Brownson v. Wallace.

ing to the pleading as a whole, that it is clearly bad in sub

stance.

A declaration in this Court, founded upon a promissory note, and containing the statements contained in the plaintiff's. pleading, with such others as would be required to make it a good and sufficient declaration, would undoubtedly be a declaration in assumpsit, under which the plaintiff would be entitled to recover the damages sustained by him, to the extent properly claimed at the close of the declaration. The damages sustained and claimed are the very foundation of the action of assumpsit, and the claim of damages is, therefore, of the substance of the declaration. On the trial of an issue upon such a declaration, the verdict of the jury in the plaintiff's favor would be, that the defendant did undertake and promise, in manner and form as the plaintiff had within complained against him, and that they assessed the damages of the plaintiff, by reason of the premises, at, &c., over and above his costs and charges, &c.; and, in case the jury rendered a verdict for an amount of damages greater than that claimed in the declaration, the plaintiff would necessarily remit the excess, or the judgment would, as of course, be reversed on

error.

In the plaintiff's pleading in this suit, no damages are claimed; and, if any issue properly triable in this Court should be here joined on such a pleading, and the jury should render a verdict for the plaintiff, and give him damages, those damages could not be legally collected, because no damages are claimed in the pleading. This, it strikes me, is conclusive evidence that the pleading is bad in substance, and that the demurrer must be allowed. It is true, that the plaintiff demands judgment for the amount of the note proceeded on and interest, in the form used in complaints under the New York Code; but this is, in no just sense, a statement and claim of damages, in substance like that required in a declaration in this Court.

I am, also, strongly inclined to the opinion, that the plaintiff's pleading is bad, because it states no right in the plaintiff,

Brownson v. Wallace.

except one based and dependent upon the grant of letters of administration in the State of Iowa.

It is well settled, that the Courts of this State (and the Courts of the United States must follow the same rule of decision) cannot take notice of or regard letters testamentary or of administration granted in another State, and that such letters give no authority to sue here. Now, the only allegation of the plaintiff's right to the note proceeded on, or to demand payment thereof, is, that it was duly assigned or transferred by the maker, to De la Matyr, by De la Matyr to Minard, and by Minard to Ayrault; that Ayrault died in Iowa, intestate; that letters of administration upon his estate were granted to the plaintiff in Iowa; and "that the plaintiff, as administrator as aforesaid, is now the legal owner and holder of said note." It is not alleged, that the note had been delivered to the plaintiff, or that he is the "bearer," thereof: and the general allegation, that he is the legal owner and holder, if it would be equivalent to the allegation that he is the bearer, in a case where he prosecuted in his individual capacity, is so connected with and dependent upon the allegation of a grant of administration which this Court cannot recognize, that I cannot but think that, upon the ground of defective allegations in this respect, the demurrer must be held to be well taken. The allegation that the plaintiff is the legal owner and holder, is a statement of a conclusion of law, and the facts stated as the foundation for that conclusion show that the conclusion of law is not sustained by the facts stated, unless this Court regards and gives effect to the grant of letters of administration by means of which alone it is averred he became such legal owner and holder. Therefore, we cannot reject as surplusage the addition to the plaintiff's name which shows that he sues in his representative capacity, and we cannot recognize his existence in that representative capacity. It is probable that, under the authorities cited from the reports of the decisions of the Supreme Court of the State, the plaintiff would be entitled, under proper pleadings, in a suit brought by him in his individual capacity, to recover, upon the production and proof of

Yznaga v. Redfield.

the note here prosecuted, notwithstanding it might be proved that he came into possession of the note as administrator under the laws of Iowa; but it is not necessary now to discuss that question, or to determine whether the plaintiff can entitle himself to recover without taking out letters of administration in this State.

As this Court cannot regard the letters of administration granted in Iowa, the plaintiff is subject to the same rules in regard to costs as though he had sued in his individual capacity.

The defendant must have judgment upon the demurrer, with liberty to the plaintiff to amend his pleading within twenty days, on payment of costs.

ANTONIO YZNAGA AND OTHERS, vs. HEMAN J. REDFIELD.

Where a valuation of molasses in casks, in an invoice, is correct, but the quantity stated in the invoice is less than the actual quantity found on gauging, the case is not one for the imposition of a penalty for undervaluation, under § 8 of. the Act of July 30th, 1846, (9 U. S. Stat. at Large, 43.)

Where an invoice of molasses in casks does not specify the number of gallons, the case is one of undervaluation, and the penalty may properly be imposed.

(Before NELSON, J., Southern District of New York, October 29th, 1860.)

THIS was an action against the Collector of the port of New York to recover back a penalty of twenty per cent. imposed, for undervaluation, upon a cargo of molasses and sugar, imported from Cuba into that port.

Almon W. Griswold, for the plaintiffs.

Benjamin F. Dunning (Assistant District Attorney,) for the defendant.

NELSON, J. Upon gauging some of the casks in this case,

The Florida.

a greater number of gallons of molasses was found in them than was mentioned in the invoice, so that an excess was reported by the gauger and appraisers. The valuation of the article in the invoice was correct, but the quantity stated in the invoice was less than the quantity found in the casks. The case did not fall within the 8th section of the Act of July 30th, 1846, (9 U. S. Stat. at Large, 43.) That section is confined to the enhancement by the appraisers of the value of the goods in the foreign market at the time of exportation, to the amount of ten per cent. above the invoice value. The increase of the quantity is otherwise provided for. In this instance, the gauging corrected the error. The application of the penalty must not be extended by a strained construction. I think that the plaintiff is entitled to recover back the $520, with interest from the time it was paid.

As to the other casks, in respect to which the number of gallons contained in them was not specified in the invoice, the penalty was properly imposed. The case was one strictly of undervaluation, not of excess of quantity found by the gauger or appraisers. The general understanding, that a hogshead contains one hundred and ten gallons, when the quantity is not stated, is too indefinite to be relied on to change the result of this construction.

THE FLORIDA.

Where, on an appeal, in a suit in rem, in Admiralty, for a collision, the question, on the proofs, was a close one, as to which vessel was in fault, this Court refused to revise the decision of the District Court.

A speed of nine miles an hour, in the East river, in a crowd of vessels, is an unreasonable speed.

(Before NELSON, J., Southern District of New York, October 30th, 1860.)

THIS was a libel in rem, filed in the District Court, against

The Florida.

the steamship Florida, to recover damages for a collision between her and the barge Owen Gorman, while the latter was in tow of the tug New York, in the East river. After a decree for the libellant, the claimants appealed to this Court.

John E. Burrill, Jr., for the libellant.

Charles Donohue, for the claimants.

NELSON, J. The Florida had left pier No. 4 in the North river, and was bound for the Novelty Works, at the foot of Twelfth and Thirteenth streets, in the East river. The tug, with several barges in tow, the Gorman being the farthest from her on the larboard side, was also going up the East river, some distance ahead of the Florida, the latter being somewhat nearer the New York side. The witnesses on the part of the barge insist, that when the Florida overtook the tug, although there was sufficient room on either side for her. to have passed clear, she passed so near to the Gorman that her wheel struck the stern of the Gorman and occasioned the damage complained of. The witnesses on the part of the Florida insist, that when she reached within some two hundred feet of the tug, the latter suddenly sheered towards the New York side and produced the collision. The question is a close one on the proofs, and I am not inclined to revise the conclusions arrived at by the Court below, which held the Florida in fault. It appears that there was a sloop at the point of collision, between the Florida and the New York shore, and she had to pass between this vessel and the tug, and it may very well be that, in attempting to avoid the sloop, to which she was quite close, she unconsciously inclined towards the tug. The river, was, as usual, filled with vessels, and great care was necessary, in moving in any direction, to avoid a collision. The Florida was going, as admitted by her hands, at the rate of nine miles an hour, which, in the place, and under the circumstances, I am inclined to think was an unreasonable speed.

Decree affirmed.