in assumpsit, the father recognizes an implied contract. He cannot recover damages for any wrong, if there be any in the case. It is wholly immaterial whether there exist any wrongful practice in New Bedford, or not. The father asks the value of the minor's services. He can only recover that. It is of no consequence in this action, why the defendants shipped the minor. If he had chosen to bring an action for enticing or harboring the minor, and the facts would support the action, the rule would have been different.

As to the preliminary question of assent on the part of the father, which has been raised in the case, the burden of the proof is on the defendants. It is undoubtedly true that if a father stands by and having power to dissent, does not, the law will infer he means to assent. It does not appear that the father distinctly assented or dissented when at New Bedford. The defendants contend that he should have demanded that the boy should be returned at Fayal. But there is no evidence that the father was told by them that the ship would stop there, or that he knew that fact. If you can infer any assent on the part of the plaintiff from the evidence, and that he knew what the contract was, he is bound to it, but the defendants must satisfy you on this point.

As to the measure of damages in this case, my opinion is, that the value of the services at sea rather than the previous services of the minor at home should be taken as the standard. The legal rule is, the value of the services at the time and place and under the circumstances under which they were rendered. The value of the precise services rendered-that is what the father sues for.

He is not bound by the contract. The lay given in the shipping articles is only evidence of the fair value of such a boy's services. It is not conclusive. And on the other hand, as the contract is not to govern, you may take into consideration the conduct of the boy and deduct anything for unfaithfulness if you deem it right. You are to pass on the whole question of the value of his services.

If you give the boy 1-190, which is what the captain testifies is the usual lay in such a ship for green hands, his share will amount to $315. That is the gross value of his services, if you take the standard. Whatever sum you assume, from this you are to deduct such sums as have been paid by defendants for necessaries furnished during this period, either as outfits or as supplies from the slop chest. This rests on the ground, that the father can recover in this action precisely what he could if he had shipped the minor himself, without any express contract.

As he is to rely on this kind of service, you are to consider that he is relieved from furnishing board and clothing during this time. In estimating the value of the sea service, you are to consider what is needed to support the minor while in it. The kind of employment determines the amount and nature of necessaries. Inasmuch as the father recovers wages based on expenses, this is equitable. As he claims benefits he must take burdens of the service. Wages are graduated according to these necessaries. You must deduct then what the defendants have paid, that the father ought to have paid, so that he may have the same as if he had sent the boy himself.

But the law only allows necessaries. You must judge what is reasonably necessary. The father is not bound by the orders or the bills. Only what is reasonable as to kind, quantity and prices of articles furnished, can be allowed. Certainly some articles are not necessaries, and the money furnished on the voyage can hardly be called necessary, though this question must be submitted to you. It is claimed there should be another deduction on account of the conduct of the boy and his temporary desertion, and this on the ground that the services of such, a boy are less valuable. You are to take all the evidence into consideration and say whether any deduction ought to be made from what boys usually have. The defendants also claim that certain deductions should be made for fitting and discharging ship, etc., and for medicine chest. This is claimed on the ground that it is the universal understanding that these charges are to be made against a seaman's voyage, and that his lay is graduated with this understanding. If this be so, it is for you to say how much you will allow. You are to consider and pass upon the reasonableness of these charges. The outfitting of a whaler undoubtedly requires much more expense than that of a merchant vessel. But af

ter all you may think it comes back to the understanding; and if persons are always shipped with the understanding that these charges are to be made, it is for you to say whether you are not to take the customary amounts in estimating the value of services according to the lay usually given. After all, this is a practical question, and in my opinion the best tribunal to settle it is a jury of twelve men. Under the rules laid down, you are to say what the real value of the minor's services were; and then add interest from the date of the writ.

The jury returned a verdict for the plaintiff in the sum of $189 60.

CLAIMS FOR DIFFERENCE IN VALUE OF COTTON SOLD AS "ORDINARY." Decision of New Orleans Chamber of Commerce; before a Special Committee. Present, Chas. Briggs, Second Vice President, Messrs. M. Greenwood, Wm. Mure, W. S. Pickett, G. A. Holt. Prehn, Clegg & Co. vs. Wright, Williams & Co.

This is a claim for £90 7s. 3d. sterling, the alleged amount of difference in value between ten bales, part of a lot of sixty-nine bales of cotton sold as "ordinary" by defendants to plaintiffs; but whieli, the latter assert, turned out to be false packed and deceptive, and the sale of which resulted in a loss of the sum now claimed.

It appears by the documents submitted to the committee, that the whole purchase, of which the ten bales in question formed a part, consisted of two hundred and forty-three bales, which were classed by the broker, Mr. Schmidt, as follows: Twenty-three bales fully middling, sixty-eight good middling, seventy-three good ordinary, sixty-nine ordinary, six stained, and four low ordinary.

The plaintiffs assert that the spinners in England for whom the cotton was purchased, on opening the sixty-nine bales of ordinary, found the ten bales complained of fraudulently packed, so as purposely to deceive the buyer-a very small quantity of the good cotton being on the top and bottom, while the bulk of the bale was gin dirt and dust not worth the carriage.

The plaintiff's claim is supported by a certificate of the foreman of the spinners for whom the cotton was purchased, who declares these ten bales to be false packed, and worth only twopence half penny per pound, while the remainder of the lot was worth seven pence per pound; also by a certificate to the same effect by a person named Richard Wright, who is described by the plaintiffs as a respectable merchant in the trade. This latter certificate is not sworn to, and there is no consular certificate to any of the papers. The only testimony offered on ei ther side is that of Mr. Schmidt the plaintiffs' broker, who bought the cotton, and the samples drawn by him at the time of the purchase, together with the samples of the ten bales in dispute returned from England. Mr. Schmidt testifies that in classing cotton purchased by him, he never puts mixed cotton in any regular class, but either altogether rejects it or classes it by itself, dependent on the terms of the contract. He further testifies that the difference in value between the lowest and the best cotton in each separate sample exhibited of these ten bales, does not exceed three to four cents per lb. in this market.

The committee have carefully examined the samples and the testimony presented to them, and are of opinion that they are altogether insufficient to establish the identity of the cotton. The plaintiffs' own witness, Mr. Schmidt, distinctly states that he never would have put "mixed cotton," such as is contained in these ten bales, among "ordinary" cotton, nor in any other regular class, and yet in no other way could they have possibly got into the lot of sixty-nine bales, among which they are said to have been found, but by his own act. There are two qualities in each of the samples of these ten bales, one, which if they were false packed, would of course have been placed outside, fully middling quality, the other be low ordinary, and by no method of drawing samples known to the trade here could these bales, thus constructed, have found their way into the ordinary class of this purchase. The whole declaration of the foreman of the spinners is at variance with the testimony of the plaintiffs' broker here, and with the evidence of the samples themselves, he says that "each bale was merely coated with the

description it ought to contain, whereas if they were coated at all for the purpose of deceiving, it could not have been with the description it ought to contain, for there was none such in the bales, but with a class either better or worse, for as before stated, these ten bales, if correctly represented by the samples, contained cotton either entirely above or entirely below the class "ordinary" to which they are said to have belonged. That part of the declaration of this witness in which he asserts, there is a difference of four and half pence, or nearly nine cents, per lb. between the ten bales and the other cotton in the shipment, is equally at variance with the evidence of Mr. Schmidt, who testifies that the difference does not exceed three to four cents per lb., and the appearance of the samples exhibited to the committee, and under these circumstances the committee unanimously award:

That the claims of the plaintiffs be dismissed, and that they pay the costs of this arbitration.

LIBEL FOR COLLISION.

In United States Circuit Court, Philadelphia; before Judges Grier and Kane, Sept. 13th, 1852. The Delaware-appeal in admiralty. Palmer and all owners of the bark Delaware vs. the Osprey.

Grier, Judge. Taking all the other circumstances of these cases together, and omitting the fact of almost total darkness, and that the bark could see the steamboat while the steamboat could not see the bark, the steamboat would have clearly been held liable for the damages of the collision. It is true there is no law requiring vessels navigating the high seas after night to carry signal lights, and I concur with the District Court that it is to be much regretted.

The case before us is briefly this: A steamboat and a sailing vessel are meeting one another on a very dark night in the Delaware Bay, six or seven miles within the Capes. The bark has the wind free. They are approaching each other at the rate of sixteen, or at the least calculation, fifteen miles an hour, and therefore approximate in a right line at the rate of a mile in four minutes. The steamboat has three lights out; the bark has none. The bark sees the steamboat approach. Sailing before the wind, she has the power to give the steamer a wide berth and obviate all possible danger of collision.

Now, if the steamer had the same opportunity of observing the course of the bark, the latter, knowing this fact, would have a right to expect a consequent caution on the part of the steamer. But I think it is plain from the testimony, that the light shown by the bark was too late to be of any benefit or to warn the steamer of its approach, till the very moment of the collision. The warning giv en of the approach of the bark by her sails intercepting the light from the lighthouse, like that of the lamp from the bark, was also too late, as well as too uncertain, to justify the steamboat in taking any other means of escaping a collision than she did take. The order to starboard the helm before stopping the boat and reversing the engine, may have been wrong, and it may be true that these latter orders were not fully executed at the time of the collision. It may be true also that the order of the bark to starboard her helm, and disregard that of the steamboat captain to port it, was correct, and the only way of avoiding collision which would have destroyed the bark. But these considerations cannot affect the It was the fault of the bark and not of the steamboat that the vessels were brought into such proximity that such mistakes might be made in the dark, when the pilot of the steamboat could neither judge of the distances between the approximating vessels, the rates of their approach, or the relative angle of their respective courses. It was the duty of the bark, which could see, to give a wide berth to the boat, which could not see; and not to leave it in the power of her pilot by a mistake in a moment of surprise to cause a collision.

case.

The rule of passing to the right, or porting the helm, in cases of vessels meeton the same line, is founded on the supposition that each party can see the other. But where one is blind, and the other knows it, he should not put himself within reach of injury by any mistake of the blind, or run over him or knock him down for not observing the rule.

The court cannot establish any rule to bind vessels navigating the high seas after night, to carry signal lights; but where one party does this and the other does not, we can and will treat (in a case cæteris paribus) the dark boat as the wrong doer and liable to make reparation. In rivers and narrow channels, and in harbors, there are generally local regulations requiring it. But if there be not, it would still be advisable for vessels sailing either in close or open channels, to keep proper signal lights on dark nights, if they expect a remedy in courts in case of collision.

The decree of the District Court in these cases is therefore affirmed.

OBTAINING GOODS UNDER FALSE PRETENSES.

The following case of obtaining goods under false pretenses, was heard and decided, in Cincinnati, by Judge CARTER, of the Court of Common Pleas :McCullough, Morris & Co. vs. J. H. Einstein. This was an action of replevin for the recovery of certain merchandise in the defendant, under following cir

cumstances:

A Mr. Einstein, a merchant in failing circumstances, Attica, Indiana, purchased by false representations the merchandise of the plaintiffs. This same merchant was a debtor to many creditors in this city about that time, and informed of his condition, these creditors pursued him, and compelled him by way of settlement, to give up to them at the rate of ninety cents on the dollar the greater part of his stock of merchandise. The defendant, as a creditor of Einstein, thus came into possession of the property got from the plaintiffs by Einstein.

A jury was waived; and the premium, on extended argument, submitted to the court.

Judge Carter held:

1. That the weight of the evidence manifested, that Einstein obtained these goods from the plaintiff's by false representations.

2. That, therefore, as against the plaintiffs, he acquired no right of property in the goods; and replevin might be well maintained against him.

3. That when in a purchase, though made by false representations on the part of the vendee, the vender intends at the same time to part with the right of property and of possession-in a word, if there is a complete sale of the property-then the rights acquired by an innocent purchaser, in the ordinary course of trade, are not to be affected by the rights of the original vender.

4. But then, creditors, so far as the weight of testimony goes, are not to be considered in the light of truly innocent purchasers, without notice in the ordinary course of trade: they were pursuing their debtor, and were well aware of his condition-and being so, they took the property at their own peril, so far as the right of others were concerned.

Besides, it is shown by the evidence, that the property in question in this case was in possession of the defendant under concealment; and if so, the court considers this is an especial item of testimony to show, that the defendant does not truly stand in the light of an innocent purchaser, without notice. Judgment for plaintiffs.

BANK CHECKS-OVERDRAWN ACCOUNT.

In the Supreme Court, city of New York, May 26, 1852; before Judge Sanford. Metropolitan Bank against William & James Currie.

This is an action to recover an amount alleged to have been overdrawn by defendants, as account stood between the parties, August 20, 1851.

It appeared that a check of Maretzek, for $4,400 on the Mechanics' Banking Association, dated August 20, 1851, was deposited by defendants in the Metropolitan Bank, and credited at first to them. It was sent in the course of bank business to the Mechanics' Banking Association, the next morning, and returned dishonored; notice of which, it is alleged, was sent to defendants the same day, which, it does not appear, they received. The same morning, the 21st, the defendants gave Maretzek a check for $5,300, which was certified by the teller of

the Metropolitan Bank, and intended, as alleged, to enable Maretzek to take up his check on the Mechanics' Banking Association; it was credited by them to Maretzek, and afterwards payment was countermanded by defendants.

The plaintiffs contend, that it is the practice with the banks to receive checks from their customers without examination, and credit them until they send and find whether they are good; and if they are not good, they return them and require the depositors to make up the deficiency, and the defendants knew of this usage. They also maintain, that the certified check was delivered and credited to the Mechanics' Banking Association before the order of countermand.

The defendants deny that their account was overdrawn; they claim that the certified check was paid, notwithstanding they had countermanded it; and that the funds of Maretzek in the Mechanics' Banking Association were paid out after the check of $4,400 was sent to the bank.

The court having summed up the evidence, reserving the questions of law, instructed the jury to return answers to the following questions on the facts of the case.

1st. Have the Metropolitan Bank assumed and taken the check of $4,400 as their own? Answer, No.

2d. Was the check of $5,300 credited by the Metropolitan Bank to the Mechanics' Banking Association, in the pass-books of the latter, before the Curries notified the Metropolitan Bank not to pay it? Answer, Yes.

3d. Was the check of $5,300 credited by the Metropolitan to the Mechanics' Banking Association, in the ledger of the Metropolitan, before the Curries gave notice not to pay it? Answer, Yes.

Whereupon the court ordered judgment to be entered for plaintiffs, for $4,315 67.

E. Sanford for plaintiffs. C. P. Kirkland for defendants.

ASSUMPSIT AGAINST THE MAKER OF A PROMISSORY NOTE INDORSED IN BLANK.

In the Supreme Judicial Court of Massachusetts, March term, 1852. Mechanics' Bank vs. Dexter Hildreth.

A firm of two individuals had sold out to the defendant, and received from him six promissory notes for their stock; four of which were divided between the partners, each taking two as his share and property. One of them received the note in suit as his, and indorsed it in blank in the firm's name. The other immediately went into insolvency and the note was thereafter sold. The time of indorsement being in dispute, the jury found at the trial below that it was made before the publication of the notice of insolvency. It was contended that no valid title was shown in the plaintiffs.

The opinion of the court was delivered by Bigelow, J. He said it was unnecessary to go into the question, whether a note on which the firm's name is indorsed before dissolution, and which is negotiated after by one of them without authority, is vested in the holder by a valid title, because it appeared that in this case a perfect title was vested in one of the partners before the dissolution by insolvency. There was an agreement by two partners to divide their joint property, each taking his share; and this they may do. Colyer on Part. § 174. Having exercised this right, it followed, that while the co-partnership continued, each might act in the name of the firm, to vest his share in himself, and might so indorse a note for that purpose. The jury having found that the note was indorsed before the dissolution, it followed that he thereby vested the title absolutely in himself, and might transfer a good title. Exceptions overruled, and the judgment of Court of Common Pleas for the plaintiff affirmed.

PROMISSORY NOTES-INDORSERS.

In the Supreme Court, city of New York, May 21, 1852; before Judge Sanford. Henry L. Van Wyck and another against John McIntosh.

The defendant in this action is sued as indorser of a promissory note, made by Thomas McIntosh & Co., for goods sold to them by plaintiff. The note is dated November 14, 1850, for $2,045.