We cannot reconcile it to our ideas of right and justice, that the voters of an entire precinct in an important and populous ward of the city of Chicago, shall be disfranchised by the neglect of the officer, who administered the oath of office to the judges and clerks of the election, to certify the fact, nor can we reconcile, on any principle, the refusal of the board to permit the jurats to be perfected. The amendment, if allowed, deprived no one of any right; it altered nothing, and was in furtherance of justice. The certificate and returns were full and complete. was no part of either. The plain duty of the board was to make the abstract from the returns, and give the certificate to the person who appeared by the returns to have received the highest vote. The question in all such cases should be, whom did a majority of the qualified voters elect? Forms should be made subservient to this inquiry, and should not rule in opposition to substance. The oath A literal compliance with prescribed forms is not required in any case, if the spirit of the law is not violated; and in all cases the intention of the voters clearly ascertained, should govern. Here has been a strict compliance with form, and the dearest right of freemen has, notwithstanding, been stricken down, and the plain and manifest intention of more than two hundred voters frustrated. There being, then, no other specific remedy in the case, a peremptory writ of mandamus will be awarded to L. P. Hilliard, clerk of the Cook County Court, commanding him to issue a certificate of election to the relator, as a representative to the General Assembly, duly elected from the sixtieth Representative District in that county. The foregoing opinion has been forwarded to us by the courtesy of Mr. Fuller, the relator. And we thank him most sincerely, on behalf of the profession and of all lovers of good order, not merely for making the decision public at an early day, which its importance would seem to justify, but more especially for bringing the question to judgment, and exposing the short-sighted and illiberal policy of narrow-minded and partisan public functionaries, in magnifying quibbles and refusing all remedy, by way of amendment, to the utter disfranchisement of the freemen and of their duly elected representative. We know nothing of the facts in this particular case, even by report. For aught we know, the canvassers here may have acted in direct conflict with their political prepossessions, and given the certificate to one opposed to their own political views, when one of their own party was elected; or both the competitors for the certificate may have been of the same political party. We are glad we do not know how these facts are. We hope they are such as not to implicate the canvassers in any suspicion of partiality growing out of political and partisan preferences. But there has been so much of this duplicity and evasion in our country in high places, in giving certificates to candidates in the real minority of votes, in order to enable them thereby to defeat the will of the actual majority, by thrusting themselves into a place to which they were never elected, and thus virtually and practically defeating the rights both of the electors and the elected, that we deem it especially creditable, both to the candidate and to the Court, to bring the question thus speedily to a just determination. If Mr. Fuller does nothing more as the representative of the district, he will be gratefully remembered by all lovers of good order and decorum. We are glad to believe that it was a mere error of judgment with the canvassers, and that they really gave the certificate to one opposed to their own political preferences because they sincerely believed the informality, in the jurats of the oath not having been signed by the officers swearing the judges of the election, rendered their return fatally defective. But the cases which we have before known have not always been of this character. Canvassers of elections are too apt to think that everything is fair in politics, and that the end justifies the means. We are therefore glad to furnish so healthy a precedent for the speedy correction of such errors. There can be no doubt, we think, of The the soundness of the decision. opinion of MORTON, J., in Strong's Case, 20 Pick. R. 484, where the whole subject is examined in a most thorough and exhaustive manner, fully sustains the opinion of Judge BREESE in the principal case, and the authorities will be found there fully digested and collated. See also State ex rel. Danforth vs. HunI. F. R. ter, 28 Verm. R. 594. District Court of the United States for the Northern District of New York. In Admiralty. HEMAN NORTON STRONG vs. A certain quantity of Wheat, being the cargo of the schooner Convoy; FREDERICK T. CARRINGTON and WILLIAM J. PRESTON, Claimants. A carrier, finding, on his arrival at the end of his portion of the route, that an unusual press of business there would prevent his delivery of his freight for several days, is not thereby justified in taking the goods to another place and forwarding them from there to the consignees. A cargo was shipped to a certain port, to be there forwarded by railroad to the consignees. The master of the vessel, after waiting two days and finding that his vessel could not be discharged for several days more, sailed to another port in the same State, and discharged his cargo there: Held, That his claim for demurrage at the first port could not be allowed. The custom of the lake ports, that on the failure of the consignees to provide for the delivery of the property consigned to them for twenty-four hours after the report of its arrival, the master of the vessel was entitled to store the freight subject to charges at the nearest port, would not be a reasonable custom at Port Colborne, where there was no facility for the discharge of the cargo except at one place, and there was some proof of the custom of the port for vessels to wait their turn at that place. Though the charter-party is ordinarily the controlling evidence of the contract as to everything clearly expressed therein, and bills of lading are often regarded as little more than evidence of the shipping and receipt of the cargo, yet, where the charter-party is not proved, or where it makes no provision in regard to the consignee or mode of delivery, the bills of lading become the proper and controlling evidence, in whole or in part, of the contract. Freight is usually payable when it has been fully earned by the safe carriage and right delivery of the cargo. HALL, J.-The libel in this case was filed to compel the payment of freight, on the cargo proceeded against, from Chicago to Port Colborne, and thence to Buffalo; demurrage for two days' detention at Port Colborne; and sundry expenses incurred by the unlading, storage, and insurance of the cargo at Buffalo. The bills of lading for the cargo were in the following form: the following articles, marked and numbered as in the margin, to be delivered in like good order and condition (the dangers of navigation only excepted) unto consignees as per margin, or to his or their assigns. Freight and charges to be paid as noted below, upon the actual and complete delivery of the said goods and freight to said consignees or their assigns. "In witness whereof the master of said vessel hath affirmed unto three bills of lading all of this tenor and date, one of which being accomplished the others to stand void. The bill of lading copied above was signed by E. G. Wolcott as agent of the shippers; and three other copies were signed by the master of the Convoy: The copy of the bill of lading annexed to the answer of the claimant is in substance the same, except that the name of "Alex. McKirdy," as master, is inserted in the body of the bill, that the name of "Alex. McKirdy" is signed at the bottom, and that under that signature is the following entry: Freight from Port Colborne to Oswego four and one-half (41) cents per bushel--to be shipped from Dalhousie by steam or sail vessel classing not below standard. Dangers of navigation excepted, For Welland Railway, WALKER & BROTHER, Agts." There is no proof in regard to this entry, and it does not appear that at the time of the execution of the bills of lading, the agent or master of the Convoy knew that any special contract had been made for the transportation of the cargo of the Convoy over the Welland Railway. It must therefore be assumed that their knowledge of the final destination of the cargo, and of the mode of its transportation from Port Colborne, via the Welland Railway, to Oswego, was wholly derived from the entries in the bill of lading, so signed by the agent of the shipper, and similar bills of lading signed by the master of the Convoy. The Convoy, with her cargo on board, reached the western terminus of the Welland Railway, at Port Colborne, on Lake Erie, on the 28th of August, 1860, between 9 and 10 o'clock in the evening. The next morning her arrival was reported to the agents of the Welland Railway Company, and, during that day and the next, VOL. XI.-19 the master of the schooner and the agent of her owner several times desired the agents of the Company to discharge the vessel, or to fix some specific time for her discharge. The agents of the Railway Company declined to do either; stating that they could discharge vessels only in the order of their arrival, and that the Convoy should be discharged in her turn, as soon as the other vessels which had arrived before her and were then awaiting their turn could be discharged. There was an unusual and extraordinary press of business at the Welland Railway Company's elevator at Port Colborne, and though vessels were discharged as rapidly as the capacity of the elevator and railway would permit, there was at that time an accumulation of vessels and consequent delay in their discharge. There was no other elevator or place of storage at Port Colborne, and if the Convoy was to be discharged there she would necessarily be discharged at the elevator of the Railway Company, or by hand labor. If discharged by hand labor, there was no means of storing the cargo there; and it would have been exposed to injury and loss. When the Convoy arrived there were twelve or thirteen vessels waiting to be discharged, and as two vessels were usually discharged in each twenty-four hours, the Convoy, if she had been discharged in turn, would have been discharged on the sixth or seventh day after her arrival-or about the 4th day of September. There was no agent of the consignees at Port Colborne, but there was telegraphic communication between Port Colborne and Oswego, where the consignees resided. No instructions were asked of the consignees and no information was sent them by the master of the Convoy, who, with his vessel, remained at Port Colborne until the afternoon of the 30th of August. He then sailed for Buffalo, which was the nearest port at which storage for the wheat.could be obtained. The Convoy reached Buffalo the same evening, and the next day discharged her cargo at an elevator, her master taking a receipt for the wheat to be delivered to his order. The day after the cargo was discharged the libellant, as owner of the Convoy, sent a telegram from Buffalo to the consignees at Oswego, in the following terms: |