In the matter of John Leary, Petitioner for habeas corpus. as the party cannot be said to have fled from the State making the demand. These cases are those in which a State has assumed jurisdiction to make an offence indictable, although the party charged was not then, and perhaps never was, within the State, as, for instance, for a murder where the fatal blow was struck outside the State but the injured party died within the State. Perhaps the only and the proper remedy of a party arrested under such a warrant in such a case is to apply to the Governor for a revocation of the warrant. All that is necessary to hold in this case as to this point of the party having fled from justice, is that where it appears by the recitals in the warrant that the Governor had before him a duly authenticated copy of an indictment against the party for an offence, the commission of which necessarily implies the presence of the party at the time and place of the alleged offence, and, as was the case here, no evidence is offered tending to show that the party is not a fugitive from justice, he is properly held under the warrant. It is not intended to be intimated that evidence that the party never was within the jurisdiction of the demanding State, would, if offered, be admissible on habeas corpus after the arrest on the warrant. One obvious objection that might be urged to the admission of such evidence is, that it would be apparently trying the question of an alibi, one of the possible defences of the party on his trial for the crime alleged, which, as involved in the question of his guilt or innocence, it may have been the design of the Constitution and the Act of Congress to remit for trial exclusively to the State in which the party stands charged with having committed the offence. And another objection might be urged, that Congress has apparently submitted the question whether the party charged has fled from justice to the determination of the Governor alone. Vandover v. Wilmot. The question of the identity of the party arrested with the party described as the alleged fugitive in the mandate of the Governor is, of course, always open to inquiry on habeas corpus, since that is simply the question whether the mandate has been executed against the party named therein; but on this question the fact has been determined against the petitioner on the evidence. The writ must be dismissed and the prisoner remanded. For the petitioner, Peter Mitchell, A. S. Sullivan of counsel. For the sheriff, H. W. Bookstaver, W. Britton of counsel. JANUARY, 1879. JOHN N. VANDOVER vs. JOHN WILMOT. BILL OF LADING.-DEMURRAGE.-AGENT. V., the master and owner of a canal-boat at Oswego, employed F. & Co. to procure for him a cargo, and F. & Co. arranged with H. R. & Co., the proprietors of an elevator, to give the boat a load of grain for New York. F. & Co. gave V. an order on H. R. & Co. for the grain and he went to the elevator and loaded his boat. F. & Co. then made out a bill of lading in two parts, which were signed by V. and by F. & Co., each keeping one part. It consigned the cargo to W. in New York, and authorized him to detain the boat at the rate of $3.00 a day for thirty days, and thereafter at the rate of $200 a day till the 1st of April, and from that time demurrage was to be allowed at the rate of 2 per cent per day on the freight. After V. had left with his boat, F. & Co. received from H. R. & Co. blank forms Vandover v. Wilmot. of bills of lading, which differed from the others as to the rate of demurrage after the 1st of April. F. & Co. filled up and signed these bills, naming H. R. & Co. as shippers, and sent them to H. R. & Co. and they forwarded one of them to W., to whom they consigned the grain. W. never received the bill of lading which V. had signed and delivered to F. & Co., because they had sent it to S., to whom they had made the freight and demurrage payable, as security for advances made by them to V. The boat not having been discharged till April 16th, V. filed a libel against W. to recover demurrage from April 1st, according to his bill of lading. The difference between the two bills of lading was accidental: Held, That the first bill of lading must be held to be the contract between the Parties and that W. should have been put on inquiry as to the contract, from the fact that his bill of lading did not purport to be signed by the master or by any one authorized to bind the boat; That V. was entitled to recover the demurrage claimed. They gave the libellant an CHOATE, J. This is a libel in personam by the master and owner of a canal-boat, against the consignee of the cargo, for demurrage, pursuant to the terms of the bill of lading. The libellant being at Oswego with his boat, employed there the firm of B. C. Frost & Co. to procure for him a cargo of grain, paying them a commission therefore. Frost & Co. made arrangements with Hagamon, Rundell & Co., the proprietors of an elevator in Oswego, to give the libellant's boat a load of grain for New York. order on Hagamon, Rundell & went there and loaded his boat. and presented to the libellant a bill of lading in two parts, which were signed by the libellant and by Frost & Co. The libellant retained one and left the other with Frost & Co. This bill of lading named Frost & Co. as the shippers. It made the freight and demurrage payable to one Sargent, in New York, for the security of Frost & Co., who advanced money to the libellant for his expenses in reaching New York. The consignee named was the respondent, Wilmot. Frost & Co. had no interest in the cargo. Hagamon, Rundell & Co., who Vandover v. Wilmot. were the shippers and consignors to the respondent, were acting as agents for the owners of the grain. With this bill of lading, which is the one on which the suit is brought, the libellant proceeded on his voyage to New York. By its terms, the consignee could detain the boat at the rate of three dollars a day for thirty days and thereafter at the rate of two dollars a day till the 1st of April, 1873, and from that time demurrage was to be allowed at the rate of 24 per cent per day on the freight. Soon after the libellant left with his boat, Frost & Co. received from Hagaman, Rundell & Co. blank forms of bills of lading, differing from that signed by the libellant in respect to the demurrage, giving the privilege of detaining the boat without limit of time, at the rate of two dollars a day after the first thirty days. Frost & Co. filled up and signed this bill of lading in two parts, naming Hagamon, Rundell & Co. as the shippers, and delivered them to Hagamon, Rundell & Co. One of these bills of lading Hagamon, Rundell & Co. forwarded with a letter to the respondent, to whom they consigned the grain. The respondent never received the first bill of lading, that signed by the libellant. The one retained by Frost & Co. had been forwarded by them to Sargent. The boat was detained till the 16th of April, the respondent having no knowledge that the libellant had signed or given a bill of lading differing from that sent to him by Hagamon, Rundell & Co. until about the 1st of April, when he had paid most of the freight and the demurrage up to that time. The suit is to recover the difference in demurrage between the two bills, being about eight dollars a day, from April 1st to April 16th. It appeared by the testimoney of Mr. Frost, called as a witness by respondent, that the difference in the two bills was accidental; that there was no express agreement prior to the signing of the first bill of lading between them and the libellant as to demurrage, nor Vandover v. Wilmot. any conversation or understanding between them and Hagamon, Rundell & Co. on the subject; that when the second bill of lading was signed by Frost & Co., they did not observe the difference between the two; that the first bill of lading was in the form usually employed by Hagamon, Rundell & Co. in making their shipments; that the form of the second bill of lading had been sometimes used, but that this clause as to demurrage, so far as it differed from the first bill of lading, had been inadvertently introduced, so far as Hagamon, Rundell & Co. were concerned. It appeared by the testimony of the respondent that he had had prior consignments from Hagamon, Rundell & Co., and received from them bills of lading in the form of the second bill of lading. It is claimed by the respondent that the first bill of lading, that sued on, is not binding on him; that Frost & Co. were not the shippers; that they were acting in this transaction merely as agents of the libellant; that the only bill of lading, if any, which had any binding force, is the second bill of lading, under which the respondent received the consignment; that the suit cannot be maintained for a quantum meruit, if there was no binding bill of lading, because it is based on an express contract, the first bill of lading. But I think upon the proofs, the first bill of lading entitled the libellant to recover. The libellant knew only Frost & Co. as the parties through whom he received the cargo. They were evidently entrusted by the shippers, Hagamon, Rundell & Co., to make arrangements for the shipment with the master of the boat. They stood more in the position of brokers between the boat and the shippers, than in the position of mere agents of the master. They were his agents for procuring a load, but having found a shipper, they acted for the shipper in making an agreement with the master as to the terms on which it should be transported. Frost testified |