and the cost and delay of setting the mistake right by another suit; and so with the general idea of simplification came that of reducing the pleadings and practice in law and equity to a uniform system, so that the mere mysteries of procedure, such as were never attained, except by the few who possessed the highest skill and experience, should be dispensed with, and only that which was necessary for certainty should be retained.

But in this school of reformers there were two classes, one class were so enamored of the great boon of Anglo-Saxon liberty, and the guaranty of American freedom which was wrested by our English ancestors from the hands of tyranny, and guaranteed to us by constitutional protection, the great right of trial by jury, that they would make it universal in all cases, both civil and criminal. While another class was opposed to its extension under the new system beyond its former limits.

If it were an appropriate inquiry in this place, we might be tempted to question whether both classes were not wrong. The right of trial by jury in criminal cases, is worthy all the eulogies which have been heaped upon it by lawyers, politicians, patriots and statesmen. It is necessary to the maintainance of free government. It is that which distinguishes the criminal jurisprudence, where the common-law prevails with its regard for human life and liberty, with its humane and inpartial methods, from the despotic and inquisitorial criminal jurisprudence under the civil law as administered in continental Eu

rope. But it is a very grave question at the present day, whether the application of any part of this admiration for the jury system as now practiced in civil cases is not inappropriate. In other words it is questionable whether there is not more evil than good in our American trial by jury in civil cases. The allusion here is, however, a digression.

We proceed, therefore, as we had essayed to do, with the discussion of the result of the division of the reformers into two classes. In some of the States the one class was predominant, and the result was that the distinctions between actions at law and suits in equity were not only abolished, but the right of trial by jury was extended to all civil actions indiscriminately. In others while the distinction

was substantially abolished as to modes of pleading, yet recognizing the generally received theory, that a jury was hardly the tribunal for the trial of causes formerly cognizable in courts of equity, the distinction was so far preserved as to provide for different modes of trial. Thus we have in some of the States the petition in ordinary, and the petition in equity, the complaint and the complaint in equity simply indicating in most if not in all cases the single distinction in the modes of trial. In most States the constitutions provide that stitutions provide that trial by jury shall remain inviolate, which being interpreted means that in cases where, by the English common law, the parties are entitled to trial by jury, this right shall be preserved whatever form the procedure may take. And so where the distinction between law and equity has been totally abolished and all actions are denominated civil actions, it is held that the range of the constitutional provision referred to is not extended, and the legislature may provide other means for trying even civil actions than by jury, excepting in those cases where by the common law the party had a right of trial by jury. The result is, that notwithstanding the constitutional provisions, the legislature may provide for other modes of trial than by jury in all cases formerly cognizable by courts of equity, and consequently where this right of trial did not exist before the code reforms. It is questionable whether, if we recognize the right of trial by jury in civil actions as a necessity, there is much logical accuracy in the constitutional provisions, for in many cases the courts of law and equity had concurrent jurisdiction, and when the same subject matter is to be tried, and by the same class of evidence taken in the same way, the question whether it was formerly a case at law or a suit in equity could not have much influence upon the determination of the best method of trying the case. To illustrate: Before the codes, in case of fraudulent conveyance, where the lands fraudulently conveyed were subject to sale on execution, the creditor had his election to bring a bill in equity to set aside the conveyance and subject the fraudulently conveyed property to the payment of his debt, or to sell the property upon the execution in the first instance, buy it in and

bring ejectment. In the former case, being a suit in equity, the defendant had no right to a trial by jury. In the latter case, the action was at law, and either party had a right to trial by jury. Yet the cases involved precisely the same inquiry, and by the very same evidence, though then taken in different modes.

Now it is manifest that there is no necessity for a jury in the one case more than in the other. And although the distinction between law and equity procedure has been abolished,

two questions of constitutional law remain; and we must take the constitutional provisions as they are and not as we would have them.

The remainder of this article will be devoted, 1. To an inquiry as to the propriety of extending the right of trial by jury to that class of cases which were formerly cognizable in courts of equity, where the constitution leaves the legislature free to exercise discretion; and 2. To the expediency of modifying or abolishing the right where it has already been extended by code provisions.

1. The first branch of our inquiry, though not answered by anticipation, yet an opinion has been strongly intimated at least. In order to enter intelligently into this inquiry it is necessary to look casually, at least, at the duties to be performed by the triers of questions of fact or mixed questions of law and fact, such as arise in equity cases under the Chancery practice. For, although the forms may change, the questions to be determined, remain as formerly.

The examination, analysis and weighing of testimony under any circumstances, to be done intelligently and successfully, so as even to approximate right conclusions, requires more intelligence than can be possibly possessed by jurors without experience, without intelligence sufficient to understand the merits of the controversy even, let alone the intricacies and complications which surrouud almost all human transactions which are litigated. And when we add to these duties always imposed upon juries, that of applying the law to the facts as shown by the evidence, it becomes most ifest that men unused to legal investigations, unaccustomed to witness the facility, ingenuity and alacrity with which perjury is committed, and the ingenuity and skill with which

the same is glossed over by counsel, can not be the best triers either of pure questions of fact or questions of law and fact which are embraced in quite the larger number of all jury trials.

These statements are recognized by the profession everywhere, although stoutly denied to the public ear by the class of public speakers who gain success and reputation by this very want of qualification in the jurors, at the

same

time acknowledged by their actions which speak louder than words.

Another necessary ingredient which must enter into the qualifications of every capable and competent trier, is impartiality. Absolute impartiality in all cases is like all other human virtues unattainable. But the highest attainable impartiality is only compatible with learning and culture, and that indefinable thing aptly termed the judicial habit, whereby even by the force of careful and impartia hearing, sifting and weighing the evidence, the trier is lead almost with moral certainty to right conclusions.

These qualifications are not possessed by the average jurors. They are not and cannot be possessed by any jurors selected as at present they are either in this or any other country.

To illustrate this proposition by familiar examples. No man would voluntarily submit a controversy to a convention of his neighbors who knew the facts of the controversy. And, yet, this was virtually the origin of jury trials. No man would submit his controversy to a town meeting upon the evidence. Provisions are made in all the States for arbitrations, why are they neglected? Because they do not provide triers possessing the proper qualifications, besides the objections to their methods. And so, where under the code procedure referees are provided for, it is not required that the referee shall be a lawyer, yet in practice he nearly always is.

Another evidence of the position we maintain is that, where the judge is regarded as quite impartial, counsel who are confident of their case, usually, indeed almost always, prefer a trial by the court, and, as a matter of history, even in those cases where the right of trial by jury is preserved, and both sides are honestly contending for the right and have confidence in their sides of the case respect

ively, juries are largely dispensed with. If it be said that this argument applies as well to the trial of cases at law as in equity, as well to cases where the right of trial by jury remains inviolate as to cases where it is within the legislative discretion to provide other means of trial, we grant it; but this course of argument is thus generally adopted upon the principle that the greater includes the less. For if we show that as a general rule in all cases jurors are not the best triers, we have established the fact also that they are not the best triers in cases formerly cognizable in equity. If we have shown that even in civil cases at law jurors are not the best triers, a fortiori, as we shall see as we proceed, are they not the best triers in equity cases.

[To be continued.]

A. I.

ADMIRALTY-COLLISION-LIEN UPON IN

SURANCE-ABANDONMENT.

THE PESHTIGO.

of this collision, the Peshtigo was sunk, and with her cargo became a total loss; and that the collision and the injury therefrom were occasioned wholly without his privity or knowledge. To this plea exceptions were filed for insufficiency.

F. H. Canfield, for the libellant; J. J. Speed, for the respondent.

BROWN, J.:

The writs of garnishment in this case can only be supported upon the theory of a lien upon the amount of the policies. If the liability of the owner is limited to the value of the vessel and freight, irrespective of the insurance, there is no claim against him, and consequently nothing which will support the garnishment. Therefore, unless the lien of the libellant upon the vessel is transferred to the insurance money, this suit must fail. At common law, and also by the civil law and the general law maritime, the owner of a vessel is liable for damages occasioned by the negligence of the master and crew to the full extent of the injury sustained. The ordinary rule of responsibility of the principal for the acts of his agent obtains here, as in every other case; but long before the earliest English act upon the subject, a limit to such liability grew up among the maritime nations of Europe. "The ancient laws of Oleron, Wisby and the Hanse-towns contain no provisions on this sub

Michigan, June, 1879.

This was a libel in personam, promoted by Henry McMorran and Edward Fitzgerald, owners of the schooner St. Andrew, against Ransom W. Dunham, owner of the schooner Peshtigo, to recover damages occasioned by a collision between those vessels. The libel, in addition to the usual allegations of ownership and negligence, set forth that, at the time of the collision, the Peshtigo was insured in the Manhattan and Orient Mutual Insurance Companies; that by reason of such collision and the damage thereby occasioned to the Peshtigo, these companies had become, and were liable to pay to the respondent the full amount of their policies, and that libellants had a claim against said companies enforcible by garnishment. Writs of garnishment were issued against the companies, to which they made returns, admitting liability under the policies, and announcing their willingness to pay to whomsoever the court should order. The respondent, Dunham, incorporated in his answer a plea setting forth that, from the effects

law noticed by Roccus; but Vinius, an earlier author, states that by the law of Holland the owners are not chargeable beyond the value of the ship and the things that are in it." McLaughlin on Merchant Shipping, 110. This limit of liability was first incorporated in the law of England in the reign of George II, and in that of the United States in the year 1851; but the adjudications under it have not been numerous.

After a careful search, for precedents, I have not been able to find a single case in England, and but one in America where the precise question here involved has been passed upon. The absence of English authority is probably due to the fact that, by the law of England, the liability of the owner is limited to the value of the offending ship immediately before the collision, that is, in her undamaged state, while by the American and Continental law, the measure of liability is determined by the value of the ship immediately after the collision. In the United States the only reported case upon this point is that of the Norwich and New York Transportation Company, 8 Ben. 312, in which the learned Judge for the Eastern District of New York discusses the question at length, and comes to the conclusion that the owner is not liable in respect of the insurance moneys.

The continental authorities are full and explicit to the same effect. Article 216 of the Code of Commerce following the Hanseatic ordinance of 1614, and the French ordinance of 1681, declares that " every owner of a vessel is civilly responsible for the acts of the master in whatever relates to. the vessel and the voyage. This responsibility ceases on the abandonment of the vessel and

freight." Caumont discusses the question at length in his Dictionary of Maritime Law, page 31, title, "Abandonment." And his remarks are worthy of reproduction: Sec. 54. "When the owner has not seen fit to insure his vessel, it is sufficient that he abandon her with her freight, in order to free himself from responsibility for the engagements of the master. Nothing further is demanded. Now, if the owner has adjudged it prudent to effect an insurance, in consideration of a premium more or less in amount paid by him, it is evident that the lenders upon bottomry and shippers cannot deprive him of the fruits of a wise foresight, and receive the benefits of a contract to which they are strangers." Sec. 57. "It has, then, been very properly decided, 1. That the owner who, to free himself from loans contracted by the master in the course of the voyage, abandons the ship and freight, is not compelled to account to the lender beyond that for the proceeds of the insurance underwritten upon the ship. (Aix, February 8, 1832.)" 2." That the proprietor of the ship who effects an abandonment to the shipper is not held as including the value of the insurance. (Rennes, August 12, 1822.)" Sec. 57. "How could the owner of the ship be held to include in his abandonment the amount of insurance he has taken the precaution to put upon the vessel? Is not this insurance the consideration of the premium he has paid? Can this be affected by his guaranty of obligations contracted by the master? Ought not the relations established by law between the owner of the ship and the lender or shipper to be maintained quite independent of the contracts of insurance which each of them may make?" See also Bedarride (Code de Commerce, sec. 295.) "In the discussion which the projet de loi of 1841 called forth, certain courts, notably that of Aix, urged that the abandonment should include, besides the ship and freight, the amount of insurance which the owner had bargained for. This claim, which had already been made before the courts, was formally condemned."

So, too, Defresquet, in his pamphlet upon the Law of Collisions at Sea, discussing the right of abandonment, observes: "We remark, in conclusion, that if an abandonment has been made of a ship sunk by collision, the owner is not obliged to abandon at the same time the amount of his insurance. This was proposed at one time, but rejected."

These authorities seem to me to announce a sound principle of law and to be fortified by unanswerable reasons. The liability of the owner is limited to the value of the ship and freight. That liability ought not to be extended by a contract of indemnity made by him with a third party; in other words, the right of the injured party to reimbursement ought not to be dependent upon the contingency of a contract to which he was not a party, and with which he has no concern. He loses nothing which he would not have lost if the insurance had not existed. The contract of insurance is personal in its nature, and is a mere special

agreement with a party seeking to secure himself against apprehended loss on account of his interest in a particular subject matter, and not at all incidental to, or transferable with, the subject matter. May on Ins. sec. 6.

The shipper has no lien upon it for the non-delivery of his cargo. Clark v. Brown, 7 La. Ann., 342. Nor can even the master or crew have recourse to it in case of the loss of the vessel. Eymar v. Lawrence, 8 La. 42. See also Thayer v. Goodale, 4 La. 222; Steele v. Ins. Co. 17 Pa. 290; White v. Browne, 2 Cush. 412; Stillwell v. Staples, 19 N. Y. 401.

Further objection is made to the plea in this case, upon the ground that the owner has not taken the appropriate proceedings under sec. 4,284, and transferred his interest in the vessel and freight for the benefit of the libellants to a trustee as required by sec. 4,285. It is a sufficient answer to this to say that the plea sets forth a total loss of the vessel and cargo from which would also follow a total loss of freight, and that no formal abandonment is necessary in such cases. 2 Pars. on Mar. Ins. 107, 111, 120; Brown v. Wilkinson, 15 M. & W. 391.

Exceptions to the plea are overruled.

REMOVAL OF CAUSES.

FULTON V. GOLDEN.

United States Circuit Court, District of New Jersey, August, 1879.

Where an equity case is pending in a State court for several years after issue joined, and has not been brought to hearing in consequence of the neglect of parties to enforce the rules of the court for the taking of testimony: Held, that the petition for removal was filed too late when the case could have been first tried under the local laws and practice, at several terms before the filing of the petition.

On motion to remand

E. T. Green, for petitioner; J. Alex. Fulton, for defendant.

NIXON, J.:

This is a motion to remand the above stated cause to the Court of Chancery of the State of New Jersey, whence it was removed under the Act of March 3, 1875.

Two grounds are assigned for the motion. (1) Because the record does not show that this court has jurisdiction of the case. (2) Because the application for removal comes too late.

(1) With regard to the first it is sufficient to observe, that the petition alleges that the amount in dispute between the parties, exclusive of costs, exceeds the sum or value of five hundred dollars, and that the controversy in said suit is between citizens of different States, the petitioner, who is the sole party defendant, being a citizen of Pennsylvania, and the sole complainant a citizen of the State of Delaware.

A bond in the penal sum of two thousand dollars, with two sureties, residing in this State, was

filed with the petition; and as no question was raised in the State Court, or here, as to its sufficiency, it must be assumed to have been in compliance with the requirements of the law.

It was suggested, on the argument, that the cause should be remanded, because it did not appear that the State Court made an order of removal.

There is nothing in the Act of March 3, 1875, requiring such an order, and none is necessary. The jurisdiction of the State Court over the cause terminates with the filing of the petition and bond: Taylor v. Rockefeller, 7 Cent. L. J. 349; McMurdy v. Life Ins. Co., 4 W. N. 18.

(2) Whether the application for removal was made too late, depends upon the construction of the last recited Act, which materially changed the law in this respect.

Under the 12th section of the Judiciary Act, the application was required to be made by the defendant" at the time of entering his appearance in the State Court." He waived his right to remove the case, after he had in any manner submitted himself to the jurisdiction.

The several Acts of July 27th, 1866, and March 2d, 1867, enlarge the time, and under them the petition for removal might be made "at any time before the trial or final hearing of the cause or suit" in the State court. But the 3d section of the Act of March 3, 1875, again restricts the power of removal, in reference to the time, and requires the petition in the State court to be made and filed "before or at the term at which such cause could be first tried, and before the trial thereof."

What is the meaning of this expression "could be first tried ?" Does it mean "could be first tried" by the legislation of the State and the rules of practice of the State court, when the parties have been diligent in preparing the case for trial or hearing? Or does it mean "could be first tried" after the parties have put in their pleadings and got the case at issue, and have closed their testimony-years, it may be, after the suit was commenced? If the latter, then the right of removal would seem to depend upon the diligence or want of diligence of the litigants, rather than upon any designation of time in the law itself.

It must be confessed that the section is very defective in precision of expression or obviousness of meaning; but the change in the phraseology shows that Congress meant to abridge the right of removal, and to fix a definite time within which it was to be exercised. If the construction is adopted which the defendant urges, it would be in the power of the respective parties to keep a case pending through a series of years in the State court, by neglect to file the pleadings, or to conclude the taking of testimony, and then to procrastinate and still further delay the final hearing, by removal to a Federal tribunal.

The case under consideration affords abundant illustration of this. The bill of complaint was filed in the Court of Chancery of the State, July 22, 1873, and the subpœna was returnable on the 5th of August following. The defendant put in the plea of the pendency of a suit between the same parties for the same cause of action in a court of law in

the State of Pennsylvania, which the Chancellor overruled, and the defendant was ordered to answer the bill within thirty days from the 9th of December, 1874. On the 13th of January, 1875, the answer was filed, and on the 16th of February following the replication. The cause being thus at issue. February 16, 1875, the rule of the court required that the complainant should begin to take testimony on his part within thirty days after issue joined, and conclude the same in thirty days. (See 80th Rule.) Within fifteen days thereafter the defendant must commence taking testimony on his part, and conclude the same in thirty days. (Rule 81.) At the expiration of this time the complainant is required to proceed immediately, or by adjournment not exceeding ten days, with testimony to rebut the testimony of the defendant, or to sustain testimony on his part, impeached or contradicted by the defendant, and the defendant may afterwards produce counter rebutting evidence on his part; but such evidence shall not be continued for more than five days on each side. (Rule 83.)

By the 86th Rule, the time for taking testimony above limited shall not be extended, except by written consent, or by order of the court made upon notice. Under the provisions of Rule 15, if the complainant fails within ten days after the expiration of the time to take the testimony, to notice the cause for argument, the defendant is entitled to an order, of course, directing the complainant to show cause why the defendant should not be permitted to notice the cause for argument, and bring in the hearing thereof at the next stated term; and if cause be not shown to the contrary, the defendant is permitted to give the notice and bring on the hearing. The stated terms of the court are held on the first Tuesday of February, the third Tuesday of May and the third Tuesday of October, annually. If the foregoing rules had been observed in taking testimony the cause "could have been first tried" at the term of October, 1875. But it was not moved by either party then or afterwards, although at least eight stated terms of the court intervened before the 31st day of May, 1878, when the petition for removal was filed. To hold that the application was in time would be to affirm that no term of the Court of Chancery had been reached during these two and a half years, at which the cause could be tried under the legislation of the State and the rules of practice made pursuant thereto.

My attention has not been called to a case where the act has received construction, or where it has been necessary to give it a construction in this re. spect. But Judge Dillon, in his Treatise on the Removal of Causes, p. 57, and more especially in Ames v. Colorado Cent. R. R. Co., 4 Dill. 264, 4 Cent. L. J. 199, strongly intimates that where, under the local law and practice, a case could have been finally heard at a stated term, a removal is not in time after the expiration of said term. Much support also is given to this view by the reasoning of Drummond, J., in Scott v. Clinton & S. R. R. Co., 6 Biss. 529, in which the learned judge deplores the ambiguity of the language em