution to recover such penalty. Stat. 1824, ch. 28, s. 4: 2. It is for the court to decide, is a by-law be unreasonable or not: 3. It is no objection to the case in question, that it is confined in its operations to the city of. Boston. The legislature has

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1 Ch. 26. power to enact laws local and limited in their operations : 4.
Art. 2. Stat. 1817, ch. 50, authorizes the prosecution in the name of
Con. the Commonwealth. The law violated, required persons driv-

ing carts, wagons, sleds, &c. in the streets of Boston, to
ART. 6. • drive their beast or beasts, a moderate foot paće,' and not in

Con. a gallop or trot. 2 Barn. & Cres.

23. Quo warranto. Held, a regular usage for 20 years
54--64, the unexplained, and uncontradicted, is sufficient to warrant a jury
King v. Joliffe. in finding the existence of immemorial custom. Here the

jury, as the case should be, presumes such custom; the judges
alone, do not decide the case. There is no question but that
a jury may presume a custom, or deed, or grant, on a peace-
able unexplained possession or usage for 20 years, or even less
time, against him who has so long acquiesced constantly, and
where it has been for his interest to make his claim or objec-
tion, if he, in that time, has had any right so to do. My ob-
jection is, and ever has been, to the judges deciding in such
cases without a jury. The judge may leave the jury to pre-
sume or not, according as the evidence may be, still it is ever
a matter of presumption, which as much belongs to the jury,
as the law does to the court, and so I conceive the numerous
cases on this subject may be explained.

CHAPTER XXVII.

DAYS, DATES, &c.

H. 72.

ART. 1. § 2. con. A note dated Sept. 19, 1795, payable in 12

Con. months after dated, is suable Sept. 20, 1796. Here, 12 4 Har. & M’months mean a year, and the note was suable the 20th, ex

cluding the day of its date in the computation.

When an officer gave a deed of a right to redeem &c. after sun set of a certain day, this day was excluded ; see ch. 112, a. 7, s. 21, vol. 1; see ch. 96, a. 1, s. 25; where the court will notice the fractional parts of a day, as to judgınents rendered, mortgages given, executions delivered, &c.

§ 9. Two instruments dated the same day and executed the same. Proof is admissable to show which, in fact, was executed first, as two policies, and if executed both at the same time the

assured may recover the whole loss on either, is large enough 2 Mason, 475, to cover it. In this case it was proved the policy sued, was Potter w. Mar. executed in the morning, and the other in the evening of the Ins. Company.

same day. Judgment for the plt.

§ 10. Fraction of a day. If two judgments or executions Nott. & My be of the same day, neither has the preference, but it is othCord, 405-407.

erwise as to vested rights acquired by operation of law, or by

605-615.

land.

contract, as if two mortgages be made the same day, the ex- 1 Ch. 27. act time at which each is executed may be proved; or a judg. Art. 1. ment obtained ; as the rule of law that fractions of a day are Con. not to be allowed, applies rather to legal proceeding, or to legal diligence, than to questions of right unconnected with them, and 1 M'Cord, 399.

§ 11. Many cases as to the computation of time : 1. Where Dean's Case & this computation in a statute is to be from an act done, the first Notes, 2 Cow. day is excluded; as where an appeal is to be made in so many days : 2. No general settled rule in England. In the case of 15 Vez. 248, Lester's will, security to a certain purpose was to be given in Lester v. Garsix calendar months after his death. He died Jan. 12, in the evening, and the security was given July 12, in the evening, and adjudged good, and it was observed the day of his death was excluded. Numerous and able counsel argued this cause, and cited many authorities, and they agreed the day on which ad act is to be done, or an event is to happen, may be in the computation of time included or excluded, depending on the Sec 1 Wills. reason of the thing according to the circumstances. Dean's 126, 2 Wills. case was an appeal to be in four days from a judgment of the 165.Cowp. Common Pleas, rendered Sept. 12, bond given the 16th, too Hampton, 1 late if the 12th, the day of the act done, was to be included in Serg. & R.411; the computation of time; held excluded; was decided under the Browne, 3 Statute Sess. 41, ch. 94, s. 17. The authorities cited are Serg. R. 496, found in this chapter generally.

15 Mass. R. § 12. The law does not notice the fractions of a day, as between the parties, in order to determine whether the judgment record was filed before execution issued, unless to prevent actual injustice : is injustice to take out execution and levy it, before such record filed, though the same day; as had it been first filed, the debtor might have paid, &c.

3 Cowen, 19. $ 2 con. From

inay

mean inclusive or exclusive of the day, &c. Art. 5. From the day of the date excludes the day; 2 id. 165–168; Con. cited ch. 130, 1, 5, seems different; Cow. 189–192, Doe 2. 1 Wils. 176– Watton, seems to be the same, but all these, and many other 177, cited ch.

114, a. 19, s. 4. cases like them, were before Pugh & Wife, &c.; in this section even lord Mansfield changed his opinion.

193.

CHAPTER XXVIII.

DAMAGES.

6. As in the printed work, each statute enacted by the ART. 1. legislature of Massachusetts, is cited by its true date, that is, the Con. common year, month, and day, when enacted, except a few taken from Massachusetts Reports, and some object to this VOL. IX.

11

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