Smith et al. v. Condry.

deciding the case, the court expressed their opinions on the two statutes of Geo. 3, before mentioned, in cases where pilots were required to be on board; and held that the provisions of the 52 Geo. 3, exempting masters and owners from liability, did not extend to cases embraced by the local pilot act for Liverpool; and strongly intimated that there was a distinction between the obligation to take a pilot under a penalty, and the obligation to pay full pilotage to the first that offered, whether he was taken

ar not.

Since these decisions were made in the King's Bench and Exchequer, the 37th Geo. 3 has been repealed by the 5th of Geo. 4, and the 52 Geo. 3 has been repealed by the general pilot act of the 6th of Geo. 4; and these two statutes of Geo. 4 were the laws in force at the time of the collision in question. But although soine changes were made in the Liverpool pilot act in the firstmentioned statute, and in the general pilot law by the second, yet in regard to the subject now under consideration, these two statutes are the same in substance with the preceding ones which they respectively repealed; and the adjudged cases above mentioned apply with the same force to the question before us, as if they had been made since the passage of the acts of Geo. 4.

In determining, however, the true construction of these acts of Parliament, we are not left to decide between the conflicting opinions of the King's Bench and Court of Exchequer. The same question has since, on more than one occasion, arisen in the British Court of Admiralty, and the decision in the King's Bench has been constantly sustained; and we presume it is now regarded as the settled construction of these pilot acts. Abb. on Ship. (Shee's edition,) 184, n. z; The Maria, 1 Rob. New Admiralty Reports, 95; The Protector, 1 Rob. New Adm. Rep. 45; The Diana, 1 Rob. New Adm. Rep. We think, therefore, that the Circuit Court was right in the first instruction given to the jury.

The second also is free from objection. The question there was as to the rule of damages in case the plaintiffs should show themselves entitled to a verdict. They offered to prove that if the ship had not been prevented from sailing by the injury complained of, she would in due course have arrived in Georgetown (as was intended when the lading was taken in) in time for the sale of her cargo at the fishing season in the Potomac river, when

Smith et al. v. Condry.

there is a great demand for salt; that the injury delayed her, and prevented her arrival until the season was over, and thereby made a difference of ten or eleven cents per bushel in the value of the salt at her home port, and occasioned a loss upon the cargo of $2101 20. The defendant objected to this testimony, and the court refused to admit it.

It has been repeatedly decided in cases of insurance, that the insured cannot recover for the loss of probable profits at the port of destination, and that the value of the goods at the place of shipment is the measure of compensation. There can be no good reason for establishing a different rule in cases of loss by collision. It is the actual damage sustained by the party at the time and place of the injury that is the measure of damages.

The third and last exception was taken to an instruction given upon the prayer of the defendant, and also to the refusal of the court to give a direction asked for by the plaintiffs. The defendant prayed the court to instruct the jury, that if they believed that the collision was occasioned by the breaking of the hawser and fish tackle, yet from those facts the jury were not warranted in inferring that the Tasso at the time of her sailing was unseaworthy; which direction the court gave. And thereupon the plaintiff prayed the court to instruct the jury, that if they believed the collision took place as above stated, then such breaking of the hawser and tackle is no excuse for it on the part of the defendant; and this direction the court refused to give.

Now these two prayers involve the same principles, and are both liable to the same objections. By whose fault the accident happened was a question of fact to be decided by the jury upon the whole evidence before them. And the error in the prayer on the part of the plaintiffs, as well as that offered by the defendant, consists in this, that it sought to withdraw from the jury the decision of the fact, and asked the court to instruct them, as a matter of law, upon the sufficiency or insufficiency of certain evidence offered to prove it; and both prayers are still more objectionable because each of them asks the instruction upon a part only of the testimony, leaving out of view various other portions of it which the jury were bound to consider in forming their verdict. If the collision was the fault of the pilot alone, then the owners of the Tasso are not answerable. But if it was altogether

Smith et al. v. Condry.

or in part caused by the misconduct, negligence, or unskilfulness of the master or mariners, the owner is liable. And if the equipments and tackle were in this case insufficient, and not as strong and safe as those ordinarily used for such vessels in such cases, and thereby rendered the care and skill of the pilot unavailing, it was undoubtedly the fault of the master or owner; and is equally inexcusable as the omission to provide a competent crew. And it was for the jury upon the whole evidence to say whether it was the result of accident, arising from strong wind and tide, against which ordinary skill and care could not have guarded; or the fault of the pilot; or the misconduct, negligence, or unskilfulness of the crew; or the insufficiency of the hawser, ropes, or equipments with which the vessel was furnished. In the two first instances the owner of the Tasso is not answerable; in the two latter he is. The court, therefore, were right in refusing the direction asked for by the plaintiffs, but erred in giving the one before mentioned at the request of the defendants. And for this reason the judgment of the Circuit Court must be reversed.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo.

RICHARD B. ALEXANDER, PLAINTIFF IN ERROR, v. MOSES GRAHAM, DEFENDANT IN ERROR.

IN error to the Circuit Court of the United States for the Dis trict of Columbia, in and for the county of Washington.

The plaintiff in error having filed an order in writing, directing the clerk to dismiss this suit, it is thereupon now, here, considered, ordered, and adjudged by this court, that this writ of error be and the same is hereby dismissed with costs.

LESSEE OF JOHN MERCER, AND MARY SCOTT MERCER, HIS WIFE, PLAINTIFFS IN ERROR, v. WILLIAM CARY SELDEN, DEFENDANT.

The statute of limitation of Virginia, passed in 1785, barred the right of entry, unless suit was brought within twenty years next after the cause of action accrued. The savings are infancy, coverture, &c., and such persons are barred if they do not bring their action within ten years next after their disabilities shall be removed.

The circumstances under which the defendant held in this particular case, constitute an adverse possession.

Disabilities which bring a person within the exceptions of the statute cannot be piled one upon another; but a party, claiming the benent of the proviso, can only avail himself of the disability existing when the right of action first accrued.

The general rule of law is, that there must be an entry during coverture, to enable the husband to claim a tenancy by the courtesy.

THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Virginia.

The facts in the case are stated in the commencement of the opinion of the court, which the reader is requested to turn to and peruse, before referring to the sketch of the arguments of counsel. The decision of the court being made to rest entirely upon the statute of limitations, all those branches of the argument relating

D

Mercer's Lessee v. Selden.

to the invalidity of the deed from Selden and wife to Dr. Mackay, on account of its not having been read to her, and of a defect in its acknowledgment, are omitted.

Whipple and Walter Jones, for the plaintiffs.

Chapman Johnson, for defendant.

On the part of the plaintiffs, it was argued: 1: That Mrs. Swann and her children were within the express exceptions of the statute; under the double disability of infancy and coverture.

2. That no disseisin or adverse possession is operated by any length of continued possession, however hostile may be the new pretence of title under which possession is held over, if the possession were not tortious at its inception, but in súbordination to or consistent with the true title.

3. That this is especially true where a husband, who having rightfully come into possession jure uxoris, holds out possession against her heir after descent cast by her death; however hostile the claim and strong the colour of exclusive title asserted for himself; and though the heir be sui juris, and in no nearer relation to husband and wife than simply as her heir at law.

4. That the intrusion, even of a mere stranger, on lands descended to an infant, constitutes the intruder, ipso facto, a fiduciary possessor, quasi guardian, subject both at law and in equity to all the duties and liabilities of such fiduciary possessor, and utterly incapable of converting his fiduciary possession into a disseisin or adverse possession.

5. Multo fortiore, when, as in this case, the heirs were not only infants, but united in their persons all the relations of his step-children, of co-heirs to his wife, and his wards; when the guardian care and conservation of all their rights of property and of possession had devolved, as a strict legal duty, on him ex officio.

6. That the right of action had never accrued when the infants had a right to sue, being restrained either by coverture or a tenancy by the courtesy.

On the part of the defendant, it was argued, that none of the exceptions in the statute have any application to this case, but those in favour of infants and femes coverts. The right of entry of Mrs. Mercer's mother, and of her uncle, John Page, accrued at the death of Mrs. Selden, in 1787; or, at the latest, accrued to