Magoun v. New England Marine Insurance Company. feiture, and consequently could furnish no justifiable or probable cause for the seizure. By our law (Act of 1799, ch. 128, § 50) the landing of goods of the value of four hundred dollars from a vessel without a permit will subject the vessel to forfeiture. But, if a vessel were seized for landing goods of the acknowledged value of not more than fifty dollars, it would be impossible for the Court to hold, that there was any justifiable or probable cause for the seizure of the vessel. In truth, therefore, whether there was any false swearing or not, or any fraudulent concealment, or not, by the master, it is clear, that the appellate Court proceeded in its sentence upon the fact, that the illegal landing of six bags of beans was the sole cause of the seizure; and that, consequently, it was without any justifiable or probable cause in law or in fact. This view of the matter disposes of the whole merits of the defence; and it is unnecessary to discuss the other points, incidentally suggested at the argument. Upon the whole, my opinion is, that the loss is clearly a total loss within the policy; and that the case does not fall within the clause exempting the underwriters from losses and charges and damages occasioned by seizure or detention, on account of illicit or prohibited trade. Cocker et al. v. Franklin Hemp and Bagging Company. ROBERT COCKER AND OTHERS บ. FRANKLIN HEMP AND BAGGING COMPANY. In cases of disagreement between parties in regard to interrogatories and cross interrogatories, they should be referred to a Master in Chancery to be settled by him, subject to the ultimate review of the Court upon an appeal from such report. Exceptions to interrogatories or cross interrogatories should be propounded as objections, before the commission issues, or they will be deemed waived. But ASSUMPSIT for goods bargained and sold. Plea, the general issue. At a former term, upon a trial of the cause the jury disagreed, and no verdict was given. At the present term, a commission was moved for by the defendants to examine witnesses in England, in support of their defence, and the motion was granted by the Court. Interrogatories and cross interrogatories were filed according to the rules of the Court. exceptions were taken by the plaintiffs, to the second, fourth, fifth, sixth, ninth, tenth, eleventh, and twelfth interrogatories of the defendants; and by the defendants to the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and nineteenth cross interrogatories of the plaintiffs. The exceptions were briefly argued by Bartlett, for the defendants, and by Loring and Dehon, for the plaintiffs. STORY J. Applications to review interrogatories in cases of this sort are rare in this Court. And I wish, therefore, to say a few words as to the proper course of practice. In general, it seems to me, the most fit course is, that in cases of disagreement between the parties as to the form of the interrogatories and cross interrogatories, it should be referred to a master to settle the proper form of them, subject, of course, Cocker et al. v. Franklin Hemp and Bagging Company. to an ultimate review by the Court upon an appeal from his decision and report. In this way, by a hearing of the parties, as to the points in issue, the master will generally be able to direct the ultimate form of the interrogatories, so as to make them satisfactory to the parties. In reviewing interrogatories, it is impossible, in many cases, to decide, whether the interrogatory itself, or the particular form, in which it is propounded, is the proper one or not, without a knowledge of the general merits of the cause, or of the points in issue between the parties. Under such circumstances, it seems proper, that the Court should reserve their ultimate decision until the trial in all doubtful cases, so that the party affected thereby may have a full opportunity to file exceptions to the ruling of the Court, and thus to bring the matter under the review of the appellate Court, or to move for a new trial. I shall deem it my duty generally to act upon this course of practice, as best adapted to secure the rights of all parties. When, therefore, exceptions are intended to be taken to any particular interrogatories or cross interrogatories, they should be propounded, as objections, before the commission issues, otherwise they will be deemed to be waived. When objected to, if I entertain doubts as to their relevancy or propriety, I shall let them go, and reserve the matter for a final hearing at the trial. If I entertain no doubt, that they are irrelevant or improper, I shall not hesitate to overrule them, and order them to be struck out. In the present case I have varied the form of some of the cross interrogatories, and, with this alteration, I have allowed them. I overrule all the exceptions, taken by the defendants to the cross interrogatories, except to the nineteenth, which I allow, and direct the same to be suppressed. I overrule all the exceptions taken by the plaintiffs to the interrogatories of the defendants, except to the eleventh and twelfth, which I allow, and direct the same to be suppressed. Cocker v. Franklin Hemp and Bagging Company. I do not mean to be understood, as being perfectly satisfied, that some of the exceptions taken by the parties may not be good to others of the interrogatories and cross interrogatories. But I desire to reserve a final opinion thereon, until the hearing at the trial. CIRCUIT COURT OF THE UNITED STATES. Spring Circuit. MAINE, MAY TERM, 1840, AT PORTLAND. BEFORE {Hon. ASHUR WARE, District Judge. OTIS DANIEL v. WILLIAM C. MITCHELL AND OTHERS. The rule in equity is, that an answer, responsive to the allegations and charges made in the bill, and containing clear and positive denials thereof, must prevail, unless it is overcome by the testimony of two witnesses, or by one witness and other attendant circumstances, supplying the want of another witness. A bargain, founded upon material misrepresentations of matters of fact, even though they were inadvertently made through the mutual mistake of the parties, or by the mistake of the grantors alone, will be annulled in equity. In equity, mistake as well as fraud, in any representation of a fact, material to the contract, furnishes a sufficient ground to set it aside, and to declare it a nullity. A contract was made by certain parties, wherein it was agreed, that one party should sell and the other should purchase a certain tract of timber-land in the State of Maine, and if, upon an exploration, it did not contain sixty millions of pine timber, and there was not a stream running through it, which would, with an ordinary freshet, carry logs from the tract to the Kennebec river, without difficulty, the agreement should be void. The parties procured an exploration, and upon a favorable report of their agent, purchased the tract, taking a deed of the same, and making the stipulated payments. It subsequently appeared, that there was a gross mistake in the estimation of the quantity of timber, that the exploration was not made entirely upon the tract in question, but partly upon an adjacent one, and that the pine timber did |