why he was not entitled to change his mind | for full freight. The case turned largely in that particular, provided that he acted upon the form of action,-covenant,-and with sufficient promptness, and intervening the court was inclined to the opinion that rights had not accrued. an action might have lain for a quantum meruit.

The facts of this case show that, as soon as the master learned of the rescue of the vessel, he went to Boston, arriving September 21, two days after the bark, went aboard the vessel, announced his intention of completing the voyage, and, the day after the libel for salvage was filed, interposed a claim for ship and cargo, in which he alleged that he was entitled to the possession of the cargo of hard pine lumber then on board of her, having given bills of lading for it, and being obliged by the terms of such bills of lading to de[135]liver said cargo at Montevideo, *in 1. province of Uruguay. There was manifestly no lack of diligence here, although the agents of Ward & Company filed a claim to the cargo later on the same day, and on October 18 filed a libel for possession, and moved for a sale of the cargo. The question was thus squarely presented as to which of these parties was entitled to the cargo, which was manifestly dependent upon the other question, whether the contract of affreightment was still in existence. That there was no definite intention of abandoning the lien of the ship upon the cargo is shown by the fact that, as soon as the master was informed that the vessel had been rescued, he took immediate steps to recover possession of the cargo. The American cases upon the effect of abandonment of a vessel at sea upon the contract of affreightment are not of any great value, as the subject is not fully discussed in any of them, and the question was not presented in the aspect in which it is before us in this case. In Lewis v. The Elizabeth & Jane, 1 Ware, 41, Fed. Cas. No. 8,321, the petition was for wages, which were denied upon the ground that the vessel had been abandoned and no freight had been earned. The case of The Nathaniel Hooper, 3 Sumn. 542, Fed. Cas. No. 10,032, is still more indefinite in its treatment of the subject herein involved. So, in the case of Dunnett v. Tomhagen, 3 Johns. 154, wages were denied to the seamen because no freight was earned on the homeward voyage, no part of the cargo being delivered by the ship.

In Post v. Robertson, 1 Johns. 24, the vessel was abandoned after performing three fourths of her homeward voyage, was rescued by salvors, and brought into port, where the cargo was sold, and the proceeds paid to the salvors and owners. It was held that this was not such a delivery of the cargo as would entitle the shipowners to maintain an action on the charter party

In none of these cases was the question discussed as to the power of the master to reclaim possession of the cargo at the *port[1 of refuge in order to earn his freight, it being seemingly assumed that the wreck and abandonment of the vessel hac dissolved all contracts, and especially that of the seamen, who attempted to enforce their lien upon the cargo before freight had been earned by its delivery at the port of destination.

It may be frankly admitted that the English cases lay down the rule that the abandonment of the vessel puts an end to the contract of affreightment, or, at least, it gives the owner of the cargo an option to do so. The case of The Kathleen, L. R. 4 Adm. & Eccl. 269, is the earliest upon the subject, and asserts a principle which has been followed in the subsequent English cases. The Kathleen had left Charleston with a cargo of cotton bound for Bremen, and when in the English channel suffered a collision with another vessel, for which the Kathleen was in nowise to blame. On the following day she was abandoned by her crew, and rescued by salvors, taken to Dover, and sued for salvage. The owners of the Kathleen applied for leave to bond the cargo in the salvage suits, in order that they might carry the same to its destination. The court ordered the cargo sold, on the ground that it was deteriorating fast through the damage sustained by salt water. A suit for freight was subsequently instituted by the owners of the vessel. Sir Robert Phillimore held that the original contract between the owners of the ship and cargo was at an end, and that no freight was due; and, in answer to the claim of pro rata freight, observed that the title to such pro rata freight must arise out of a new contract with the shipowner, to which both parties assent, and as neither party assented, pro rata freight was not due. In view of the fact that at least seven eighths of the voyage had been performed, that the collision which put an end to the voyage was not in anywise the fault of the Kathleen, that she was taken into a port in the immediate neighborhood, and that the vessel stood ready to take the cargo on to Bremen and earn her freight, we are not favorably impressed with the natural justice of a decision which denied even pro rata freight to the master.

The case of The Cito, L. R. 7 Prob. Div. 5, was much like that of the *Kathleen,[13

which was followed by the court of appeals | to carry out the contract as to entitle the in an opinion by Lord Justice Brett, sub- owners of the cargo to treat that act as putsequently Lord Esher. The Cito, on a voy- ting an end to it. It was held that no age from Wilmington to Rotterdam, with freight was recoverable. It appeared that a cargo of resin in barrels, was, owing to on April 11, as soon as the owner of the the peril of the sea, abandoned by her Arno heard of the abandonment, he made crew off the American coast. She was an arrangement with the salvors, sent a tug subsequently picked up and navigated to to meet the vessel, which returned with her Plymouth, and there arrested for salvage. to Liverpool on April 25. It was intimated The court declined to hold that a mere that if, before notice to the shipowner of abandonment at sea put an end to a conthe election of the cargo owner to treat the tract of affreightment, since the abandon- contract as at an end, he had been able to. ment might be wrongful, and in such a resume possession of the ship and cargo, he ease the owner of the cargo might sue the ship upon its contract; but it held that might perhaps have been able to annul the the abandonment was so far binding upon abandonment; but not having done so, the the shipowner as to allow the cargo owner cargo owner had a right to treat the abana dissolution of the contract. to treat such contract as abandoned. The donment as court also held that the court below was The judgment was affirmed by the court of right in ordering the cargo to be delivered appeals. It is true that, in this case, the to the owners upon their giving bail for cargo was not delivered at the port of dessalvage. Some stress was laid upon the fact tination by the crew of the ship, but by that before the shipowners sought the pos- the salvor's crew. It was, however delivered session of the cargo, the cargo owners had by the ship herself, and we see no reason intervened and applied for it. why the salvor's crew might not have been treated as the agent of the ship in that particular; but the court held to the hard and fast rule of the Cito, that the abandonment of a ship ipso facto put an end to the contract of affreightment, notwithstanding the fact that the cargo was delivered by the same ship and at the port of destination. Under such circumstances the denial of all freight seems to have worked a great hardship.

In the case of The Leptir, 5 Asp. Mar. L. Cas. 411, the salving vessel took off the crew of the vessel in distress, refused to allow her own crew to return, and the two vessels were navigated into a port of refuge. It was held that there was no abandonment, that the case of the Cito did not apply, and the court decreed for a pro rata freight.

In The Argonaut, unreported, but published in the Shipping Gazette of December 5, 1884, a vessel on a voyage from

Halifax to Liverpool was abandoned by her crew, and picked up by salvors off the English coast. On being taken to Plymouth, the owners demanded the cargo, but the court ordered it carried to Liverpool, where it obtained a higher price than the owner could have gotten for it at Plymouth. It seems to have been carried in the ship by her own crew from Plymouth to Liverpool. The admiralty court allowed a quantum meruit freight, but its decree was reversed by the court of appeals, which held that the ship was entitled to nothing.

Although the House of Lords has not yet spoken upon the subject, these cases must be regarded as settling the English rule that a compulsory abandonment of a vessel at sea puts an end to the contract of affreightment, and disentitles her owners to recover any portion of her freight, notwithstanding that she and her cargo may be[139] picked up by salvors, and taken into an intermediate port, or even to the port of discharge.

That the soundness of this doctrine has not been accepted without challenge is evident, not only from certain expressions by The prior cases were, however, pushed to some of the English writers, but notably their logical conclusion in that of The Arno, by Dr. Wendt, in his work on Maritime [138] decided by the court of appeals, *8 Asp. Mar.Legislation, wherein he speaks of the Cito .. Cas. 5. The vessel, while on a voyage as having caused much surprise among from New York to Liverpool, was owing to those interested in maritime commerce, and stress of weather, abandoned at sea on comments upon it as follows (3d edition, March 31, and three days thereafter was page 629): picked up by a salvage crew, and taken to Liverpool, her port of destination. The admiralty court held that, although the cargo was delivered by the vessel on which it had been originally shipped, at the port of destination, the act of abandoning her so clearly indicated the intention of the master not

"So long as this Cito decision stands it gives the cargo owner the full option to take advantage of the common misfortune for the purpose of evading the contract entered into by him. This, I confidently assert, is opposed to every principle of law and justice. A contract, by the law of every

civilized country, holds good until both parties to it, of their own free will, agree that it shall not be carried out. Now, how can the abandonment of a ship in such a case as the Cito be taken to be an expression of an agreement on the part of the owners of the vessel to cancel the contract? The action of the crew in leaving a vessel to save their lives is not an act of will at all; they have to desert their vessel under the pressure of a vis major. How can this be taken to show an agreement on the part of the shipowner to abandon his part of the contract? He has no power to exercise any option at all. If when the vessel is recovered and the owner again requires [acquires?] the power to exercise his will in the matter, he then elects not to carry out his contract, and the cargo owner agrees, well and good; the contract is put an end to by mutual consent. To assume, however, such consent on the part of one of the contracting parties from an action forced on his servants by a power which cannot be resisted, seems to me to be a doctrine utterly opposed to common sense."

The ruling of the English courts that even a delivery of the cargo at the port of destination does not entitle the shipowners to any freight whatever seems a somewhat startling innovation upon the ancient rule [140]of the admiralty, that a loss occasioned by a peril of the sea shall be borne as a common burden, and shared proportionately by the ship, cargo, and freight, as well as a departure from the general rule that neither party can put an end to a contract without the assent of the other.

as if the vessel had met with a disaster
not involving an abandonment, and put
into a port of safety for repairs. It appar-
ently ignores the principle that, to consti-
tute a rescission, there must be the same in-
tent to rescind as there was originally to
contract, and that the intent to rescind
should not be inferred without some act
which points unmistakably to that conclu-
sion. There is no more reason for holding
that the abandonment of the ship was a re-
scission of the contract of affreightment than
that such abandonment was a renunciation
of all the owner's title to the ship in case
she were subsequently rescued. Whether,
if Ward & Company had insisted upon the
ship carrying out her contract, they might,
in case of refusal, have had a cause of
action, it is unnecessary to consider.
view of the severity of the storm, and of the
danger of remaining on board, the effect of
her abandonment on the contract probably
never entered the mind of the master.
Such abandonment was not a failure to per-
form the contract in any particular, since it
was the result of an overwhelming necessi-
ty; and, if the vessel were *rescued the mas-[141]
ter might repair and continue the voyage,
or tranship the cargo to another vessel after
the extent of the damage had beca ascer-
tained.

In

that the ship was irretrievably lost; but
He might indeed have supposed
both parties took the chance of its being
rescued and taken to a port of safety, when
the question would then arise whether pru-
dence required her to be repaired, or the
cargo transhipped.

In such case the same question arises as if the ship had met with a disaster, and We consider the sounder doctrine to be been navigated into a port by her own crew. that the compulsory abandonment of a ship We think it makes no difference in princiat sea should be treated merely as a relin-ple whether a tug is hired by the master quishment of the voyage and of any present intention to continue it; but that, if the vessel be subsequently rescued and taken in to an intermediate port, the master retains the same right given to him by an ordinary disaster at sea, unattended by an abandon ment, to resume possession of the ship and cargo, subject, of course, to the claim of salvors, and carry the latter forward to its destination, provided he act with prompt ness and before any intervening rights had accrued.

The opinion of the court assumes that the abandonment of the vessel was a repudiation and a rescission of the contract of affreightment, when in fact it was involuntary. designed only to save the lives of the crew, and had as little effect upon the contract

to take his ship into port, or a tug in the
employment of another person comes along
and picks her up. If the cargo owner had
less have declared the contract rescinded;
himself rescued the vessel, he might doubt-
but it is quite otherwise if the vessel be
rescued by her own master and crew, or be
taken in tow by a third party.

Applying the doctrine of the opinion, it
would follow (and such are the English
cases of The Kathleen and The Arno) that
if the vessel be abandoned near her port of
destination, and towed into such port by a
salving tug, she loses her whole freight, and
cannot even recover on a quantum meruit,
though the whole voyage be performed.

This conclusion seems so irreconcilable with natural justice that we are constrained to dissent.

[142]*FLORIDA MCGUIRE and Matilda Caro

V.

WILLIAM A. BLOUNT, William Fisher,
Mrs. William Fisher, The Pensacola City
Company, Thomas C. Watson, John Wil-
liams, James M. Bullard.

(See S. C. Reporter's ed. 142-148.)

1. Courts-disqualification of judge for interest.-The disqualification of the trial Judge for interest is not established, nor is It offered to be established in any legitimate way, by an unverified petition stating that the wife of the judge has acquired an interest in the property which is the subjectmatter of the litigation, accompanied by a statement of a desire to offer testimony in support thereof, without furnishing the names of the witnesses, or filing any affidavits, or definitely stating what the witnesses would say if permitted to testify.

public

2. Ejectment-sufficiency of plaintiff's
title. The plaintiff in ejectment must re-
cover upon the strength of his own title.
3. Ejectment-defense of outstanding
title.-A defendant in ejectment who is not a
mere trespasser or interloper may show an
outstanding and subsisting title in a stranger,
to defeat the plaintiff's right of recovery.
of
4. Evidence-admissibility
records as ancient documents.-Docu-
ments which show the probate of a will in
proceedings had during the Spanish control
of Florida, and a judicial sale of the testator's
lands, and bear upon their face every evidence
of age and authenticity, and come from the
official custody of the surveyor general of
the United States, are admissible in evidence
as ancient documents,-especially where the
proceedings have been given express or tac-
it recognition in subsequent official investi-
gations and conveyances.

5. Judicial sale-validity as against
technical objections.-Technical objec-

tions to the regularity of a judicial sale had
during the Spanish control of Florida will not
be permitted to defeat the operation of the
sale and the conveyance thereunder to pass
title.--especially where a sale of the lands has

been made under the title undertaken to be
passed by the proceedings, and this sale has
subsequently been held sufficient to convey
the title by the commissioners appointed un-
der the act of Congress of May 8, 1822 (3
NOTE. As to what title or interest will
support an action of ejectment-see note to
Hancock v. McAvoy, 18 L.R.A. 781.

On defenses in actions of ejectment-see note to Greene v. Couse, 13 L.R.A. 206.

As to proof of ancient documents-see note to Coulson v. Walton, 9 L. ed. U. S. 51.

As to when judicial sale will be set asidesee note to Schroeder v. Young, 40 L. ed. U.

Stat. at L. 709, chap. 129), for ascertaining titles to lands within the territory of Florida.

G. Trial-directed verdict.-A verdict may be directed in favor of one of the parties when the testimony and all the inferences which the jury can justifiably draw therefrom are Insufficient to support a different verdict.

[No. 6.]

Submitted January 18, 1905.

Ordered for

oral argument January 30, 1905. Argued October 12, 13, 1905. Decided October 30, 1905.

ON WRIT of Certiorari to the United

States Circuit Court of Appeals for the Fifth Circuit to review a judgment which affirmed a judgment of the Circuit Court of the United States for the Northern District of Florida in favor of defendants in an action of ejectment. Affirmed.

See same case below, 56 C. C. A. 682, 121 Fed. 1020.

The facts are stated in the opinion.

Messrs. Hilary A. Herbert and Benjamin Micou for petitioners on original submission. Messrs. E. T. Davis and Samuel S. Belden were on the brief:

The trial judge was disqualified for interest.

State ex rel. Perez v. Wall, 41 Fla. 463, 49 L.R.A. 548, 79 Am. St. Rep. 195, 26 So. 1020; Place v. Butternuts Woolen & Cotton Mfg. Co. 28 Barb. 507.

A mere intruder cannot enter upon a person actually seised, and eject him, and then question his title, or set up an outstanding title in another. The maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's, is applicable to all actions for the recovery of real property. But, if the plaintiff had actual prior possession of the land, this is strong enough to enable him to recover it from a mere trespasser who entered without any title.

Christy v. Scott, 14 How. 292, 14 L. ed. 426; Bradshaw v. Ashley, 180 U. S. 59, 45 L. ed. 423, 21 Sup. Ct. Rep. 297; Seymour v. Creswell, 18 Fla. 40.

recover

A plaintiff in ejectment can against one not showing a better right, or an intruder.

Ashmead v. Wilson, 22 Fla. 258. Where both parties claim title to land common source, the defendant is from a estopped from setting up an outstanding title with which he is disconnected. Doyle v. Wade, 23 Fla. 98, 11 Am. St. Rep. 334, 1 So. 516.

As to an intruder or trespasser, or one Who does not show a better right, possession of lands, like the possession of per

125