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chant vessel of the United States, and be punished according to the laws of the United States relating to such vessels and offenses on the high seas. It seems to us impossible to escape the conclusion that all that was intended was to afford governmental sanction and protection to the exercise of a commercial privilege, by which guano might be obtained and furnished for the use of agriculture in the United States; and it does not seem to us maintainable that, by extending this sort of protection for this purpose to an enterprise to be carried on upon small, uninhabitable coral islands in remote seas, the act of congress extended to them the common-law docrines applicable to heritable estates in land in highly civilized communities, including the widow's right of dower in lands of her husband, disposed of by him in his life-time without her concurrence. Dower is always dependent upon the lex loci rei site, and it is obvious that no system of law has ever been established on the island of Nevassa, except so far as, for the punishment of offenses by those temporarily occupying it, the maritime law with regard to offenses upon ships of the United States has been made applicable to it. No analogy, such as counsel have suggested, it seems to us, can properly be drawn applicable to these islands from the titles to lands in the northwest territorial domain of the United States, or the policy established with regard to them by the ordinance of 1787. That whole ordinance looked to the early settlement and ownership of the land by citizens of the United States, and to the establishment of permanent local governments by the persons who should become resident proprietors of the soil. In the case of these islands there is no ownership of the soil, except that of mere occupancy, and no patent or grant emanates from the United States to the occupant, nor anything approaching to it in character. The act of congress recognizes the assigns of the discoverer as succeeding to his rights, and by the act of April 2, 1872, (17 St. at Large, c. 81, p. 48,) the provisions of the original act are extended to the widow, heirs, executors, and administrators of the discoverer when he shall have died before perfecting his proof of discovery, or fully complying with the other provisions of the law. This legislation is far from establishing a right of dower in the widow. The widow, it is true, is mentioned; but by mentioning also executors and administrators the law negatives the idea of an estate in realty, and by mentioning all the persons who might by any law of succession be entitled to any property of a decedent, it merely provides that any such person being entitled would be recognized as standing in the place of the deceased discoverer. The use of the words, "widow, heirs, executors, or administrators," does not import that congress intended to legislate that the discoverer's right was to be regarded either as realty or personalty, but that whoever by the law of succession governing the decedent's estate might be entitled should be recognized. There is a proviso to this act of April 2, 1872, which is in these words: "Provided that nothing herein contained shall be held to impair any rights of discovery or any assignment by a discoverer heretofore recognized by the government of the United States." So that, if by mentioning the widow in the act of April 2, 1872, it could be maintained that any additional

right or estate was conceded to her, it could not aid the petitioner in this case, as it is alleged in the petition that the government did before. the passage of that act recognize the assignment by Peter Duncan to Cooper, and declared his assignee to be entitled to the rights secured by the law. In our judgment the demurrer must be sustained, and the petition dismissed.

WASHINGTON FIRE & MARINE INS. Co. v. CHESEBRO.

(Circuit Court, D. Connecticut. September Term, 1887.)

PRINCIPAL AND AGENT-LIABILITY OF AGENT TO PRINCIPAL.

Defendant, the agent of plaintiff, an insurance company, effected an insurance, and informed plaintiff thereof, upon which plaintiff, being dissatisfied, directed defendant to return the policy at once, saying that the risk was a prohibited one. Defendant, believing plaintiff misinformed as to the risk, so wrote, and held the policy. Plaintiff again directed the policy returned, which defendant did, but before notifying the insured thereof a loss by fire occurred which plaintiff was compelled to pay. Held, that defendant's disobedience of peremptory orders rendered him liable for the amount plaintiff had been compelled to pay.

At Law.

It

Action by the Washington Fire and Marine Insurance Company against Charles E. Chesebro, its agent, for negligence and disobedience of orders, whereby the plaintiff had been compelled to pay a loss. appeared that plaintiff had ordered the insurance canceled, the policy still being in defendant's hands, as soon as they were informed of its having been effected, saying: "Please at once relieve us of the risk. The property in itself, and the exposure to the same, would make it prohibited with us. Let us have the policy, please, by return mail." The defendant, thinking the company misinformed as the risk, so wrote, and stated that he would hold the policy, which he had not yet written, until further orders from them. Immediately on receipt plaintiff again instructed defendant to return the policy, which he did. Before defendant notified the insured of the cancellation, the property was burned, and plaintiff paid the loss. Defendant claimed that he did not receive the last letter until the day the building burned, and, owing to the absence of the owners, could not notify them, and offered evidence tending to prove this fact. Plaintiff offered evidence to prove that the letter should in due course of mail have been received two or three days before the fire, and that in fact the letter from defendant containing the policy was received by them before the fire. Defendant's reason for believing plaintiff misinformed as to the risk was that the map of the village showed an exposure to an iron foundry, which no longer existed. After the jury were instructed as stated in the opinion, they found for plaintiff the sum of $1,548.43, the full amount of the loss paid, with interest and costs. A. P. Hyde, for plaintiff.

C. E. Perkins and Charles E. Searls, for defendant.

SHIPMAN, J., (charging jury.) 1. It being admitted that the defendant was agent for the plaintiff, it was the duty of the defendant, upon receipt of the notice, dated July 31, 1885, peremptorily ordering him to cancel the risk, to proceed to do so with all reasonable diligence.

2. It being admitted that the office of the agent was within five minutes' walk of the office and place of business of E. T. Whitmore & Co., the insured, the agent's neglect to cancel said policy for a period of more than six days after the receipt of said peremptory order was such a neglect of duty as would render the defendant liable to the plaintiff for the loss incurred by the plaintiff in consequence thereof.

3. That the delay after the receipt of the notice dated July 31st, is not excused by the fact-if it should be found-that the agent believed that the company were mistaken as to the safety or danger of the risk, or as to the wisdom of retaining the risk.

4. That if the agent delayed complying with the peremptory orders of the company to cancel the risk, and did so delay from a mistaken view of the safety of the risk and the wisdom of canceling it, or in the hope of persuading the plaintiff to continue the risk, the delay in the mean time was at his own peril and at his own risk if a fire should occur.

5. If the second order to cancel, dated the 7th day of August, 1885, was received by the agent in such season that he had one or two days before the day of the fire in which to cancel the risk, and he made no attempt so to do, such neglect on the part of the defendant was a breach of his duty, and would render him liable for the damages which the company suffered in consequence thereof.

The court further charged, adopting the language in the case of Courcier v. Ritter, 4 Wash. C. C. 551, as to instructions to an agent:

"If the order leaves him a discretion, the law requires of him nothing further than the exercise of a sound, honest judgment. But if the order be free from ambiguity, is positive and unqualified, it must be rigidly obeyed, if it be practicable; and no motive connected with the interest of the principal, however honestly entertained, or however wisely adopted, can excuse a breach of it."

CLARKE . AMERICAN DOCK & IMPROVEMENT Co. et al.

(Circuit Court, S. D. New York. July 3, 1888.)

DAMAGES FOR PERSONAL TORT-EXCESSIVE-FALSE IMPRISONMENT-MALICIOUS PROSECUTION.

Where plaintiff, a respectable woman, was arrested at the instigation of defendants upon false charges of a forcible entry into a house of one of defendants, where she and her family had been living, and of an assault upon the other defendant, and was committed to jail with disorderly women, and required to give sureties of the peace without trial, and the arrest was procured without reasonable or probable cause, for the purpose of keeping plaintiff

away from the house until defendant could put her things out and tear down the house, a verdict of $4,000, in an action for malicious prosecution and false imprisonment, is not so manifestly excessive as to require a new trial.1

At Law. On motion for new trial.

T. C. Campbell and H. S. Ogden, for plaintiff.

R. W. De Forrest, for defendants.

WHEELER, J. This is an action for malicious prosecution and false imprisonment. The jury found a verdict for the plaintiff with $4,000 damages. The defendants have moved for a new trial solely because of excessive damages. In Gilbert v. Burtenshaw, Cowp. 230, on a similar motion in a similar action, Lord MANSFIELD said:

"I should be sorry to say that in cases of personal torts no new trial should ever be granted for damages which manifestly show the jury to have been actuated by passion, partiality, or prejudice. But it is not to be done without very strong grounds indeed, and such as carry internal evidence of intemperance in the minds of the jury. It is by no means to be done where the court may feel that, if they had been on the jury, they would have given less damages, or where they might think the jury themselves would have completely discharged their duty in giving a less sum. Of all the cases left to a jury none is more emphatically left to their sound discretion than such a case as this; and unless it appears that the damages are flagrantly outrageous and extravagant, it is difficult for the court to draw the line."

In Whipple v. Manufacturing Co., 2 Story, 661, Mr. Justice STORY said that a verdict should not be set aside for excessive damages in cases of tort, "unless the court can clearly see that the jury have committed some very gross and palpable error, or have acted under some improper bias, influence, or prejudice, or have totally mistaken the rules of law by which the damages are to be regulated." In Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. Rep. 501, this language of Mr. Justice STORY is quoted with approval, several of the many other cases on the subject are reviewed, and the court, by Mr. Justice MATTHEWs, adds:

"In no case is it permissible for the court to substitute itself for the jury, and compel a compliance on the part of the latter with its own view of the facts in evidence as the standard and measure of that justice which the jury itself is the appointed constitutional tribunal to award."

In this case the plaintiff was, so far as has been shown or is claimed, a respectable woman, the wife of a ship carpenter, and the mother of a family of six daughters, some of whom were grown up and away, and others were small and at home. She was arrested at the instigation of the defendants on what the jury must have found to be false charges of forcible entry into a house of one of the defendants, where she had been living with her family, and of an assault upon the other defendant, and of a gross breach of the peace, and taken before a police court, and committed to jail with disorderly women, in default of bail immediately required under pretense of awaiting trial, and afterwards required to give sureties of the peace without trial, without any reasonable or probable

'See note at end of case.

cause, for the purpose of getting and keeping her away from the house. until the defendants could put out her things and tear down the house. The actual pecuniary damages might be small; but the disgrace, humiliation, and shame of being arrested and sent to jail on such charges, for the sense and suffering of which she was entitled to recover damages, might be great. What would be adequate compensation could be measured by no standard, and the amount might properly be enhanced by the wanton disregard of the plaintiff's personal rights in taking such proceedings. Day v. Woodworth, 13 How. 363. It must rest in the judgment and discretion of the jury, and remain there, unless the jury are clearly made to appear to have departed from the exercise of their judgment and discretion. There is nothing shown nor claimed in that direction unless it is to be inferred from the amount of the verdict. That is not so very great, in view of all the circumstances of the case, as to show that it was reached otherwise than by considerate estimate. The motion cannot be granted but by an arbitrary exercise of the judgment of the court over that of the jury on a matter purely of fact confided by the law to that of the jury. This would be manifestly improper. Motion denied, and stay vacated.

NOTE.

DAMAGES-EXCESSIVE-IN ACTIONS EX DELICTO. In actions for damages for personal torts it is within the strict province of the jury to estimate the extent of the injury, and assess the damages; and unless there is a manifest abuse of this trust, such as to indicate passion, prejudice, partiality, or unaccountable caprice or corruption, the trial judge ought not to interfere, and grant a new trial; and where the trial judge, as shown by the record on appeal, has expressed his disapproval of the verdict as being excessive, yet refused to set it aside in order that the supreme court might pass upon the facts, the supreme court will not, upon the ground of such disapproval or dissatisfaction with the amount of the verdict, grant a new trial. Railroad Co. v. Roddy, (Tenn.) 5 S. W. Rep. 286. See, also, cases cited in note.

In Spear v. Hiles, (Wis.) 30 N. W. Rep. 506, which was an action for malicious prosecution, the following charge of the trial court was approved on appeal: "If the jury find that the defendant wantonly and maliciously caused the arrest of the plaintiff, with intent to injure his feelings, and disgrace him in the estimation of the public, the jury not only may, but they ought to, go further, and give punitory damages in such a sum as will be a warning to the defendant and all other persons not to commit such wrongs and injuries. Punitory damages are given in law as an admonition to the defendant and all other persons not to perpetrate similar wrongs, and consequently such damages, to be effectual, must have some relation to the financial ability of the defendant." See, further, on the subject of exemplary damages in actions ex delicto, the cases cited in note to above case.

As to the allowance of exemplary damages for maliciously suing out an attachment, see Rice v. Miller, (Tex.) 8 S. W. Řep. 317, and cases cited in note.

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