separately excepted to the refusal of the Court to charge the jury as firstly, secondly, and lastly requested to charge. The jury rendered a verdict in favor of the defendant. Plaintiff's counsel made a motion for a new trial on the minutes of the Court, which was denied, and judgment was entered on the verdict in favor of the defendant for costs. The general term of the Superior Court affirmed the judgment, and the plaintiff appealed to this Court.

The decision of this Court when the cause was here the first time, is reported in 21 N. Y. Reports, page 103.

H. H. Burlock, for plaintiff.

A. J. Vanderpoel, for defendant.

June 1863. The opinion of the Court was delivered by BALCOM, J.-The witness, Hallenbeck, had had some experience in mooring vessels, and said he thought he understood it; he stated how the schooner, having the coal in question on board, was moored; and I am of the opinion he was competent to answer the question, "What was the condition of the fastenings of this schooner as to safety?" The business of mooring vessels requires skill to do it properly; but Hallenbeck possessed enough to render his opinion, as to whether the schooner was safely moored, competent evidence, though it certainly was not entitled to much weight, and probably did not have much influence with the jury.

When the cause was in this Court the first time, Judge SELDEN intimated an opinion that the sheriff was responsible for more than ordinary diligence in taking care of the coal; but the Court did not so decide.

According to section 209 of the Code, it was the duty of the sheriff to take the coal, and retain it in his custody; and section 215 required him to keep it in a secure place, and deliver it to the party entitled thereto, who was the plaintiff, after the expiration of three days, as Hoffman did not take any steps for its re-delivery to him pursuant to section 211. But the defendant, as sheriff, did not, under the circumstances, become an insurer of the coal: 21

N. Y. Reports 103.

In Jenner vs. Joliffe, 6 Johns. 9, THOMPSON, J., in delivering the opinion of the Court, said: "If the loss of the timber happened while it was held under the attachment, and without the negligence of the officer, the defendant ought not to be responsible for it." In Browning vs. Hanford, 5 Hill 588, COWEN, J., was of the opinion Justice STORY was right in putting the general liability of officers having the charge of property on the same footing as that of bailees for hire. See Story on Bailments § 130, 3d ed. Edwards says: "A sheriff levying upon goods, must use due diligence to keep them safely to satisfy the execution. But he is not an insurer, and is not, like a common carrier, answerable for a loss of the goods by fire. His capacity as an officer, is not considered as fixing a more rigorous measure of liability upon him than if he were a private person." It seems that the views of this learned author, in regard to the liability of sheriffs having the charge of property, coincide with those of Justice STORY. See Edwards on Bailments 59.

When a sheriff takes goods in execution, or by attachment, or in an action where the plaintiff seeks to recover possession of them, he becomes a bailee for the benefit of all parties interested-certainly for the benefit of the party who sets him in motion; and

where the bailment is beneficial to both parties, as in case of pledging or letting to hire, the bailee must answer for ordinary neglect:" 1 Cowen Tr., 2d ed., 56. A bailee for hire, or where the bailment is beneficial to both parties, must exercise ordinary diligence in taking care of the property he has in trust; which is the care that every person of common prudence, and capable of governing a family, takes of his own concerns. The converse of this is the omission of that care which such a person takes of his own concerns, and is termed ordinary neglect. ments 44.

Edwards on Bail

I am unable to see why a sheriff should be required to exercise any greater diligence in taking care of property in his custody, than a bailee for hire and I am of the opinion the degree of dili. gence each is bound to exercise is the same.

If I am right in this conclusion, the charge was as favorable to

the plaintiff as it should have been. The charge was, that it was the duty of the sheriff to take such steps to insure the safety of the coal, as a careful, prudent man of good sense and judgment, well acquainted with the condition of the schooner, and her location with regard to exposure to storms, and having the power of the sheriff in the matter, might reasonably have been expected to take. had the coal belonged to himself.

The subsequent remarks of the Judge, that if a prudent man in a case of his own vessel, would not have removed her in the storm, the sheriff was not bound to, did not make the charge exceptionable. If the sheriff did as the Judge charged it was his duty to do, he certainly exercised ordinary care in taking care of the coal: and his omission to remove the schooner, if a prudent man would not have done so in the storm, provided she had been his own, was not ordinary neglect. The jury had previously been instructed that the sheriff was bound to know the condition of the schooner, whether it leaked, whether it was seaworthy for the place in which it lay, how deeply laden, everything in regard to it; and that he was bound to put on board of the schooner, if necessary, such men as would pump her out, and keep her in a condition to insure the safety of the coal. This is all a careful, prudent man could have known, or would have done, if he had owned the schooner. And as I understand the charge, it made the sheriff responsible for the alleged negligence of the master and crew of the schooner after he took possession, so far at least as they had anything to do with the schooner or coal; and in this view of the charge, the refusal of the Judge to repeat or state to the jury the second request of the plaintiff's counsel, was not error: for he had already charged the same proposition in legal effect.

The first request of the plaintiff's counsel to charge the jury was rightfully refused, because it was a proposition that the sheriff was bound to take more than ordinary care of the coal, and that if for the want of more than ordinary care the same was lost, he was responsible.

We have nothing to do with the question whether the verdict of the jury was against evidence. The decision of the Court below that it was not, is conclusive upon that point.

These views lead to the conclusion that the judgment of the Superior Court should be affirmed.

DAVIES, J., read an opinion for affirming the judgment.

All the Judges were in favor of affirming the judgment of the Superior Court with costs.

Decision accordingly.

LEGAL MISCELLANY.

The authority of counsel in the management, and more especially in the settlement of a cause, has been the subject of much doubt in England since the famous case of Swinfen vs. Swinfen, 4 L. T. Rep. N. S. 194, and the more general opinion has been, that such authority does not extend to the settlement of a case without express authority from the client. The case of Choun vs. Parrott, however, recently decided by the Court of Common Pleas, (8 Law T. Rep. N. S. 391), has decided in favor of the counsel's power to settle an action, provided he acts reasonably, skilfully, and bona fide, and unless there is an express command of the client to the contrary. This is in accordance with common sense, and has long been regarded as the settled law in the United States.

The mistakes of foreigners in speaking of our institutions, are always amusing, though not often as harmless as that of Baron BRAMWELL, very recently in Waller vs. S. E. Railway Co., 8 L. T. Rep. N. S. 328, where he refers to the late venerable Ch. J. of Massachusetts as Lord Chief Justice SHAW. Of course it was a slip of the tongue with the learned Baron, or perhaps the reporter alone is responsible for it, but the language as well as the learning and feeling of the legal profession in England and this country are so much in common, that we almost forget that the former are foreigners to us, until reminded of the fact by some little incident like the above.

In the last number of the London Law Magazine and Law Review, we have an article on the case of the Alabama, in which the VOL. XI.-44

whole subject is treated with a fulness, ability, and candor, as unexpected as it is gratifying. The writer pays a strong tribute to the manner in which Mr. Adams conducted the affair on his part, the invincible grounds upon which he rested his case, and his dignified and manifest good faith in comparison with the trickery and the uncandid and evasive speeches of Earl Russell and the SolicitorGeneral. The latter, in particular, receives a scorching rebuke for the gross and unworthy inconsistency between his public statements in the House of Commons, and the published correspondence on the subject between Minister Adams and Earl Russell. Truly with the Solicitor-General's misstatements in the Alabama case, and the more recent case of Mr. Roebuck and the Emperor Napoleon, it would seem that veracity in the House of Commons is not of the highest standard. Our readers will pardon us if we give them a very apposite quotation from a speech of Mr. Canning, in the days when British statesmanship was honest and manly at least, which is used with great effect by the writer of the article on which we have been commenting. Said Mr. Canning (Speeches, vol. 5, p. 51, 8 Hansard N. S. 1057), "I do not now pretend to argue in favor of a system of neutrality; but it being declared that we intend to remain neutral, I call upon the House to abide by that declaration, so long as it shall remain unaltered. No matter what ulterior course we may be inclined to adopt; no matter whether, at some ulterior period, the honor and interests of this country may force us into a war; still while we declare ourselves neutral, let us avoid passing the strict line of demarcation. When war comes, if come it must, let us enter into it with all the spirit and energy which become us as a great and independent nation. That period, however, I do not wish to anticipate, much less desire to hasten. If a war must come, let it come in the shape of satisfaction to be demanded for injuries, of rights to be asserted, of interests to be protected, of treaties to be fulfilled. But in God's name let it not come in the paltry, pettifogging way of fitting out ships in our harbors to cruise for gain.

"At all events let the country disdain to be sneaked into a war. Let us abide strictly by our neutrality as long as we mean to ad