and the facts relied upon to show his alleged misconduct sufficiently appear from the testimony of the other witnesses.

The principal cause of forfeiture insisted upon is the alleged misconduct of Arey at St. Michael. When blown off by stress of weather from the island, it is said that it was his duty to bring the vessel back and restore the command to the master, and that the condition of the vessel and the state of the weather being such as to render this practicable, if not clearly the safest and most prudent course to be taken, his determination to bear away for the distant isle of St. Thomas, can reasonably be accounted for on no other supposition than a determination to leave the master, and assume for the remainder of the voyage the command himself. If such was the fact it was a gross violation of duty, and the lightest penalty with which it ought to be visited would be a forfeiture of his wages.

Two experienced shipmasters were examined as experts on this question; and with all the facts explained to them, with respect to the condition of the ship and the state of the weather, they expressed a clear opinion that the vessel might with safety have been carried back to the island, and that a judicious and prudent navigator would have done this rather than bear away for a distant port as that of St. Thomas. Their opinion is, undoubtedly, entitled to much consideration, but it cannot, even admitting its correctness, be held to be decisive of the present

case.

The question here is not precisely, whether this on the whole was the most advisable and prudent course to be taken, but whether it was so clearly and manifestly so, that no man of ordinary judgment could have mistaken it. Arey, like every other man, is entitled to the ordinary presumption in his favor, that he has acted fairly and honestly, until this is overcome by satisfactory evidence. But Arey also, like every other man who offers himself for a particular service, engages and pledges himself both for his competency and his fidelity. A mate may be degraded and put before the mast, as well for want of skill as for want of faithfulness. And we are bound to suppose that he had a reasonable degree of skill and experience in seamanship and navigation to enable him to take the command and manage the vessel on the happening of any casualty which separated the master from the ship. This is one of the contingencies that is contemplated by his contract.

Up to this time the conduct of the mate seems to have been entirely unexceptionable, and we are not justified in imputing to him wilful misconduct, on doubtful and inconclusive evidence. By a casualty, for which no blame attached to him, he was left in the command of the vessel, and was obliged to act under trying circumstances, and such as involved considerable danger. Taking all the evidence together, it appears to me that there was but one of two courses which could with propriety be taken: either to return to the island and rejoin the master, or bear away for a West India port. Had he attempted to return and the weather continued as it had been for the preceding fortnight or three weeks, the vessel and the lives of all on board would have been exposed to no inconsiderable danger. The brig had, during the whole voyage, leaked badly, and she had shown herself unfit to contend with tempestuous weather. By steering for St. Thomas, it was known that in a short time she would take the trade winds, when the wind would be in their favor, with an assurance of favorable weather. They might then with confidence calculate on saving themselves and the ship. We have the opinion of two respectable and experienced shipmasters, that, under all the circumstances, the proper course would have been to return to the island. Arey chose the other. If it be admitted that the opinion of the shipmasters is the most probable, is the case so clear as to leave no room for an honest difference of opinion; so clear that we are driven to impute the conduct of the mate to dishonest and fraudulent motives? I think not. Granting that it might have been more judicious to have attempted to return to the island, the determination of Arey to proceed to St. Thomas, at the worst was but an error of judgment, and such an error as it would be very harsh to ascribe to a fraudulent and dishonest purpose.

In procuring the repairs to be done at St. Thomas, I see nothing in the evidence that gives a serious countenance to the charge of fraud. The expense was probably somewhat more than the same labor and materials would have cost in her home port, perhaps something more than would have been the cost if the owner had been present to superintend the repairs. But this is, I presume, not unfrequently the case when vessels are repaired under such circumstances. On the whole, I find nothing in the mate's conduct which will justify the court in refusing to him his wages; but they are allowed on the contract price, and nothing can be given, in this case, extra for his service as master.

ACTION OF COVENANT WHEN ON AN AWARD OF REFEREES.

In the Supreme Judicial Court of Massachusetts, March Term, 1852. Azor Maynard vs. Jabez Frederick.

This was an action of covenant, broken on an award for $220 87, with interest and the costs of reference, amounting to $15, rendered under a submission, the material portions of which are as follows:

"Know all men hereby, that whereas Azor Maynard and Jabez Frederick, both of Boston, in the county of Suffolk, have heretofore had trades and dealings together, and trade and dealings with other persons, in which they were interested, or however otherwise; and, whereas there exists a difference of opinion as to the just and equitable rights of each, relative to, or in matters growing out of, said trade and dealings, or however otherwise: Now, therefore, in order that a just and equitable settlement shall be made between the said Maynard and the said Frederick, and the true balance of account which shall be due from one to the other, if any, shall be determined, the said Maynard and Frederick agree to submit all matters in dispute, touching the trade and business hereinbefore referred to, or however otherwise, to the arbitration and determination of Thomas Lord, Reuben Lovejoy and Seth Whittier, all of whom are mutually chosen and agreed upon as referees, by the said Maynard and said Frederick, and the said M. and F. agree to appear before the said referees, with such evidence as they shall consider expedient, and will give evidence before said referees, of all matters relating to said matters submitted to them.

And after hearing the parties, &c., and the evidence they or either of them shall produce, the said referees shall proceed to consider the matters and the evidence, and shall make up an award in dollars and cents in favor of the one or the other, if, upon the whole, they shall consider that any sum is or shall be due from the one of said parties to the other; which award, so to be made up by said referees, or by a majority of them, shall be final and binding upon both of said parties, and shall be in full settlement and discharge from one to the other, of and concerning, and in respect to their said trade and dealings, from the commencement thereof to the date of this agreement, &c., &c." Dated July 8,

1847.

The award was signed by Lord and Whittier only, and at the trial in the Court of Common Pleas, before Wells, C. J., it was proved, 1st. That no oath was administered to the witnesses who testified before the referees; 2d. That one of the referees refused to agree to or sign the award; 3d. That at the last meeting, at which all three were present, Lord, the chairman drew up the award and signed it; Lovejoy refused to sign, and Whittier declined to sign it then, alleging that Lovejoy's refusal made it necessary for him to give the subject more consideration; that a day or two after, a messenger called and asked him to go to Lord's; he went, conversed with Lord about it, and then signed it, Lovejoy not being present or notified of the meeting. This evidence, however, was controverted by the plaintiff, who introduced evidence tending to show that, at said meeting, two of the referees agreed upon the award to be made, and thereupon the chairman drew it up and signed it; that Lovejoy refused to sign it, and Whittier said, in consequence of this refusal, he would take time to consider. The referees separated, and upon reflection Whittier decided to sign it, and upon request to go to Lord's place of business for this purpose, went and signed, in

pursuance of his previous determination, without being influenced by any sugges tion then made; 4th, that it was sent to Lovejoy, who refused to sign; 5th. That in making their award, the arbitrators went behind the following receipt which had passed between the parties.

"$200. Received of Azor Maynard, two hundred wharf to April 1st; also in full of all demands to date. (Signed)

dollars in full for rent of Boston, April 1, 1847. JABEZ FREDERICK."

And the defendant contended that the award should be set aside: Because, 1. The witnesses should have been sworn, by the terms of the submission. 2. The award should have been unanimous. 3. The award, as Whittier signed under the influence of Lord, at a meeting where Lovejoy was not present, and of which he was not notified, was inconsistent with law and with the terms of the submission. 4. There was not sufficient evidence that the award was submitted to Lovejoy, which was necessary. 5. The referees exceeded the submission by going behind the receipt.

But the court ruled that it was not necessary to administer an oath to the witnesses, nor that the award should be unanimous; that it was necessary for a majority of the referees to agree upon the award at a regular meeting, and if then agreed upon, reduced to writing and signed by one of the assenting arbitrators, and the other, who had previously agreed to it, took some time to reflect, and after reflection decided to adhere to his original determination, and then voluntarily, and without being influenced by any one, signed the award, it would be valid, so far as this objection was concerned; that it was necessary that Lovejoy should have been notified to be present when the award was agreed upon, and it was left to the jury, whether he was notified or present, or had reasonable opportunity to assent or object to the award; and that the arbitrators, if it was necessary, in their opinion, to affect a just settlement between the parties, might go behind the receipt.

The jury returned a verdict for the plaintiff, and the defendant excepted to the foregoing rulings. He also maintained in this court, that the arbitrators had no power to award costs, and that the award was vitiated by including them. C. T. Russell for the plaintiff. J. C. Park for the defendant. The opinion of the court was delivered by BIGELOW, J.

The award is not invalidated by the omission to administer an oath to the witnesses. References are not bound by the strict rules of evidence applied in courts; they may, for example, examine interested witnesses. And however this might be, the defendant cannot be permitted to stand by when such a course is adopted, and afterwards object to it. His permitting it, sub silentio, is a waiver of any objection. It is urged that there was no consultation among the arbitrators, but this is not supported by facts, and is overthrown by the finding of the jury, who were instructed that it was necessary a majority should agree upon the award at a regular meeting. The jury have found that there was such a meeting, at which a majority did agree. But it is said that one of the referees refused to sign the award; this was of no consequence; if the majority had power to determine the matter submitted, and he refused to act, it was competent for them to meet alone. Carpenter vs. Wood, 1 Met. 409. It is further argued that no one asked for time. But he had agreed to the award; no further consideration was necessary, unless he changed his mind, and nothing was wanting but his sig nature.

That the award was signed by a majority only, would be sufficient to avoid it, were it not for the express agreement that it should be binding if "made up by said referees, or a majority of them. Towne vs. Jaquith, 6 Mass. 46.

The right of the referees to go behind the receipt of April 1st, depends on the agreement of submission, which comprises "all matters in dispute, touching the trade and business hereinbefore referred to, or however otherwise," while the award was to be "in full settlement and discharge, concerning the said trade and dealings, from the commencement thereof to the date of the agreement," the trade and dealings being described as such as they had " heretofore" had together,

&c., &c. Under this submission, it was competent for the arbitrators to go behind the receipt. There was no limit as to time, and they were not restricted to matters subsequent to its date. The receipt was not in itself conclusive, if erroneous from fraud or mistake, and it would be a much stronger objection to the award if they had refused to go behind it, under such circumstances, than that they disregarded it.

The objection that the arbitrators had no power to award costs, is well taken, so far as it affects that part of the award, which is bad only for so much as is thus awarded. The plaintiff may remit the costs, and have judgment for the remainder. The other exceptions are overruled, and the costs being remitted, judgment may be entered on the verdict for the plaintiff.

CREDIT OBTAINED FOR GOODS BY ALLEGED FRAUD.

In the Court of Common Pleas, (Cincinnati, Ohio, June 7, 1852,) before Judge Piatt.

perA bill was

McCoy et al. vs. Perkins, Woodruff et al. In this case Perkins, as is alleged, obtained by fraud credit for a large amount of goods, ($18,000,) and in completion of previous design, is arrested in the act of disposing of them to various sons, to whose stores, in the night season, he is delivering them. filed, upon which an injunction was allowed and a receiver appointed. The argument arose upon a motion to dissolve the injunction so far as C. S. Woodruff, the auctioneer, was considered, upon the ground that he was an innocent purchaser from Perkins.

Judge Piatt held, that an allegation set forth that "defendant fraudulently sold and disposed of goods for the purpose of defrauding his creditors, to a person well knowing the intent," brought the case within the meaning of the statute passed March 14, 1831, directing the mode of proceeding in chancery, which reads, that if any one is about to convey, assign, conceal, or dispose of his property with intent," &c., as such actually perpetrated, is more positively within the meaning of the statute than when it is only intended.

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Judge Piatt remarked that this was one of a class which is tending to cast shame upon the good name of the merchant, and if permitted to go unpunished, bring our courts into contempt. Debts are contracted under various pretenses for the sole purpose of fraud, and collectors come among us in the shape of sheriffs, to be satisfied by writs of habeas corpus. This is one of the most striking instances. It is not sought to be denied that Perkins, from the start, intended to swindle, and among those receivers of, I could almost say, stolen goods, I am asked to discriminate in favor of Woodruff, and why? Can any one look at the facts, as exhibited, and believe him an innocent purchaser? To think so, we must consider him devoid of all prudence or common sense. He purchases goods to the amount of $8,000 upon an invoice furnished, as he claims, by a total stranger, and at a moment's notice. Yet how does this agree with the fact that he consults his counsel as to the nature of the writings, and secures a witness to the payment of $3,000. He cannot take time, or use ordinary prudence in examining the stock he purchases, yet he advises over an ordinary bill of sale, and takes counsel upon a note of hand. He has sufficient caution and foresight to come into this court armed, apparently, at all points. He must have anticipated a storm somewhere, for he shields himself behind Mr. Blackburn's well known character, by making that person an innocent witness of the sale.

It is difficult to say how Woodruff could have got to the store of Wm. Perkins without being warned. The place is fairly hedged in by information. Eshelby, looking from his shoe store over the way, sees rascality; Rooney, a very quiet man, knows all about it; the sheriff is on guard, and creditors are besieging the premises-yet Woodruff goes and comes in entire ignorance.

I can well understand why Perkins should be swift. The creditors, headed by the officers, are close upon his heels--they drive him into Woodruff's auction store, and he has no time for delay. But what is the trouble with Woodruff? Why should he lose all presence of mind and prudence? It may be that, in his

anxiety to secure a great bargain, he forgot himself, but the evidence does not so indicate. I believe there was a combination between the parties, and so believing, will sustain the injunction.

COMMERCIAL CHRONICLE AND REVIEW.

GENERAL ACTIVITY IN COMMERCIAL AFFAIRS-RAPID INCREASE IN THE AMOUNT OF STOCKS AND BONDS THROWN UPON THE MARKET-NEW ORLEANS CONSOLIDATED LOAN-CONTINUED EASE IN THE MONEY MARKET-QUARTERLY RETURNS OF THE NEW YORK BANKS-GENERAL BANKING LAW OF CONNECTICUT-DEPOSITS AND COINAGE AT UNITED STATES MINTS FOR JUNE-COMMERCE OF THE UNITED STATES FOR THE FISCAL YEAR-LAWS OF TRADE BETTER THAN HUMAN LEGISLATION, ILLUSTRATED BY THE REGULAR SUPPLY OF THE NECESSARIES OF LIFE-IMPORTS AT NEW YORK FOR THE FISCAL YEAR-COMPARATIVE IMPORTS OF DRY GOODS FOR THE SAME PERIOD, SHOWING THE DESCRIPTION OF FABRICS RECEIVED-COMPARATIVE RECEIPTS OF CASH DUTIES FOR THREE YEARS EXPORTS FROM NEW YORK FOR THE FISCAL YEAR-COMPARATIVE EXPORTS OF LEADING ARTICLES OF PRODUCE-FRAUDULENT ASSOCIATIONS.

THE Review for this month is usually uninteresting, from the fact that many active business men are absent from the great commercial centers, seeking recreation in the country or at some fashionable retreat. Not unfrequently also, the cholera or some other devastating epidemic has made its appearance and hurried away those who would else have lingered in the haunts of business. But the present summer has been comparatively healthy in the large cities, and, although there has been much bustling to and fro, and many departures, the regular routine of commercial affairs has been less interrupted than usual. Capital is still freely offered, and at lower rates of interest. The disturbance among the fisherman has caused a cloud on our north-eastern horizon, to which the timid have occasionally turned a furtive glance, but there has been no general apprehension of any serious difficulty. Large amounts of stocks and bonds are created almost daily, and thrown upon the market, which seems to suit its capacity to the quantity offering. We have been frequently asked to give our opinion in regard to the security of such investments, but could not do so without making invidious distinctions. Should our national prosperity be uninter rupted, it is probable that nearly all of the companies who have thus borrowed a portion of their capital, will be able to pay the interest promptly. Most of the bonds thus introduced, propose 7 per cent as the rate of interest, and have been negotiated, or sold by auction without very material depreciation. The Milwaukee and Mississippi bear 8 per cent interest, and were taken at an average of 96.36. They are now held at par, and are slowly, but surely, gaining in public estimation. The city of New Orleans called for proposals for a loan of $2,000,000, the proceeds to be applied to the extinguishment of the present floating liabilities of the first, second, and third municipalities, and the city of Lafayette, which are united under one financial government. The bonds bear interest at the rate of 6 per cent per annum, and are secured by a most ample provision for the payment of both principal and interest. The bids were opened at the office of Messrs. Corning & Co., in the city of New York, on the 19th of July. It was generally supposed that the stigma of repudiation, which has been fastened upon State securities in that quarter, would operate against the bonds