The Stanley Rule and Level Company v. Bailey. device extends up through a slot in the plane iron into a mortise in the cap iron; and, in both devices, the result is precisely the same, to wit, the adjustment of the plane iron through the medium of the cap plate." It is obvious, that the Victor plane is not the Bailey plane of 1858, neither is it a reproduction of the Hunt plane of 1860. In that plane, the adjusting device was attached to a travelling bed; and, furthermore, while the Hunt plane has a compound plane iron, it has not the compound irou of the three Bailey planes. The Hunt plane has a compound plane iron in which the two irons cannot be united before they are inserted in the stock. This peculiarity made this plane practically unsuccessful, and, although, theoretically, the Bailey invention may be attached to the Hunt plane, I do not believe that, practically, such a combination would be successful. The adjusting mechanism of the Victor plane is a well known equivalent for the lever and screw of the Bailey plane of 1867. The defendant claims that the plaintiff has violated its agreement, in not using due diligence to sell the Bailey planes, and in devoting its time and attention improperly to a sale of competing plane. The testimony shows that this averment is not at all sustained by the facts. Let there be a decree for an injunction and an account, in respect to the third and fourth claims of the patent. Charles E. Mitchell and Benjamin F. Thurston, for the plaintiff. William E. Simonds and Charles Levi Woodbury, for the defendant. 630 Quarter Casks of Sherry Wine. 630 QUARTER CASKS OF SHERRY WINE. Casks of wine were shipped to New York, on a vessel, under a bill of lading which stated that the casks were in good order and well conditioned, and said, also: "Weight and contents unknown; not liable for average leakage or breakage." The casks, without reference to their contents, were delivered from the vessel at New York, and placed in the custody of officers of the customs. There was some leakage during the voyage. Some of the casks were empty on their arrival, and others were partially so. The casks were of an inferior quality, and were in poor condition, on their arrival, arising from their quality and the usual perils of navigation. The master of the vessel libelled the casks of wine, in rem, in Admiralty, for the freight money, and sued the claimants therefor, in the same suit: Held, (1.) The vessel was not liable for leakage and breakage not arising from her own negligence. (2.) Proof of the inferior quality of the casks threw on the claimants the burden of showing that the injury to the casks was caused by the negligence of the vessel. (3.) The burden was on the claimants, of proving that the leakage was greater than the average in such casks. (4.) The claimants and the property could be joined in the suit. (Before WAITE, Ch. J., Southern District of New York, June 21st, 1878.) THIS was an appeal by the claimants from a decree of the District Court in favor of the libellants, (7 Benedict, 506,) in a suit in rem, in Admiralty. Thomas H. Rodman, for the libellant. Franklin A. Wilcox, for the claimants. WAITE, Ch. J. On or about April 12th, 1873, John Haurie, Nephew, shipped on board the ship Hudson, whereof the libellant was master, at Cadiz, Spain, 630 quarter casks of sherry wine, to be transported to New York and there delivered to the shipper, or his assigns, he or they paying freight and primage therefor, amounting to $866 25, in gold. Bills of lading in the usual form, signed by the master, were delivered to the shipper, specifying that the casks were in good 630 Quarter Casks of Sherry Wine. order and well conditioned, but which contained the following clause: "Weight and contents unknown; not liable for average leakage or breakage." The bills of lading were transferred by the shipper to the claimants, John Osborn, Sons & Co., New York. The whole 630 quarter casks, without reference to what was in them, were delivered in due time from the ship, in New York, and taken to the bonded warehouse of the United States, in the custody of the officers of customs, where they remained at the time of the filing of the libel in this case. There had been some leakage during the voyage. Some of the casks were empty on their arrival, and others partially so. The casks were of an inferior quality, badly coopered and shaky. Upon their arrival they were in poor condition generally, but it does not appear that their bad condition could be attributed to anything else than their inferior quality and the usual and ordinary perils of navigation. The freight and primage payable according to the terms of the bills of lading were duly demanded of the claimants, and payment thereof refused, before the libel was filed. No evidence was offered by the claimants, and there was no other evidence of the negligence of the vessel than the condition of the casks upon her arrival. There was no evidence as to what the average leakage would be upon such a voyage, or that the actual leakage in this case was greater than the average. The exception in the bill of lading exempted the ship from liability for leakage and breakage not arising from her own negligence. The burden of proving that the injury to the casks was caused by the negligence of the ship, was cast upon the claimants by the proof of the inferior quality of the casks. As there was no evidence upon that subject, the case of the claimants in this particular has not been made out. The burden of proving that the leakage was greater than the average, in casks of the quality and condition of these when received on board the ship, was upon the claimants. No evidence having been given upon this subject, the case of the claimants, in this particular, also, has not been made out. Poland v. The Maryland Coal Company. As the cause of action in this case arises upon a contract which, if it binds the claimants personally, binds also the property, both the claimants and the property may be joined in the suit. The libellants are entitled to a decree for $866 25, in gold, with interest at the rate of seven per cent. per annum from the time of filing the libel, and for costs. NATHAN W. POLAND 8. THE MARYLAND COAL COMPANY. Where a vessel was chartered for "a series of voyages" from G. to W., from May 2d to November 1st, with coal as a cargo, each trip, for a compensation per ton of coal, the charterer was not bound to furnish a cargo, at G., on October 19th, unless there was reasonable cause to believe that the voyage could be completed, in the usual way, by November 1st. As the charter specified what lay days should be allowed for loading, the charterer was not required to furnish a cargo, except at his own convenience, during such ly days. (Before WAITE, Ch. J., Southern District of New York, June 21st, 1878.) WAITE, Ch. J. On May 2d, 1874, the schooner Lizzie Heyer, then being in the port of New York, was chartered by the respondent "for a series of voyages from Georgetown, D. C., to Weymouth, Mass., below all bridges, from the second day of May until the first day of November, 1874, charterers to have the privilege of sending the vessel two trips to Boston in lieu of two to Weymouth." The respondent engaged "to provide and furnish to the said vessel a full and complete cargo of coal, under deck, each trip, and to pay for the use of said vessel, during the voyage aforesaid, two dollars and sixty-five cents ($2 65) per ton, of 2,240 lbs., delivered at Weymouth. Freight payable on delivery of cargo. * * * * Poland v. The Maryland Coal Company. If to Boston, two dollars and fifty cents ($2 50) per ton, and three cents per ton per bridge." The lay days allowed by the charter for loading and discharging were "at the rate of one day, Sundays and legal holidays excepted, for every hundred tons of cargo," commencing twenty-four hours after the arrival of the vessel in port, and notice thereof to the respondent, or its agents or consignees. The carrying capacity of the vessel was upward of six hundred tons. Under this charter the vessel made one voyage to Boston, three to Weymouth, and one, by special arrangement, between Baltimore and Weymouth. She sailed from New York to Georgetown, May 3d, and arrived May 10th; was loaded, and sailed for Boston, May 13th, arriving there May 24th; sailed for Georgetown, May 30th, where she arrived June 6th; sailed for Weymouth, June 10th, arriving June 19th; sailed again for Georgetown, July 1st, and arrived July 8th; sailed again for Weymouth, July 15th, and arrived July 26th; sailed for Georgetown, July 31st, and arrived August 7th; sailed for Weymouth, August 9th, arriving August 19th. From Weymouth, by special agreement, she then made a voyage to Baltimore and back, sailing from Weymouth, September 4th, and arriving at Baltimore, September 8th, and sailing from Baltimore, September 10th, and arriving at Weymouth, October 1st. She then sailed from Weymouth, October 10th, and arrived at Georgetown, October 19th. On her last arrival at Georgetown, she reported to the respondent, and demanded a cargo under the charter. At that time the ruling market rate of freight to Boston was one dollar and fifty cents per ton. The respondent offered to put a cargo on board, under the charter, for Boston, if the vessel would agree to deliver it at that place by November 1st. This agreement the libellant refused to make, but he offered to receive a cargo under the charter and enter upon the performance of his voyage. The respondent then offered to load her, and, if she arrived in Boston by November 1st, pay the charter price, but, if after that date, the market price. This also was refused by the libellant. On October 24th, the respondent offered to load the vessel for Boston at one dollar and sixty cents per ton, |