Gossler et al. v. Goodrich.

terms impose additional duties, but duties in lieu of duties, and contains no exceptions, and establishes a duty of two and a half and three cents on all brown and white sugars imported on and after December 24, 1861.

But even if the law were as the plaintiffs contend, the facts do not bring this case within the language of the said section five.

The goods were not bound to the United States, and this fact alone is decisive. The sugars were consigned to J. Berenberg, Gossler, & Co., of Hamburg, and not to persons within the United States.

Until after the order was given that the Southern Cross should proceed to Boston, these sugars were as truly bound to London, Hamburg, or Bremen, as to Boston or New York.

These facts in this case are distinguished from Grant v. Peaslee, 2 Curt. 250; Millar v. Millar, 2 Curt. 256; Warren v. Peaslee, 2 Curt. 231; Grinnell v. Lawrence, 1 Blatch. 346; Griswold v. Maxwell, 3 Blatch. 145. See Sampson et al. v. Peaslee, 20 How. 571; Irvine et al. v. Redfield, 23 How. 170.

The construction that a vessel must be actually bound, in the sense of actually proceeding to the United States, gives force to all the words of the clause of section five, and seems analogous to the construction put upon other clauses of the statutes relating to customs.

CLIFFORD, J. Raw sugar, called muscovado, and brown sugar, not advanced beyond the raw state, under the act of the 2d of March, 1861, was subject to a duty of three fourths of one cent per pound. Refined sugars were subject to two cents per pound, whether loaf, lump, crushed, or pulverized. 12 Stat. at Large, 479. All goods, wares, and merchandise, under the act of the 5th of August, 1861, entitled " An act to provide increased revenue from imports," which were actually on shipboard and bound to the United States, were subject to pay only such duties as were provided by law before, and at the time of the passage of that act. 12 Stat. at Large, 293. Rates of duty on sugars were increased by the act of the 24th of December, 1861; and the parties agree that the rates of duty assessed and collected in this case, are those expressed in that act, which went into effect at the

Gossler et al, v. Goodrich.

date of its passage. The language of the provision is, that from and after the date of the passage of this act, in lieu of the duties heretofore imposed by law, on articles hereinafter mentioned, there shall be levied, collected, and paid on the goods, wares, and merchandise herein enumerated and provided for, imported from foreign countries, the following duties and rates of duty, that is to say, tea, coffee, and sugars, as therein classified and provided.

Observe that these "duties and rates of duty" are imposed in lieu of the duties heretofore imposed by law on the articles therein mentioned. Direct repeal would be no stronger, as it is expressly enacted that the increased duties and rates of duty shall be imposed in lieu of the duties heretofore imposed by law. Terms more explicit and comprehensive could not be employed, and the provision neither contains any exception, nor admits of any, without the necessity of resorting to positive legislation.

Goods actually on shipboard, and bound to the United States at the date of the prior act, were specially exempted from its operation, and were only required to pay such duties as were previously provided by law; but the act of the 24th of December, 1861, under which the duties in this case were assessed and collected, contains no such exception, and there is nothing in any other act of Congress which affords any support to the theory of the plaintiffs.

Reference is made to the joint resolution of the 11th of January, 1862, as affording support to that theory, but it is clear that it cannot be construed to have any such effect, as it is expressly limited to goods warehoused at the date of the passage of the act, entitled an act to increase the duties on tea, coffee, and sugar. Viewed as a provision for one class of goods only, and that a different one from the importation in this case, the argument from it is rather against the theory of the plaintiffs than in their favor. Expressio unius est exclusio alterius.

Suppose it were otherwise, however, and that it can be admitted that the provision in the prior law, exempting goods actually on shipboard, and bound to the United States at the date of the new enactment, was in full force, still we are of the opinion that the plaintiffs ought not to prevail, because it is clear, we think,

Gossler et al. v. Goodrich.

that the goods constituting the importation in this case were not, on the 5th of August, 1861, bound to the United States.

Plaintiffs concede that they cannot prevail, unless the agreed statement shows that the goods were actually on shipboard at that date, and bound to the United States.

Having come to the conclusion that the goods were not at that date bound to the United States, it is not necessary to decide whether, on the facts agreed, they were, or were not, actually on shipboard, and we express no opinion on that point.

Undoubtedly the case shows that the person who purchased the goods expressed an intention to make the purchase, and ship the goods to the United States; but the record contains the most plenary evidence that he changed his mind, and that the goods were actually purchased, shipped, and forwarded to Falmouth, without any definite intention to import them here, and with the right expressly reserved to discharge at London, Hamburg, or Bremen. They were invoiced in the name of a foreign house, and consigned to Berenberg, Gossler, & Co., of Hamburg. Bills of lading were signed by the master, wholly inconsistent with the theory of the plaintiffs, and the vessel actually cleared for Falmouth, and for orders. The shippers were bound by the charter-party to make their election before the ship sailed, and they made it as required, and gave notice in writing.

Other questions were discussed at the bar, but in the view of the case we have taken it is not necessary to examine them, as the points actually decided dispose of the controversy.

The duties were correctly computed and properly collected, and according to the agreement of the parties, there must be judgment for the defendant, with costs.

Nichols v. Inhabitants of Brunswick.

MAINE DISTRICT.

SEPTEMBER TERM, 1867.

ARTHUR B. NICHOLS v. THE INHABITANTS OF BRUNSWICK.

The surface of a travelled street or highway, about two rods wide, in a village, was in all respects in good condition, and had been repaired from time to time by the town authorities. At a certain point by the side of the road was a cellar, about four feet deep, the line of the wall of which extended within the line of the street. No building had existed over the cellar for a period of about eight years, nor had the town, for about that period of time, erected or maintained any guard or railing against the excavation. Held, that this was not, under the statute of Maine, such a condition of repair as to be safe and convenient for travellers with teams, horses, and carriages.

An accident occurred at this point under the following circumstances: A person driving one horse in a chaise stopped near the cellar, and turned the animal to one side, in order to admit some one into the carriage. The driver then attempted to turn the horse sufficiently to bring him into the road, but the horse came back too far, and began to back; he then slapped the animal with the reins to start him forward, and the horse stopped, but the rear wheels were then passing over the cellar-wall, and the plaintiff, in attempting to jump out was caught by the fender, and together with horse and vehicle fell into the cellar. Held, that these facts were not sufficient to establish the defence of want of the exercise of ordinary care on the part of the person injured. Under these circumstances, plaintiff was entitled to recover damages against the town for the injuries received in consequence of a defective highway. As to the amount, the plaintiff is to recover a just compensation for his injuries, which are to be estimated by an examination of all the facts of the accident, and of the plaintiff's condition in consequence thereof.

Mere opinions of physicians that ill-health, subsequent to the injury, was occasioned by it, must be received with caution, and weighed in view of all the circumstances surroun ling the case.

TRESPASS on the case, to recover damages on account of an injury received as alleged, through a defect in a highway, which the corporation defendants were bound by law to keep in repair.

The injury was received on Pearl Street, nearly opposite the dwelling-house of one Edward White, who lived on the northerly side of the street.

VOL. III.

Nichols v. Inhabitants of Brunswick.

The alleged defect consisted of a cellar nearly opposite White's dwelling-house.

There was no fence or railing against the cellar.

White had lived in his house nearly thirty years, and when he first took up his abode at that place there was a currier's shop over the cellar, but the shop was burned some ten or twelve years before the accident.

Before the shop was burned the highway or street was fenced on both sides.

White's and the adjoining lot were fenced when he went there, and there was a continuous line of fence for a considerable distance on that side.

The proofs showed that the front of the shop on the other side of the street, was on the line of the street, and that there was a fence on each side of the street on the same line.

It was conceded that the shop was not rebuilt; and the evidence showed that the back of the cellar-wall, on the line of the street, extended within the line of the street on that side; that the top of the wall was nearly or quite level with the street, and that it was without fence or railing.

Repairs had been made on the street, and the travelled way was slightly turnpiked, causing a depression on each side of the travelled part, of seven inches at the greatest depth, and having a space of three feet in width on the outer sides of the gutters, for sidewalks.

Except the absence of a fence or railing against the cellar, the strect was in good repair, and was safe and convenient as a street of that width.

The cellar was four feet deep, and there were large rocks in it, besides those in the walls.

When the shop was burned, or shortly after, a fence was erected on the line of the street, against the excavation, but it was soon blown down, and had never been rebuilt at the time of the accident.

The following is a summary of the plaintiff's testimony:

Late in the afternoon of July 17, 1861, he went to a stable in Federal Street, into which Pearl Street runs, and hired a horse