Historical outlines of the law. this king, the speaker of the commons was taken in execution in an action of trespass at the suit of the Duke of York, president of the parliament; and after representation of the case to the king and the peers, the latter came to the resolution that the speaker should remain in custody, and the commons acquiescing chose another speaker. On the suject of the chancery, the stat. 15 Hen. 6, c. 4, was passed by which it was enacted, that no writ of subpoena should be granted, until surety was found to satisfy the party grieved, in case the matter of the bill did not prove to be good. The jurisdiction of the Justices of Nisi Prius was enlarged by stat. 24 Hen. 6, c. 1, empowering them to give judgment in all cases of felony and treason, as well upon acquittal as conviction, and to award execution. Before this statute, they could only hear and determine, but not pass judgment. Delays in the proceeding by attaint were prevented by several statues, which put a stop to feigned and foreign pleas. The statute of jeo fails made in the last reign being only of a temporary nature, was extended by 4 Hen. 6, c. 12. It was also enacted by stat. 8 Hen. 6, c. 12, that for error assigned in any record, process, or warrant of attorney, original or judicial writ, pannel, or return in any places of the same rased or interlined or in any addition, substraction or diminution of words, letters titles or parcels of letters found therein, no judgment shall be reversed or record an nulled. Out of this act are excepted all appeals and indictments of treason and felony, and outlawries for the same; nor was it to extend to cases where the substance of the proper names, surnames, or additions were left out in the original writ or writs of exigent. There is an act relating to Attorneys, which deserves some notice for the singularity of the facts it contains. This is stat. 33 Hen. 6, c. 7, which says, that not long since in the city of Norwich, and in the counties of Norfolk and Suffolk, there were only six or eight attorneys at most, coming to the King's courts, in which time great tranquility reigned in those places, and little vexation was occasioned by untrue and foreign suits. But now, says the act, there are in those places four score attorneys, or more, the generality of whom have nothing to live on but their practice, and besides are very ignorant. It complains that they came to markets and fairs, and other places, where there were assemblies of people exhorting, procuring, and aiding persons to attempt untrue and foreign suits for small trespasses, little offences and small sums of money which might be determined in courtsbaron; so that more suits were now raised for malice, than the ends of justice; and courts-baron became less frequented. These are the motives the act states for a reformation; which was, that in future there should be but six common attorneys in the county of Norfolk, the same number in Suffolk, and in the city of Norwich only two; these were to be admitted by the two chief justices, of the most sufficient and best instructed; and persons acting as attornies in those parts without such admission, were subjected to heavy penalties. The provisions made against disseisors by 4 Hen. 4, was by 11 Hen. 6, c. 3, made applicable to all writs grounded upon novel disseisin, so that the pernor of profits, as he was called, was made liable in the same manner as if he had been legally seized of the freehold. In assizes of novel disseisin, the sheriff being sometimes named a disseisor, to the end that the writ might be directed to the coroner and the assize, secretly awarded upon the tenant's default, it was by stat. 4 Hen. 6, c. 2, enacted upon the tenant's averrment thereof, the writ was to be quashed, and the plaintiff amerced. By stat. 30 Hen. 6, c. 1, executors were empowered to issue a writ of proclamation out of chancery against servants who should, on the death of their masters, violently and riotously seize the goods of their master, which appears to have been a frequent practice about this time. Formerly the embezzling records was only punishable by imprisonment, it was now by stat. 8 Hen. 6, c. 12 made felony. A practice appears to have prevailed of sending threatening letters to persons, that if money was not deposited in certain places, their houses would be burnt; this was by 6 Hen. 6, c. 6, made treason. It was declared however, in order that the landholders should not be prejudiced, that the forfeiture should be saved to the lords, as in cases of felony. THE New-York Begal Observer. VOL. III. NEW-YORK, APRIL 15, 1844. MARITIME LAW. ARTICLE I. COLLISION OF SHIPS. WHENEVER one vessel does damage to another within the admiralty and maritime jurisdiction, the offending vessel becomes hypothecated to the vessel and cargo sustaining the injury, to repair the damages occasioned by the collision. The injured persons have a lien or privilege upon the guilty property by the general maritime law of nations, to the extent of the injury sustained; and they may pursue and enforce their remedy in the courts of admiralty jurisdiction, by attachment, condemnation, and sale, to pay damages and costs. No. 4. Second. A misfortune of this kind may arise where both parties are to blamewhere there has been a want of due diligence or of skill on both sides. In such a case, the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both of them. Third. It may happen by the misconduct of the suffering party only, and then the rule is, that the sufferer must bear his own burthen. Fourth. It may have been the fault of the ship which ran the other down, and in this case, the injured party would be en. titled to an entire compensation from the other. There is often great difficulty in determining the facts of each particular case, arising sometimes from the darkness of the night, or the danger and violence of a storm, or the confusion of the moment, and from a want of observation; and frequently from the strong and almost over In the discussion of this subject, we apply the term collision to all cases of vessels running foul, though the terms allision and collision are not exactly sy-powering motives of interest, personal nonymous. The term allision applies to the act of one vessel striking against another; and the term collision, to the act of two vessels striking together. But the inquiry upon a claim for damages, in such cases, is not so much whether either ship be active or passive, as whether the act was occasioned by accident, or by the negligence or the design of one or both of them. Sir William Scott, in pronouncing judgment in the case of Woodrop Sims, says there are four possibilities under which a collision may occur: First. It may happen without blame being imputable to either party; as where the loss is occasioned by a storm, or any other vis major. In that case, the misfortune must be borne by the party on whom it happens to light, the other not being responsible to him in any degree. * 2 Dodson's Admiralty Rep. 85. vanity, party feeling, and strong bias of witnesses. The master and crew of each vessel are generally the only witnesses in the case, and, from necessity,† they are often used as witnesses in a court which tries the controversy; although the witnesses may stand in a situation of direct interest in the cause, and the result of it. Each side often represent the transaction most favourably to themselves, and endeavour to throw all the blame upon their opponents; this renders the whole investigation the most perplexing and unsatis factory which can be brought into a court of justice. Care, attention, vigilance, and philosophical knowledge is required of counsel who conduct such proceedings; and a person practically acquainted with navigation has a decided advantage over an opponent who is deficient in that branch of knowledge. The court, too † 2 Haggard's Rep. 145. Catharine, of Dover. Maritime Law.-Collision of Ships. frequently has to decide upon great di- In cases of collision, it is often the practice in the Court of Admiralty in England, to call in to the assistance of the judge, who tries the cause, one or more experienced navigators of the association of the Trinity House. These persons are called Trinity-masters, who, after hearing the evidence given in the cause, and the arguments of the advocates for the respective parties, are called upon to express their opinion upon the merits of the case; and as they pronounce their opinion, the judge generally renders his sentence of condemnation or acquittal. The courts in the United States have the aid of experienced ship-masters and navigators, who are sworn as witnesses in the case, and their opinions, very justly, have their weight and influence with the court in making up its decree. Damage in cases of collision of ships, or in running foul, may be reduced to three classes:— First. By design. Third. By accident, and this is called a peril of the sea. All known maritime laws compel the wrong-doer to make reparation in the two first cases. There are certain rules of navigation which have been adopted by the courts of different nations as positive law, to govern cases litigated before them: First. The vessel that has had the wind free, must make way for the vessel that is close hauled. Second. The vessel on the starboard tack has a right to keep her wind, and the vessel on the larboard tack is bound to bear up or heave about, to avoid danger, or be answerable for the consequences. Third. The vessel to the windward is to keep away when both vessels are going the same course in a narrow channel, and there is danger of running foul of each other. Fourth. A steamboat is generally deemed as sailing with a free and fair wind, and therefore is bound to do whatever a common vessel going free or with a fair wind, would, under similar circumstances, be required to do in relation to any other vessels which it meets in the course of its navigation; and as steamboats receive their impetus from steam, and not from sails, and are capable of being kept under better command, they ought always to give way in favor of vessels using sails only,* all other circumstances being equal. Fifth. The master of a vessel, entering a port or river where other vessels are lying at anchor, is bound to make use of all proper checks, to stop the headway of his vessel, in order to prevent accidents; and if, from want of such precautions, a loss ensue, he and his owners are responsible. Sixth. So it is held, that if two vessels, or ships of unequal size, are in the same stream, the less must give way to the greater. * Story on Bailments, p. 386. Practical Points--Dissolution of Partnership. Seventh. So a ship clearing out of a harbor must make way for another vessel that enters. Eighth. Where two ships are clearing out of a harbor, the hindermost ship must have care to the one putting out before her.* The question in all cases of collision is, whether proper measures of precaution have been taken by the vessel which has unfortunately run down the other. This is a question partly of nautical usage, and partly of nautical skill. If all the usual and customary precautions are taken, then it is treated as an accident, and. the vessel is exonerated; if otherwise, then the offending vessel and its owners are deemed responsible. Indeed, all rules are held subordinate to the rule prescribed by common sense; which is, that one vessel shall keep clear of another when she has the power to do so, notwithstanding one vessel may have taken a course not conformable to established usages. A case can scarcely be imagined in which it would be justifiable to persist in a course after it had become evident that collision would ensue, if, by changing such course, without injury, the collision could be avoided; and where vessels are sailing on the wind, and approaching each other, and one vessel is so far windward on the larboard tack, that if both keep their course, the other will strike her on the lee side abaft the beam or near the stern, in such a case the vessel on the starboard tack, contrary to the rule laid down above in the second division of this subject, must give way, because she can do it with greater facility and less loss of time and distance than the other. And in the case of a collision, tried before Sir William Scott, judge of the Court of Admiralty in England, it appeared that a fishing-smack, called the John and Mary, had been run down by the sloop Thames off the port of Great Yarmouth, steering about north north-east and hauled close to the wind, with a fresh breeze from the northwest by north; and the sloop Thames was sailing at that time to the southward, with the wind free and drove against the fishing-smack, and struck her with such violence on her starboard bow that she soon after sunk and was totally lost, with her cargo and fishing apparatus on board. A Trinity-master was called in to assist the learned judge in the hearing of the cause, and he gave it as his opinion that, upon the testimony, it appeared that the Thames wanted to obtain information from the fishing smack, and to take in some herrings from her. He said that the Thames did not act in a seaman-like manner for this purpose; that in attempting this object it did not appear that the Thames ever altered sail, but ran down upon the fishing vessel. He said the Thames should have put about, by which means all danger would have been avoided. That it appeared to him, that the loss had been occasioned by the bold manœuvre of the Thames in attempting to run all at once along side of the fishing-smack, which did not appear to have altered her course. That the particular manner in which the blow was stated to have been received, on the starboard bow of, the smack from the larboard bow of the Thames, could not have happened whilst the vessel was passing, unless owing to the improper course and directions in which the Thames was steered. That it appeared to him that the accident was owing to the unseamanlike manner in which the Thames was navigated. The court, in this case, after Captain Hubdart, the Trinity-master, had given in his opinion, proceeded to pronounce a decree against the owner of the Thames, for full damages sustained by the libellant, and for his costs. The pleadings in this case showed a great diversity of statement, and the facts were contradictory from the witnesses. A. N. PRACTICAL POINTS. DISSOLUTION OF PARTNERSHIP. THERE are some cases in which a Court of Equity will dissolve a partnership Supreme Court, N. Y.-Meuir v. Hinman. during the term for which it is stipulated. | with benefit to either party. The neglect Such a dissolution has been granted on to account for the 50l, sent from Liveraccount of the impracticability of car- pool, in August, 1840; the application rying on the undertaking, either at all, of the 541. received from Mrs. Eliason to or according to the stipulations of the ar- the payment of his private debts; the reticles. Baring v. Dix, (1 Cox, 213.) fusal to sign office checks till he had preWaters v. Taylor, (2 Ves. and B. 299.) vailed on the plaintiff to sign a check for It may also be granted on account of the his personal use, the refusal to sign a insanity or permanent incapacity of one of check for the proctor's bill, and the transthe partners. Waters v. Taylor, ubi sup. mission of the proctor's letter to some, And it may be granted on account of the however few, of the creditors of the partgross misconduct of one or more of the nership, with a letter of his own, so expartners. Marshall v. Colman, (2 Jac. pressed as to be manifestly injurious to and W. 300;) Goodman v. Whitcomb, the partnership: and his conduct as to the (1 Jac. and W. 494.) But trifling faults 5561. remitted to the partnership for the and misbehaviour, which do not go to the purpose of making a specific payment, substance of the contract, do not con- | appear to me, all of them, to be inconstitute a sufficient ground to justify a sistent with the duty of a partner, and of decree for a dissolution. In a recent case a nature to destroy the mutual confidence Lord Langdale, M. R. decreed a dissolu- which ought to subsist between them. tion where a partner acted inconsistently These acts and others referred to in the with his duty as such, and of a nature to affidavits are not disproved or satisfactodestroy the mutual confidence which rily explained by the defendants, and ought to subsist between parties, and being such as if proved at the hearing which made it impossible that the busi- would, in my opinion, entitle the plaintiff ness could be conducted in partnership to a dissolution, appear to me to be suffi with benefit to either party. "The trans- cient to entitle him to the order which he actions," said his Lordship, "with each now asks." Order for injunction, and reother, cannot be considered merely with ceiver granted. Smith v. Jeyes, (4 Bea, reference to the express contract between 503.) See also Richards v. Davies, (2 them. The duties and obligations arising Russ. and M. 317.) from the relation between the parties are regulated by the express contract between them, so far as the express contract extends and continues in force; but if the express contract, or so much of it as continues in force, does not reach to all those duties and obligations, they are implied. and enforced by the law. Crawshay v. Collins, (15 Ves. 226.) And it is often matter to be collected and inferred from the conduct and practice of the parties whether they have held themselves, ought, or ought not to be held bound by the particular provisions contained in their express agreement. When it is in- PROMISSORY sisted that the conduct of one partner entitles the other to a dissolution, we must consider not merely the specific terms of the express contract, but also the duties and obligations which are implied in every partnership contract, and upon the evidence produced on the occasion of this motion (for a receiver) it appears to me that the conduct of Mr. Jeyes has been such as to make it impossible that the business can be conducted in partnership SUPREME COURT, supreme court of the State of New York. Before the Hon. SAMUEL NELSON, C. J., and Judges BRONSON and COWEN. JAMES MEUIR V. NOAH HINMAN. October Term 1843. NOTE EVIDENCE. COMPEPETENCY OF WITNESS. Where the Plaintiff claimed to have acquired property in a promissory note by delivery from J. H. the widow of the payee, to whom the plaintiff alledged it had been passed by delivery from the payee as a donatio mortis causa; and on the trial this question was submitted to the Jury. Held that no notice could be taken of it Where a gift donatio mortis causa is proved, the by the Court on bill of exceptions. question whether the Testator revoked it is not evidence for the consideration of a Jury. |