The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1858-11-24
La w INTELLIGENCE.
IMPORTANT DECISION OF THE CIRCUIT COURT
OF THE UNITED STATES

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This was an action Of rover brought to recover the
value of 81 bales of cotton, shipped by the plaintiffs in
the spring Of 1857, to the firm Of 5. Feuby Il Bro.
of this city under bill of adng making the property
deliverable to the latter their assigns The cotton
was purchased by the plaintiffs, the order of the
MeSsrS. Fenby. to be paid for on time, and bill OF
exchange for the purchase money had been drawn the
Messrs Fenby and been accepted by them but had not
matured at the time of the arrival of the vessel at Ba
more with the cotton on board. The Messrs. Fenby
meanwhile had stopped payment, but prior thereto Lad
assigned the bill of adng in writing the defendants
either in absolute payment, by way of collateral
70 secure the payment OF two promSSory notes OF theirs
which the defendants held and which had been given
paper of like amount loaned by the defendants to
the Messrs Fenby. On the day Of the arrival Of
the vessel the defendants who had previously given
tcc of their title to hercOnsgnee made that
she would discharge her cargo the next day oath
April On the morning of the 9th, however by O'Clock
or thcreabouts Messrs James Corner 4 Sons agents of
the plaintiffs having been teegraphed by the latter to
that effect notice in writing the conSignee of the
vessel and to the master officer in charge oher de-
liver the cotton to the holders of the bill of adngassert
ing the claim of the plaintiffs thereto unpaid vendors,
and treating the cotton as still IN trdnsitU.
1t was i'll evidence that the Messrs Fenby at the time
OF borrowing the accommodation raper of the defendants
had promised give them security therefor and
cotton in question did not realize sufficient pay
the notes referred to- 1t was likewise proven that the de
PENDANTS, on receiving the endorsement of the bill Of
adng, withdrew the memorandum of the Messrs.
fenby from bank ana paid at maturity their paper
which was in the hands OF bona fde holders for value 1t
was shown also, that the defendants receiving the
transfer Of the bill ladng and before the notice OF the
24th OF April had assumed the of the premium Of
insurance the cotton in dispute already noted upon
open policy of the Messrs Fenby and had accordingly
paid the time after 1t was further in evidence
that the Messrs Fenby though going in business and
meeting their engagements found upon subequent
examination of their affairs have been in fact nsovent
some time prior to ordering the cotton in controversy
The plaintiffs having proved that the othe
ing of the notice of the oath of APr portion of the
ton (some ten or twelve bales thereabOut had already
been landed on the wharf, good deal of testimony was
taken and the regulations of the Board Trade read
TO jury to show that by the custom Of the Port de-
livery the wharf after reasonable previous notice
knowledge the part of the cOnsignees of cargo was
sufficient delivery put end to the transit of the goods
and to discharge the responsibility the shpowners as
carriers, leaving further liability their part only
proper custody till the goods should he carried with
in reasonable time by duly authorized person The ex
tent and operation of custom was and
sought to be qualified by evidence the part the plain
The case, it went to the jury was relieved by the
ruling OF the Court from all impeachment of the good
that the principles decided were of general commercial in
terest and application.
The following points, with others of minor Importance
were either involved in or expressly determined by the in
structions of Judge Giles to the jury, viz:
That the insolvency which creates the right to stop in
H1RS'd must be an insolvency testified by public
act evidence between the time the sale and the stop
page so that if the purchaser be much nsovent
before the sale after he has not actually failed to
meet his liabilities, committed some overt act of inso
Yency until after the sale the vendor after act may
still stop his goods IN traRSiiu.
That unpaid vendor may stop his goods in transif
as against all the world but bona de purchaser for val
liable consideration paid given the time without
dor who receives the endorsement bill of lading
whether as security for absolute payment of
pre-eXistng debt, is not purchaser for value as
against the unpaid vendor, provided the latter
rest the goods before delivery; the Court held in
TINS connection that the assumption and subsequent pay
mentor the premium of insurance, the faith of the
transferof the bill of adng an advance or new
consideration to make the tran fierce such n pur-
chaser in whole or in part.
That notice to the carrier from the vendor prior to
the delivery of the goods, accompanied by tender Of
freight and charges is equivalent to an actual seizure
n. he LEGAL Tnrp Of
stoppage Ia tTGRSitu
That discharge tho wharf for the purpose of deliv
cry after reasonable previous notice knowledge
vessels intended discharge and in view of the custom
of the port supposing the jury to find the existence of
such custom is delivery which puts end to the tran
sit and carriage of the goods and of the right Of
stoppage i tanSitu to the goods discharged even
although the custom should hold the ship to
tnung duty Of care and custody, for reasonable time
longer.
But that such discharge the wharf. though the
jury should find it to amount constructive delivery
under the custom does produce effect except as
to the goods actually landed that a part delivery
in that way is delivery of the whole and does not
put end to the transit the right stoppage in tran
SotH as to the goods remaining on board.
The jury by their verdict found the existence of the
custom as set up by the defendants and returned YER
dict under the Courts instructions for the value of 80
bales OF cotton only, being deduction of the value Of
twelve bales landed when the notice served.
The case will go to the Supreme Court of the United
States upon the appeal of both parties
CRIMINAL CoURT.-Hon. Henry Stump, Judge Mil
ton Whitney, Esq. States Attorney prosecuting The
day:
Shortly after the opening Of the Court, Chas F Pitts
Esq, of the counsel for Henry Gambrill came in
when Judge Stump, handed him paper containing
notes of references to certain authorities which the Court
bad requested counsel to furnish it, after argument
for new trial had been finished and asked him what
cases he relied on principally in support Of his argument
Mr. Ptts-l cannot point out the particular cases Your
Honor my memory is not sufficiently refreshed by merely
looking the references now. We were forced into
this argument the other day and had time to familiar
ize ourselves with the authorities cited by us II wouId he
IN int and
caseS.n
Judge stump-"Well, how do you think could do tYn
Mr.. Pitts Your Honor has had more than a week TO
examine the cases referred to'
Judge stump.-"But I've been in Court all the time,
and been sick besides"
After delay of few minutes, the Court proceeded to
say that before giving its opinion this motion could
not but express its regrets at the Irregularities which had
taken place with the petit jury during the trial case
if the petit jury had desired go church. they were
able to arrange that matter themselves by consulting the
has the visit of the grand jurors uncalled for
Interference if they had asked the Court about the visit
before they went there the Court would told them to
keep away The bas also are TO he censured for per
mtting them to enter the jury The can't re
sst making these remarks, but it here rebuke the
conduct of the jurors These Irregularities as has been
the result IN this calculated to give great deal
of trouble
The Court has considered read great many of the
authorities cited by the counsel in their ent in this
cause but has not read all of them, did think it
The Court considers it to be general rule of
law that an affidavit of juror cannot be received set
aside verdict This appears to be wholesome rule for
person may get the jury and be friend party
either in a civil or criminal case and o
irreguary before the verdict is rendered and
terwards make affidavit to these irregularities have the
verdict set aside. But although the affidavit of juror
cannot be received to set aside verdict it be received
to subSantae the verdict this is also the general rule Of
law. In this the affidavit of the foreman of the jury
is filed aside the verdict alleged Irregularities to
which he, juror was privy The Court in this case
after due consideration has to the conclusion that
an affidavit of juror cannot be received to upset
dict
Now, the question is was there any thing done after
the time the jury empanneed which would be sui-
cent to set aside the verdict? 1t would be almost i'm
possible keep the jury together during the continuance
of the trial and also to prevent them from reading the
spapers but the Court thinks that such reading did
not influence the minds of the jury in making their
dict and the jury have filed afdavts to that effect
The Court then cited which had been decided in
the Supreme Court of the United States where newspa
per had been sent to juror which he had been in the
habit of reading and to which he subscriber, the
paper being from his house where was usually left
the juror opened and found that contained report
of the evidence of the trial. the juror read por
on of the testimony, which merely refreshed his
cry but which did not influence his judgment, he had
previously made up his mind; another juror took
up the paper and noticing that contained report of
the trial read few sentences of the evidence and then
laid it down. One of the jurors made affidavit of these
facts after the verdict rendered, and motion
heard for trial, before District Court, and
oveTued The case was then taken to the Supreme
Court and Chief Justice fancy decided that trial
should not be granted as the reading of the newspaper
had been proven not to have influenced the minds Of the
jury in making their verdict.
The Court thinks that the conversation of of the
jury with the grand jurors. which did relate the
trial at ALL is not sufficient to aside the
verdict. The Court cited where two jurors had left
the jury three O'Clock in the morning in charge
of cOnstahle went to tavern to Sleep and another
to his own home they returned in the morning the
jury room, having COnyerscd with in relation
the trial After the verdict had been rendered motion
made for trial, and this separation of the jury
made the ground of the argument The Court decided
that the separation Of the jurors rregularity
which would subject them to fine, but that it not
sufficient cause to set aside the verdict and the motion
oveuued.
The Court therefore is Of opinion in this case that the
reading of the newspapers did influence the minds
the jurors in making their verdict and that the visit of
the grand jurors although improper interference with
the petit jury. is sufficient verdict in
this The Court therefore, overrules the motion
for new trial.
Alter the Judge had rendered his decision, he said
Il give notice to the baiifs of the Court not to
let any speak to jury while in their charge. The
bailis ought have known better in this case if the
grand jurors did mott
The case of the State IS Henry Sanders and Joseph
Kelly, charged with robbery, postponed until this
morning the States witnesses not being present Mr..
Whitney stated to the Court that Kelly in ia H.
sidered to he dying with the consumption, and not
able be brought He intended trying Sanders first
against Kelly. If there nothing against Kelly, he
wanted him to be relieved from his condition in the JAIL
if he guilty, he would only 90 to the Peniten
tiary to die. The case was fixed for today.
After the above case was disposed of, Henry Gambr
convicted of the murder of officer Benton brought
into Court charge of Warden James his deputies
and placed in the prisoners box.
Gambrill was dressed in the dark suit which he
during the continuance of his trial. He walked to
the box with firm step and with the exception death
ly paleness did not show any signs Of emotion.
As as the prisoner was seated, Mr.. Schey, the
Court Clerk said Henry Gambrill, stand up hold up
your right handput it DOWN. Gambrill arose di-
rectd and remained standing while Court addressed
him follows:
Henry Gambrill you have been tried for the murder of
benjamin Benton by jury of your own selection, and