the principal. 3. When a payment is made before either principal or interest is payable, it should be applied to the extinguishment of principal, and such proportion of interest as has accrued on the principal so extinguished.

TABLE OF THE RATES OF INTEREST IN THE UNITED STATES.

Penalty of usury.

The whole interest is forfeited.
Usurious contracts are void.
There is no penalty.

The whole interest is forfeited.

The whole loan is forfeited-one-half to the State, one-half to the informer.

Usurious contracts are void.

The whole interest is forfeited.
The whole interest was forfeited.

Party suing on usurious contract forteits three
times the whole interest, and must pay costs;
and a party having paid illegal excess, may
recover back three times the amount so paid.
Five times the am't of whole interest is forfeited.
The whole interest is forfeited.

Penalty of three times the amount of the usury, to be deducted from the debt.

Usurious contracts are void.

Usurious contracts are void. Usury paid may be recovered back, and the taking of usury is a misdemeanor.

Usurious contracts are void.

The whole interest is forfeited.

Usurious contracts are not void, except as to excess; but the whole loan is forfeited, onehalf to the State, one-half to party suing. Illegal interest cannot be collected, and, if paid, may be recovered.

The whole interest is forfeited.

No interest can be collected.

Virginia
Wisconsin...

It seems to be the rule in Connecticut that interest, not reserved by agreement, can only be due yearly, and that a payment must not be applied to extinguish interest that has not yet become thus due.

VOL. XXXVL-NO. VI.

44*

JOURNAL OF MERCANTILE LAW.

PAROL CONTRACT OF AFFREIGHTMENT--DUTY TO CARRY UNDER DECK.

United States District Court. Decision in Admiralty. Before Judge Hall. John Clifton vs. a quantity of cotton; William H. Sheldon vs. the brig Water Witch, &c.; John H. Brower, et al., vs. the same.

HALL, J.--In the suit first above entitled, the libelant seeks to recover the freight, claimed to be due to the Water Witch, for the transportation on board that vessel of the cotton lineled, from a port in Texas to New York city. This claim of the owner of the Water Witch is resisted on the ground that the cotton received on shipboard, by the fault of the master and owners of the vessel, a damage exceeding in amount the whole freight, which would otherwise have been due for such transportation.

The other suits are prosecuted to recover such damages to the cotton, and the three suits were heard together.

I think the evidence sufficiently establishes the right of the libelants, Sheldon, Brower & Co., to maintain these suits in their own names, as the consignees and agents of the shippers, having a personal interest, by reason of advances made upon the cotton consigned to them respectively. It is true that the bills of lading prepared and presented by the shippers for the master's signature, and in which these libelants were named as consignees, were never signed by the master; but his refusal to sign these bills was based upon grounds entirely distinct from the objection that they did not name the proper consignees, and on the arrival of the vessel at New York they were by him recognized as the consignees of the cotton, by delivering it to them as such, and presenting to them his bill for the freight thereof.

The charter party proved in these cases was not made with the shippers or consignees, nor were they or either of them bound by its provisions, or even made acquainted with its contents. The cotton was shipped, as upon a general ship, at a uniform rate of freight, and there was no agreement or consent, on the part of the shippers, that part of the cargo should be carried on deck. It was, therefore, the duty of the master-as it is always the duty of a master, in the absence of any contract, consent, or established usage, allowing the cargo, or a part of it, to be carried on deck-to carry it under deck, as would be required under a clean bill of lading. Upon a parol contract of affreightment, where there are no express stipulations in regard to the extent of the shipowner's liability, the extent of that liability, as implied by law, is doubtless that which is ordinarily assumed under the customary or common bill of lading, and the goods must, as a general rule, be carried under deck. I agree that a well-known and well-established custom to carry on deck at the shipper's risk, in a particular trade and between particular ports, in the absence of any express contract or consent on the part of the shipper or owner of the freight, avoids, in respect to that particular trade, the force of the general rule, which had its origin in the general usages of commerce; and this, whether the contract of affreightment in the particular case is by parol, or is contained in the ordinary form of what is called a clean bill of lading; but such particular custom must be clearly established and well known. The estab lished rule upon the subject is well laid down by Judge Ware, in the case of the Paragon, (Ware's Rep., 326, 327, 328,) with his accustomed precision and elegance of expression, as well as with the accustomed accuracy of that learned and able admiralty judge. See also the Rebecca, (Ware, 210, 211.)

But in this case there is no satisfactory proof of such a custom. On the contrary, the preponderance of the proof is against the existence of such custom. Besides, the freight agreed to be paid was a uniform rate, and the ordinary rate of under-deck freight; and if, as stated by Mr. Justice Story, in Vernard vs. Hudson, (3 Sumner, 305,) an agreement that goods shipped under a clean bill of

lading are to be carried on deck, may be deduced from the fact that the goods are, by the terms of such bill, to pay deck freight only, it would seem to follow that an agreement for the payment of under-deck freight, in the absence of any proof of an express contract to the contrary, ought to be held to establish conclusively the obligation of the master to carry the goods under deck.

Upon the whole evidence, then, I shall hold that the liabilities of the Water Witch are the same as though the cotton had been shipped under a clean bill of lading, (except that there is no admission that the cotton was shipped in good order.) and had, under such a bill of lading, been consigned to the libelants in the suits for damages.

In regard to the condition of the cotton when it was shipped, and the great question in regard to the damage received on shipboard, and for which the vessel is liable, there is a most decided conflict of testimony-equaling, in that respect, the conflict of testimony in a collision case between two vess ls, each with a numerous crew, who witnessed the collision from entirely different points of view, and severally testify under the influence of the natural and strong prejudice always felt in favor of "vessel and owners." Nevertheless, I cannot doubt that the very bad condition of the cotton at the time of its delivery in New York resulted, in part at least, from sea-damage, for which the vessel is liable. It is true that it was probably received in bad condition, from what is called "country damage," and certainly the vessel is not liable for the whole damage received from the time it was first packed in bales to its arrival in New York; but I see no satisfactory mode of determining the amount of sea-damage, (as distinguished from "country damage," or damage received before shipment,) for which the Water Witch is liable, except by a reference, affording all parties full opportunity to produce all the evidence which can be adduced upon this question.

There must, therefore, be an order of reference in the three suits to ascertain1. The amount of freight upon the cotton delivered to Brower & Co. and Sheldon, respectively, allowing only at the "on deck" rate for so much of the cotton as was actually carried on deck. (Vernard vs. Hudson, 3 Sumner, 305.) 2. The amount of sea-damage upon each lot of such cotton, for which the brig is responsible.

And on the coming in and confirmation of such report a final decree should be entered, according to the rights of the parties, as determined by such report.

PASSENGER CONTRACT-NON-PERFORMANCE AT THE DAY-EXCUSE.

United States Circuit Court, Sept. 23d, 1856. Before Judge Nelson. John T. Howard and others, vs. William Cobb.

NELSON, C. J.-This libel was plead by Cobb against the respondents, to recover for a breach of contract to carry certain passengers in the steamship New Orleans from Panama to San Francisco, the vessel to leave on her trip in the month of April, 1850. The fare paid was $150 for each passenger, and an engagement given for the passage in the form of a ticket. This suit involves the amount of ten tickets. The ten purchasers presented themselves at Panama on the 1st of April to take their passage; but the Orleans had not then arrived, and did not till the month of August following. She had left the port of New York in February, but had encountered rough and stormy weather, and was obliged to put into St. Thomas for repairs, where she was detained a long time, and which was probably known to the passengers at Panama. The brig Anna, belonging to the libelant, was at this place in April, and sailed thence to San Francisco on the third of the month. The ten passengers whose tickets are in question took passage in her, and transferred these tickets to the master, which were received for their fare. This libel is filed to recover the amount, $1,500, and interest. The Court below decreed in favor of the libelant.

It is objected that the suit is not in the name of the original parties to the contract for the passage; but it is every day's practice in Admiralty to allow suits to be brought in the name of the assignee of a chose in action. The libelant is the real owner of the tickets, and, therefore, the proper person to bring the suit, and in his own name.

It is also objected that the disabling of the New Orleans by stress of weather excuses the fulfillment of the contract at the time provided for. How this might be in a case where the passenger was on the vessel at the time of the casualty, causing delay in the voyage, it is not now necessary to determine. Certainly, until the passenger becomes connected with the vessel as a passenger on board, he is in no way subject to her casualties and misfortunes occurring through stress of weather or otherwise. He is a stranger to her. The contract bound the owner to have his vessel at the place and time designated; that he had stipulated for as a part consideration for the price paid, and assumed upon himself the responsibility of performance; and the failure operated a breach of the engagement, and subjected him to a return of the price paid. The winds and waves or weather are no excuse for the non-fulfillment of a contract as to the time of the commencement of the voyage. If these circumstances had been intended as elements of it, they should have been expressly provided for by the owner, and then all parties concerned would have understood it.

It is said that the passengers should have waited the month of April, and that the owner had the whole month to furnish his vessel there. Admitting that he had the month, the utmost that can be claimed is, that the passengers took the risk, if the vessel arrived within the month, of losing their right to demand a return of the fare. There was no abandonment of the voyage, for the tickets for the passage money were appropriated to the completion of it. The passengers, doubtless, knew the disabled condition of the Orleans, and that she could not arrive at Panama in time to fulfill her engagement; and it would have been an idle act to have waited the month, especially as there seems to have been no provision made by the owners for a substitution of another vessel, nor indeed, for aught that appears, any interest or concern taken in the matter.

The decree below I think right, and should be affirmed.

DEMAND AND REPRISAL-A NEW POINT IN THE LAW OF REPLEVIN.

Supreme Court-Circuit, New York-April 10, 1857. Before Judge Davies. John B. Cole, and others, vs. Peter Rice, and another.

This was an action in replevin. The complaint charged that the defendants had wrongfully taken and held eight thousand eight hundred and thirty-four light Osnaburg bags, and the usual demand and refusal. The answer contained a general denial, and claimed that the bags were the property of W. F. Schmidt & Co., and not of the plaintiffs, and were delivered to these defendants by said W. F. Schmidt & Co., in return for other bags, &c.

It appeared in evidence that W. F. Schmidt & Co. hired of the plaintiffs the bags in question, taking a bill of the same, at the bottom of which was written, in case any of the bags should not be returned, and were missing, they should be paid for at a certain rate. It was also shown that Rice & Co. obtained possession of the permit, and took all the bags from the Custom-house, but that upon the replevin suit being commenced, all bags with Cole & Co.'s mark on, then in possession of Rice & Co., had been taken by the sheriff or returned by defendants, but that there were 695 bags less than the bill of lading called for. It was contended by the defendant's counsel that the action should have been assumpsit against Schmidt & Co., for the value of the bags; that by the terms of the hiring they had the option either to return, or keep, and pay for the bags, and therefore that the property passed out of the plaintiffs, and replevin could not be maintained. The judge charged the jury that the action was properly replevin, that the property in the bags had not passed out of the plaintiffs, and that they had their lien in rem., and could not be compelled by a third party to look to the simple credit of Schmidt & Co. for payment. That as to the missing 695, it was for the jury to say whether Rice & Co. ever had those, and if so, then they would give a verdict for the plaintiffs for the full amount claimed.

The jury brought in a verdict for the plaintiff, for the 8,138 bags returned under the replevin, and assessed the value at $1,465 02-100. And also for the plaintiff for $126 83-100 as the value of 695 bags not returned and missing. Allowance of $50.

COMMERCIAL CHRONICLE AND REVIEW.

CLOSE OF THE SPRING TRADE, WITH A SUMMARY OF ITS RESULTS-THE SUGAR SPECULATION-THE TRANSIT OF THE ISTHMUS OF DARIEN-THE ATRATO ROUTE-THE RECEIPTS AND COINAGE OF BULLION THE BANK MOVEMENT THE IMPORTS AND EXPORTS AT NEW YORK FOR APRIL-THE CASH REVENUE-SHIPMENTS OF PRODUCE, ETC., ETC.

BEFORE this number of the Magazine reaches the most of our subscribers, the "spring trade" at the centers of commercial business will be over. We allude of course, to the regular jobbing trade through which the bulk of the imported and domestic merchandise is taken for consumption. As a whole it has been unsatisfactory, and far more limited than was anticipated. The opening demand is always from the South. This came forward in due season, and at Philadelphia, Baltimore, New York, and Boston, as well as on a smaller scale at Louisville, Cincinnati, St. Louis, and New Orleans, the early purchases, both of dry goods and general merchandise, were on a liberal scale. The collections were easily made. The merchants at the South had most of them been doing a prosperous trade, and either anticipated the maturity of their obligations, or were ready when the day of payment came. This fair beginning led to extravagant expectations on the part of some in regard to the season's business, but the day of disappointment soon came. The Western trade, as reported in our last, has been smaller than for several years, and the payments were niggardly, This has been less noticeable in the Western cities, whose near-by customers have done better than the average, but at New York and Boston it has been the subject of general complaint. A large amount of dry goods have been forced off by auction, and in other departments of trade there has been either a lethargy or a sacrifice of profit. The fall trade promises to make amends in part, but it will be some time before dealers will fully recover from the effects of this unpropitious season.

Sugar has been very high during the month-higher, if we mistake not, than at any previous date in twenty years. Our readers are of course aware that this is owing to the falling off in the supply, aggravated also by the movements of speculators. The diminution is noticed in various quarters, but is most remarkable in the Louisiana crop. The following is a summary of the yield of Louisiana and Texas sugar during the last ten years :

The falling off during the last year was owing chiefly to two causes, the killing frost of October, 1855, and the hurricane of last August. When we consider that in favorable seasons the production of domestic sugar is equal to nearly onehalf of the entire consumption of the country, the loss of such a proportion of the home crop is seen to be a very serious evil. The receipts from Cuba have been large during the past month, but the importers and speculators are chiefly wealthy