exercise of his discretion leave part of the goods behind, and his owner thereby loses freight pro tanto, that he can throw that loss on the underwriter. This being the opinion of the Court, the rule must be made absolute for setting aside the award.'

The point here decided is said by the court to be new, and as far as may be gathered from the report, their examination of analogous cases did not take a very wide range. The judgment may, however, be right, notwithstanding; but if it is the result of the decision, that in such a case the ship-owner, in consequence of a peril of the seas, loses his right to recover the freight from the shipper, and at the same time cannot claim indemnity from the underwriter on freight, the doctrine requires some consideration, to which it is the more entitled, as the case is one likely to be of not very unfrequent occurrence. Loss of freight may be occasioned either by damage or loss of the ship by which, or the goods on which it is to be earned. Phil. Ins. 288, 290, 427. It is generally true at least that if either of those subjects be so injured by the perils insured against as to prevent the earning of freight, the underwriters on this last subject are liable to make indemnity. A decision has been given in Massachusetts on a case somewhat analogous; namely, Clark v. Mass. F. & M. Ins. Co. 2 Pickering 104. The freight of tobacco was insured for a voyage from Richmond, in Virginia, to Nice, in France. The vessel was compelled, by stress of weather and sea damage, to put into the port of Kennebunk, in Maine, where she arrived on the 9th of Sept. 1821; and it was found on survey that a detention of about two months would be necessary, in order to repair the vessel. The shippers of the tobacco intended it for the concours at the place of destination, which was to be in November, and if the tobacco should be detained for the repairs of the ship, they would lose the chance of a sale, and the object of the voyage, as far as the shipment of the tobacco was concerned, would be defeated. They, therefore, demanded that the tobacco should be delivered to them by the master, they agreeing to pay whatever freight, if any, was due; and said in case of the master's refusing to deliver it, they should leave it on his hands, and look to him for damages. Under these circumstances the master gave up the cargo, a part of which was shipped by another vessel to Nice, and the rest, being damaged by sea water, to Boston, for sale

there, not being in a fit condition to be sent on to Nice. The question was whether this was a total loss of the freight under a policy upon that interest; that is, whether by a peril of the sea, the vessel had been prevented from earning freight by the transportation of the cargo and delivery of it at the port of destination. The ground assumed by the plaintiff's counsel was, that the master had a right to detain the cargo a reasonable time for the purpose of repairing the vessel, but if the repairs could not be made within a reasonable time, he was bound either to forward the cargo by another vessel, or deliver it to the shipper, and renounce his claim for freight. The reshipment in this case in another vessel by the master would have been of no advantage to him, as the freight was the same from Kennebunk, as from Richmond. The whole case was, therefore, put upon the question of what was a reasonable time of delay to repair, and the opinion of the court, delivered by Mr. Justice Putnam, was, that considering the length of the voyage, the delay in this case for repairs would not have been unreasonable, and that the master had a right to detain the cargo while the repairs were making, and so accordingly, if he had lost the freight, it was not by the perils insured against, but in consequence of giving up the cargo to the shippers.

The judge, in giving the opinion in this case, examines numerous authorities on the subject of what is reasonable delay for repairs. In Griswold v. the New York Ins. Co. 1 Johns. R. 285; 3 Johns. R. 321; a delay of seventeen days for repairs, on a voyage from New York to Barcelona, is considered a trifling delay. In Palmer v. Lorrillard, 16 Johns. R. 348, tobacco was shipped in Richmond, in February, for New York. The master put back for Richmond on account of the blockade of the Chesapeake, which would have exposed him to certain capture had he proceeded. The shipper demanded, in September following, that the tobacco should be delivered up to him at Richmond, as it was uncertain how long the vessel would be detained, and this, he contended, dissolved the contract of affraightment. But the master refused to deliver the cargo, except on being paid full freight. After this demand on the part of the shipper, the vessel was sunk in a storm, and the shippers brought a suit against the ship-owners for the damage. The court held that the master was justified in detaining the

cargo, and accordingly it results from that decision that there had not then been a total loss of freight. In the arguments and opinions in this case, the authorities bearing upon this subject are very fully examined.

But these cases refer to what shall be considered a reasonable and justifiable delay of the cargo for the benefit of the ship, that is, to enable the ship to earn freight. The question we are considering is, whether the ship is bound to delay any time, and if so, what time, in any supposed voyage and circumstances, that the cargo, having received damage by the perils insured. against, may be restored to a condition fit to proceed on the voyage. This restoration of the cargo to a proper condition for transportation is very analogous to repairs of the ship, but it does not follow thence that the obligations in respect to delay are reciprocal. The case of Griswold v. the New York Ins. Co. 1 Johns. R. 205, 3 id. 321, approximates to this question : it was an insurance on freight of a cargo of flour from Barcelona, and the ship, after sailing, having been stranded on Long Island, put back for repairs, which were made in a 'few,' that is, seventeen days; but the flour was found to be so much damaged in consequence of the stranding, that it was unfit to be reshipped, and if it had been reshipped and carried to Barcelona, would not there have been worth the freight. It was sold in New York for about double the amount of freight. Mr. Chief Justice Kent said the assured had a right, on refitting the ship in due season, to insist on taking the cargo or be paid their full freight. Whether it would have been wise or foolish in the shipper to have sent on the flour, in the condition it was in, was a question not to be met by the assured. It was none of his concern.'

The distinction between this case and that of Mordy v. Jones is, that in the latter there was danger of spontaneous ignition, if the goods should have been reshipped. The question resolves itself into this turn: Suppose, in the course of the voyage, the goods are so damaged by the perils of the seas that they cannot be kept on board without imminent danger of ignition, and no intermediate port being near, the master throws them overboard, is this a total loss of the goods and the loss of the freight upon them? That it would be a loss of both we cannot imagine there is any doubt. And if we suppose an intermediate port

near to the course of the voyage at which the master put in for the purpose of landing the goods, will this make any difference? In the above case of the flour nothing is said of delay to dry it, that it might be in a fit state to be reshipped. Perhaps this would have been impracticable at New York; but whether it would have been so or not, the language of the court is, that the owner of the ship has no concern with the question. It is, according to that case, only requisite on his part to be ready to transport the goods. But, whether by reason of fire or water, or any other peril insured against, if they cannot be transported until they are restored from their damaged condition, or, in a sort, remanufactured, unless he is bound to wait until the necessary processes for this purpose can be gone through with, he has lost his freight. We doubt very much whether cases can be found in support of the doctrine, that in such a case the shipper has the right to require the master to delay any considerable time for the purpose of restoring the goods to a suitable condition for transportation. The cases of capture and detention of the cargo are analogous, and in Stoker v. Harris, 3 Mass. R. 409, it is held that the master may delay for the purpose of claiming the cargo, that is, so far as reasonable delay for this purpose is not a deviation. And if we go still farther, as perhaps on examination some of the cases will be found to go, and hold that the master ought to delay a reasonable time for the release of the cargo, where there is a prospect of its release within such time, and that the claim on the underwriters for a loss of freight by capture and the detention of the cargo might be affected by his neglecting to delay reasonable time, it would not fully support the case of Mordy v. Jones, since the time during which the master must have delayed, that the goods might be dried, was certainly unreasonable, as the expense of the delay would have exceeded the amount of freight. In case of the damaged goods belonging to one of the shippers, the others would have a right to complain of such delay.

For these reasons, we cannot but think there is some ground to hesitate to assent to that decision.

DIGEST OF RECENT DECISIONS.

Digest of the principal cases in

6 PETERS'S REPORTS of Cases in the Supreme Court of the United States, 1832.

7 WENDELL'S REPORTS of Cases in the Supreme Court and Court of Errors in New York, from May 1831 to May 1832.

1 MINOR'S REPORTS of Cases in the Supreme Court of Alabama, from May 1820 to July 1826.

ACTION.

1. Where money is wrongfully and illegally exacted, it is received without any legal right or authority to receive it; and the law, at the very time of payment, creates the obligation to refund it. A notice to recover back the money does not even in such cases create the right to recover it back; that results from the illegal exaction of it: and the notice may serve to rebut the inference that it was a voluntary payment, or made through mistake. The Bank of the United States v. The Bank of Washington, 6 Peters, 8.

2. Under the act of the legislature of North Carolina, in force in Tennessee, the endorsee of a promissory note may bring an action of debt on a promissory note held by him. Kirkham v. Hamilton, 6 Peters, 20.

3. The payees of a promissory note drawn in Tennessee, having, before the note became due, removed to Alabama, could have prosecuted a suit on the note in the circuit court of the United States for the district of Tennessee; and the endorsees of the note were entitled to sustain a suit in that court, under the eleventh section of the judiciary act of 1789. 16. 4. A justice of the peace who grants an adjournment to a plaintiff not entitled to it, and subsequently renders judgment, and issues execution, on which the property of the defendant is sold, cannot be sued as a trespasser. Horton v. Auchmoody, 7 Wend. 200. 5. Where a justice acts without acquiring jurisdiction, he is a