Opinion of the court.

general average, for the amount paid for the services of the other vessel, and for the expenses incurred at the port of distress.

Precise doctrine advanced was, that the liability to general average continues until the property has been completely separated from the rest of the cargo, and from the whole adventure, so as to leave no community of interest remaining. Majority of the court went farther, and held that if the voyage is not abandoned, and the property, although separated from the rest, is still under the control of the master, and liable to be taken again on board for the purpose of prosecuting the voyage, the common interest remains, and whatever is done for its protection, is done at the common expense. Correctness of that decision cannot be doubted; and yet the question may often arise in practice, whether in a given case the separation is, or is not so complete as to justify the conclusion that no community of interest remains. Close cases may doubtless arise, but it is believed that in general there will not be much difficulty in ascertaining the true line of distinction.

VI. Where a ship was stranded by perils of the sea, and in order to lighten the vessel, the cargo was discharged and forwarded in another vessel, and subsequently new measures were adopted, and additional expenses were incurred in getting the ship off and taking her into port for repairs, it was held that the expenses incurred from the misadventure until the cargo was discharged, constituted a general average, but that the subsequent expenses were particular average, and chargeable only to the ship.*

Statement of facts shows that it became necessary to cut a channel for the vessel, and employ a steam-tug in order to get the vessel off; and the view of the court was, that the goods had been previously saved by a distinct and completed operation, and that afterwards a new operation began for the benefit of the ship-owner.

* Job v. Langton, 6 Ellis & Blackburne, 779; M. & P. on Ship. (3d ed.),

Syllabus.

Judgment, in that case, was given by Lord Campbell, and in a subsequent case he repeated and enforced the reasons on which the former judgment rested.* Voyage, in the last case, was from Liverpool to Callao. Ship was driven on a bank by a storm, near the port of departure. Cargo was discharged and transported back to the port whence it came, and some days afterwards the ship was got off, taken to the port, and repaired, and again took the cargo on board and proceeded on the voyage; and it was held that the saving of the ship and of the cargo was one continued transaction, and that the expenses were general average, to which the ship, freight, and cargo must contribute. Considering that the goods remained under the control of the master until the ship was got off, repaired, and was enabled to take the goods on board and prosecute her voyage, it is clear that the decision was correct, and entirely consistent with the previous adjudication.†

Applying those principles to the present case, we are of opinion that there was no community of interest remaining between the ship and the cargo when the master, as declared in the statement of the case, abandoned the ship, and left her in charge of the agent of the underwriters, after the consignees of the ship had declined to authorize the master to incur any further expense.

Judgment of the Circuit Court is therefore reversed, and the cause remanded, with directions to issue a

NEW VENIRE.

BROWN v. TARKINGTON.

Promissory notes given for a balance found due on settlement in a transaction itself forbidden by statute and illegal, or for money lent to enable a party to pay bills which the person taking the promissory notes

* Moran v. Jones, 7 Ellis & Blackburne, 532.

† Maclachlan on Shipping, 573, 576.

Statement of the case.

had himself assisted, in violation of statute, to issue and circulate, cannot be enforced.

2. The fact that such promissory notes are given for a balance found due, or to enable a principal party in the illegal transaction to pay notes that have got into public circulation and are unpaid, does not purge them from the infirmity which belonged to the original vicious trans-` action.

3. Where a deposition, after a motion on grounds set forth has been unsuccessfully made at one term to suppress it, as irregularly taken, is at another read on trial without objection or exception, it cannot be objected to here on the grounds that were made for its suppression, or at all.

THIS was a writ of error to the Circuit Court of the United States for the District of Indiana.

The case was this: The suit was brought by Brown, the plaintiff in error, to recover against Tarkington and others, defendants, the amount of four promissory notes, and another small sum, in the aggregate exceeding twelve thousand dollars. The defendants were stockholders in the Bank of Tekama, in the Territory of Nebraska, organized under a charter granted by the legislature, February 13, 1857. The notes were signed by its president, S. L. Campbell.

By an act of Congress passed July 1, 1836, it was provided, "that no act of Territorial legislature of any of the Territories of the United States, incorporating any bank, or any institution with banking powers and privileges, hereafter passed, shall have any force or effect whatever, until approved and confirmed by Congress." The charter of this bank, as already observed, was passed in 1857. Three of the notes were given on the 9th June, 1858, and the fourth on the 28th April of the same year. The consideration of the three notes of the 9th of June, was for a balance due the plaintiff from the Bank of Tekama on a settlement of accounts; and of the other, for moneys advanced to Campbell, the president, to enable him to redeem the paper of the bank in circulation.

Much evidence was given, in the course of the trial, tending to prove that the plaintiff was connected with the officers. and directors of the bank in conducting its operations, in aiding and assisting, personally, and by his credit and means,

Statement of the case.

to extend the circulation of its bills; and also tending to prove that the plaintiff was familiar with the charter of the bank, and the articles of association, and knew of the illegality of the association, and participated, in common with the officers and directors, in very unscrupulous, if not fraudulent contrivances, to keep up the credit of the bank and its bills, to the injury and loss of the business public, after they had knowledge of its utter insolvency and inability to redeem the paper already in circulation.

Indeed, it was apparent from the evidence that the institution possessed very little, if any, capital, during the whole term of its existence. The nominal capital was $300,000, divided into shares of one hundred dollars each, payable in instalments of ten dollars each. The third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth instalments were made due and payable at such times as the board of directors might designate. The bank began business in September, 1857, and ceased in the May following, with an outstanding circulation of its bills of some ninety thousand dollars.

In the course of the trial the plaintiff read without objection the deposition of Campbell; and, of course, being thus read, no exception was taken to it. The record however disclosed the fact that at a former term there had been a motion to suppress and exclude this deposition, as not having been taken in conformity with the 30th section of the Judiciary Act of 1789, under which the counsel moving to suppress, assumed it to have been taken; and disclosed also the fact that the motion had been overruled.

At the trial, the court below, after referring to the act of Congress forbidding the Territorial legislature to pass any law chartering a bank without its consent, and to the violation of this organic law in the present charter, and to the facts which had been proved, instructed the jury that the charter and the organization of the bank under it, as well as the banking business conducted and carried on through the means of this organization, were all illegal and void; and that if the plaintiff participated in these transactions, aiding

Argument for the plaintiff.

and assisting the officers and directors in giving credit to the bank, and to its bills in circulation, thereby co-operating in the imposition and fraud upon the business community, with a knowledge of the illegality of the charter and of the organization of the bank, and that the consideration of the notes in question grew out of these illegal transactions, he was not entitled to recover.

Verdict and judgment went accordingly for the defendants.

On error here, Mr. G. M. Lee, for the plaintiffs, contended that various instructions requested below and which he presented, but which, as having been aside from the ground on which the case was put before the jury, need not perhaps, here, by the reporter, be particularized-were not given by the court below, as asked. He argued further that the charge as given was, in itself, wrong: for conceding argumenti gratiâ, what was otherwise not to be conceded,to wit, that the bills of the Tekama Bank as originally issued were not obligatory on the persons by whose authority they were put forth-still that here the plaintiff, in so far as he lent his money to the defendants to enable them to pay debts, and the payment of which was not illegal whatever the incurring of them might have been-was not censurable, but, contrariwise, praiseworthy; that here too was a promise, not the immediate nor necessary offspring of the old acts, nor tainted by their infirmity, if they had any; and that thus standing on its own and on new ground, such promise was good.* He contended that the court below had disregarded the purpose to which part of the money was applied, and disregarded the new and independent promise; and by charging, substantially, that if the plaintiff had furnished funds to enable the bank to do business he could not recover, had cast into the background or out of view entirely,

* Petrie v. Hannay, 3 Term. 418; 6 Id. 410; Bird v. Appleton, 8 Id. 562; Faikney v. Reynous, 4 Burrow, 2069; Farmer v. Russell, 1 Bosanquet & Puller, 296; Ex parte Bulmer, 13 Vesey, 313; Hodgson v. Temple, 5 Taunton, 181; Toler v. Armstrong, 4 Washington, 297; Armstrong v. Toler, 11 Wheaton, 258; Catts v. Phalen, 2 Howard, 376.