Boston." By the terms of the bottomry | bond, the "vessel, her tackle, apparel, furniture, and freight, as per charter party," were hypothecated. If we assume, in favor of the defendant, that the master of the vessel intended to include in the bottomry bond the entire freight payable for the round voyage, we are still of opinion that the master had not the power to include it, since it was not liable to the danger of perishing by reason of a maritime risk. The language of the charter party is peculiar. The parties evidently intended to provide for two contingencies, -the arrival of the vessel, and its nonarrival. On the facts of the case we have no doubt that the vessel was "lost," within the meaning of that term in the charter party, although very possibly we might be constrained to hold that the bond could be enforced against salvage of the wreck, if any could be found. Insurance Co. v. Gossler, 96 U. S. 645. In The Staffordshire, L. R. 4 P. C. 194, it was held by the privy council, after much considera. tion, that freight to be earned on a voyage entered upon after the maturity of the bond could not be hypothecated. It was said by Lord Justice MELLISH: "By the very nature of a bottomry bond, the person who takes it is to become liable for the maritime risk, and therefore nothing can be hypothecated, except something that is in danger of perishing by the maritime risk during the time that the bond is running.” Id. 210. See, also, The Draco, 2 Sum. 157, 186; The Indomitable, Swab. 446. For the same reason, if freight is pledged, the charterer is entitled, as against the bondholder, to deduct from the freight payable at the end of the voyage any advances that have been made before the making of the bond. The Karnak, L. R. 2 P. C. 505; The John, 3 W. Rob. 170; The Cynthia, 16 Jur. 749. The principal case upon which the defendant relies in support of his contention is that of The Zephyr, 3 Mason, 341. In that case the vessel was bound on a voyage from Messina to Boston, with a cargo of fruit. On the way she was compelled by sea perils to put into Lisbon for repairs, and there a bond was given on the ship and freight. In the district court an allowance of freight for the voyage from Lisbon to Boston was made, excluding what might be considered a pro rata freight from Messina to Lisbon. This was reversed by Mr. Justice STORY in the circuit court, and it was held that the bond covered freight for the whole voyage; and that learned jurist said: "Upon any other construction where the vessel is repaired at an intermediate port, without any change of her cargo, no freight at all would be hypothecated; for no distinct freight would grow due for the voyage from the port of repairs. The freight ultimately paid would not be divisible. It would be the entire freight for the fulfillment of the original contract for the whole voyage, and not a pro rata freight, as upon a receipt and delivery at the intermediate port. When the parties pledge freight, it must, in the absence of all counter proofs, be presumed that they meant the freight to be earned by the

ship in the course of the voyage which has been interrupted by the disaster." In the case of The Zephyr, there having been no delivery of good at the intermediate port, and acceptance by the owner, the doctrine of freight pro rata itineris was not applicable; and the entire freight, being at risk, was held to be covered by the bond. In the case of The Eliza's Cargo, 1 Low. 83, on which the defendant also relied, the vessel was chartered for a voyage from Boston to Auscayes, in San Domingo, and back to Boston, at $1,200 for the round voyage, one half of the charter to be earned on delivery of the cargo at Auscayes. The question was whether the master of the vessel had a lien on the homeward cargo for the entire charter, the goods having been shipped on a bill of lading by the terms of which freight was payable "as per charter party. It was held that he had such a lien. In regard to the clause, "one half the charter to be earned," etc., Judge LOWELL said: "The agreement that one half the freight should be earned at the out port is intended to regulate the rights of the parties between themselves and with underwriters of freight, in case of a loss of the vessel. One-half of the freight is put at risk on each trip." We have no occasion to question the correctness of the point decided; and the words last quoted are in favor of our view, that only the freight of the homeward voyage was at risk when the bond in the case at bar was given, and we are of opinion that only the homeward freight could be included in the bond.

The next question is as to demurrage. The defendant's contention is that, as "demurrage is only extended freight," it is included in the bond under the clause, "freight as per charter party." That "demurrage is only an extended freight" was said by Mr. Justice HEATH in Jesson v. Solly, 4 Taunt. 52, and this remark has been frequently repeated since. Hall v. Barker, 64 Me. 339, 343; Sprague v. West, Abb. Adm. 548, 554; Donaldson v. McDowell, 1 Holmes, 290, 292; The Giles Loring, 48 Fed. Rep. 463, 473; Hawgood v. One Thousand, Three Hundred and Ten Tons of Coal, 21 Fed. Rep. 686. These were all cases against the owner or the consignee of cargo for the improper detention of the Vessel. See, also, Coggeshall v. Read, 5 Pick. 454, 460. No case has been called to our attention by the learned counsel for the defendant, where a sum due for demurrage has been held to be included in a bottomry bond under the name of "freight." The demurrage provided for by the charter party had been earned before the bond was executed, and cannot be said to have been at risk. Moreover, we should be slow to hold, where the charter party contained specific clauses relating to both freight and demurrage, and the bond hypothecated the "freight as per charter party," that the parties intended to include the demurrage. As to the advances at Surinam on account of the freight, we are of opinion that they are to be deducted from the outward freight. With respect to the defendant's claim in set-off, there seems to be no dis

them the word applies with more propriety than to anything in the act itself. We hold that the proviso means that in all future reports to congress the court shall regard the administrator of the original sufferer, representing the next of kin, as entitled to the amounts found due, instead of the assignees in bankruptcy, wherever the original sufferers were declared bankrupts. The court will, how. ever, find the fact of adjudication in bank. ruptcy and the appointment of assignees, and will report the same for the information of congress. If the administrator obtains the consent of the assignee in bankruptcy in this and other cases now pending, he may come in on motion, and be substituted as claimant."

In examining the appropriation act of March 3, 1891, (26 St. at Large, pp. 897908,) it will be found that, with few exceptions, the persons to whom the sums appropriated are the administrators of the estates of the original sufferers, or of the estates of assignees of the original sufferers, when the assignees were in fact assignees for value, or of the surviving partners of the original sufferers, when they were in partnership. Some are executors or surviving executors of the wills of the original sufferers, and the administrators are often designated as administrators de bonis non, and sometimes with the will annexed. There are six instances in the act in which the appropriations are to corporations, and in three of these the corporations are described as administrators, viz.: On the schooner Mary, "The Rhode Island Hospital Trust Company, three thousand three hundred dollars;" on the brig Mary, "John Stewart, receiver of the Baltimore Insurance Company, eleven thousand dollars;" on the schooner Emily, "John Stewart, receiver of the Baltimore Insurance Com pany, twelve thousand eight hundred and sixty dollars;" on the ship Triumph, "Safe Deposit & Trust Company of Baltimore, administrator of Alexander Macolm, two thousand three hundred dollars;" on the ship Raven, "The Pennsylvania Company for Insurance on Lives and Granting Annuities, administrators of Thomas M. Willing, deceased, surviving partner of Willing and Francis, seven hundred and eighty-four dollars;" on the schooner Frederick "The Union Trust Company of New York, administrator of Jacob Doty, deceased, twenty-one thousand eight hundred and thirty dollars." There is one appropriation to a trustee, viz., on the ship Rosanna, "James S. Humbird, trustee, and so forth, sixty-six thousand five hundred and sixty dollars." Congress seems generally to have approved the view of the law taken by the court of claims, except in cases "where the original sufferers were adjudicated bankrupt."

It is plain that the persons named in the act are to be paid the sums of money therein appropriated, if they bring themselves within the terms of the proviso. The substantial difference between the appropriation act and the reports of the court of claims which were then before congress is that all adjudications to as. signees in bankruptcy were stricken out

of the appropriation bill, "so far as their representative character appeared in the language of the act." The proviso may well be taken to mean that in the future the court of claims shall make no awards in favor of the assignees of bankrupts when the original sufferers had become bankrupt, but the proviso does not deal with the bankruptcy of other persons than the original sufferers. The act itself regards the administrators or executors of the estates of the original sufferers as the persons to whom the money should be paid when the individual claimant is a natural person, in distinction from a corporation, and the proviso applies in terms to such cases. The court of claims had decided that an insurer who had paid a loss was an original sufferer to the extent of the money paid, and that certain assignees for value from an original sufferer must be regarded as the owners of the claims whose representatives could prosecute them, (Holbrook's Case, 21 Ct. Cl. 434; Adams' Case, 26 Ct. Cl. 249;) and the act made appropriations accordingly. The personal representatives or legal representatives of an individual claimant must usually, if not always, be the executor or administrator of his estate, and the next of kin must be the next of kin of the original sufferers whom such executor or administrator can represent; and the court which granted the administration is the court to certify “that the legal representatives have given adequate security for the legal disbursement of the awards." As the next of kin are the next of kin of the original sufferer, to be represented usually, if not always, by the administrator or executor of his estate, we think that the next of kin must be ascertained as of the death of the original sufferer. This is the general rule when next of kin take property by bequest or descent. The court of claims dealt with these claims as property after the manner of the Alabama and other claims. Williams v. Heard, 140U. S. 529, 11 Sup. Ct. Rep. 885. Congress, so far as it made appropriatious for the payment of the claims, appears to have so dealt with them, except in the case of the bankruptcy of the original sufferers. The proviso concerning the next of kin may perhaps be taken to indicate that congress did not intend that the awards should be paid to or for the benefit of the creditors of the original sufferers, but still congress regarded the money to be paid as a part of the estates of the original sufferers. Congress did not concern itself with the bankruptcy of the next of kin or with their creditors. If congress had intended that in all cases the awards should be paid to or for the benefit of these next of kin of the original sufferers who were living at the date of the act, or at the date of the awards, it would have been easy to say so in a few words. In the case of a partnership the money is to be paid to the administrator or executor of the estate of the surviving partner, but it must, we think, be taken to belong to the estates of the several partners according to their proportionate interests. It is not necessary in the present case to determine whether by "next of kin" con

gress meant nearest kindred or the distributees of personal property who at the time of the death of the original sufferers would take intestate property under the laws of their domicile, or legatees under wills when the original sufferers left wills. It is not even necessary in the present case to determine whether the creditors of the estate of Crowell Hatch are excluded, be cause it does not appear that there are any. It is agreed that his estate has always been solvent, and, if there are creditors, they must long ago have been paid in full. It is probable that it never occurred to congress that, except in case of bankruptcy, there could be existing creditors who, under the laws of the domicile of the original sufferers, would now have valid claims against their estates. We assume, however, that it was the intention of congress that the administrators should receive the money solely for the next of kin of the original sufferers. We are of opinion that the next of kin are to be ascertained as of the date of the death of Crowell Hatch, whichever of the meanings suggested is regarded as the true construction of the phrase "next of kin." Since the argument of this case the snpreme court of Pennsylvania has rendered a decision which takes a similar view of the meaning of the proviso. In re Clement's Case, (Pa. Sup.) 24 Atl. Rep. 631. The decision of the supreme court of the District of Columbia is contra. Gardner v. Clarke, 20 Wash. Law Rep. 2. Decree affirmed.

COMMONWEALTH V. PARSONS.1 Supreme Judicial Court of Massachusetts. Suffolk. May 8, 1885.)

IMPANELING JUROR-HARMLESS MISTAKE. Under Pub. St. c. 170, § 40, providing that no "irregularity in the * impaneling of jurors shall be sufficient to set aside a verdict, unless the party making the objection was injured by the irregularity," the fact that the wrong man, but a qualified juror, by mistake took his scat in the jury box, in answer to a name called by the clerk, is no ground for setting aside the verdict, the mistake not being discov ered till after the verdict was rendered.

Exceptions from superior court, Suffolk county.

Commonwealth against Charles M. Parsons. Defendant was convicted, and excepts. Exceptions overruled.

F. J. Stimson, Asst. Atty. Gen., and E. J. Sherman, Atty. Gen., for the Commonwealth. P. J. Casey, for defendant.

MORTON, C. J. The statute provides that "no irregularity in a writ of venire facias, or in the drawing, summoning, returning, or impaneling of jurors shall be sufficient to set aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the returning of the verdict." Pub. St. c. 170, § 40. In the case at bar it appeared, upon a motion

"This case, filed May 8, 1885, is now published by request, with others, in order that the Northeastern Reporter may cover all cases in volume 139, Massachusetts Reports.

for a new trial, that at the September term, when the defendant was tried, Edward W. Dailey and Alfred L. Bailey were in attendance as jurors, duly drawn, summoned, and qualified. In impaneling the jury for the trial, the clerk drew from the box and called the name of said Dailey. By reason of a misapprehension on the part of both jurors as to the name called, Bailey took his seat on the jury, was sworn, and served during the trial. The mistake was not discovered until the December term of the court. Bailey was a competent juror, so that the mistake did not result in getting upon the jury a man who was not qualified to serve as a juror. So far as the exercise of the defendant's right of challenge depended upon the inspection of the juror, it is clear that the mistake in name is immaterial. If the defendant, having no knowledge of the person of the juror, had, from an inquiry as to his antecedents, desired or intended to challenge him if called, a case might be presented where the mistake in name would abridge his right of challenge, and thus injure him. But in the case at bar there was no evidence or pretense of any such injury. The case presented is one of an irregularity in impaneling the jury by which the defendant was not injured. It falls within the provisions of the statute, and the superior court rightly ruled that the defendant was not of right entitled to a new trial. Exceptions overruled.

NOYES V. JOHNSON.2

(Supreme Judicial Court of Massachusetts. Suffolk. June 19, 1885.)

RIGHTS OF VENDEE-INSUFFICIENT TITLE.

Where a contract for the purchase of land stipulates that if, upon examination of the title, it shall appear that anything needs to be done in order to perfect it, which the vendor is unable to do in a certain time, the sale is to be void, the vendor cannot compel the purchaser to take a title by adverse possession depending on a long and difficult investigation of facts.

Case reserved from supreme judicial court, Suffolk county; FIELD, Judge.

Bill in equity by Mary M. Noyes against Samuel Johnson to compel the specific performance of a contract to purchase land. The contract was as follows: "Ten days given to examine title; and if, upon examination of the records, it shall appear that any material act or thing is necessary to be done or performed in order to perfect the title to said premises, which the seller is unable to do or perform within a reasonable time, not exceeding sixty days from date hereof, then the sale to be roid at the option of either party." Plaintiff's title depended solely on adverse possession. Case reserved. Bill dismissed. E. M. Johnson, for plaintiff. C. H. Fiske and G. A. Dary, for defendant.

ALLEN, J. By the terms and conditions of the sale, it was implied that the purchaser should have a good title by

"This case, filed June 19, 1885, is now published by request, with others, in order that the Northeastern Reporter may cover all cases in volume 139, Massachusetts Reports.