them of the benefit of the lien upon the cargo. Nor do the terms of the charter party, or the circumstances of the shipment, show that the lien had been waived or extinguished. According to the charter party, the owners had let only the carrying capacity of the ship, and not the ship itself. They retained the possession, command, and navigation of the ship; and the contract made between them and the shippers and charterers to carry the wheat on freight for the voyage for which the ship was chartered is considered in law as a contract of affreightment. (Marcardier vs. Chesapeake Insurance Company, 8 Cr. 39.)

"In short, it appears to me," says Mr. Justice Story, "that if the absolute owner does retain the possession, command, and control of the navigation of the ship during the voyage, and the master is deemed his agent, acting under his instructions for the voyage, though authorized and required to fulfill the terms of the charter party, the absolute owner must, under such circumstances, be still deemed owner for the voyage, and be liable as such to all persons who do not contract personally and exclusively with the charterer by a sub-contract with the latter, knowing his rights and character under the charter party." (Certain Logs, 2 Sumn. 596.) Such is the settled doctrine of American law upon the subject. (1 Johns. R. 229; 8 Wheat. 632; 3 Kent's Comm. 137, 138.) Under the circumstances stated, the freighter is not clothed with the character or legal responsibility of ownership; nor was the ownership in the case in hand divested by the contract of affreightment made between the charterers and the defendant; consequently the wheat in the possession of the defendant was subject to the lien for the freight and proper charges which were due upon it.

This right of lien was inseparably associated with the possession of the wheat; so that, when the defendant rightfully obtained possession of it for the purpose of carriage, from those who had the authority to deal with it, he was entitled to retain possession until his duty in relation to it had been discharged, or, if from any cause the carriage was dispensed with, until his lien upon it had been extinguished by payment of the freight and charges or its equivalent.

And although the insolvency of Morgan's Sons, before the ship was laden and had "broken ground," but after the wheat had been placed on board, may have ended the transaction between them and the plaintiff as to the shipment and sale of the wheat, and dispensed with its carriage, yet the plaintiff was not entitled to the possession until he extinguished, or offered to extinguish, the lien which had attached

to it. The defendant was not bound to reland it and deliver it to the plaintiff at the port of outfit without tender or payment of the freight, or such other charges as were liens upon it. (Story on Bailment, Sec. 585; Campbell vs. Connor, 70 N. Y. 424; Hutchinson on Carriers, Sec. 476, note; Abbott on Shipping, 595.)

Judgment reversed, and cause remanded to the Superior Court of Sacramento County for a new trial. We concur: Ross, J., McKinstry, J.

DEPARTMENT No. 1.

[Filed August 17, 1880.]
No. 10,520.

THE PEOPLE, RESPONDENT,

VS.

JOHN HURLEY, APPELLANT

CRIMINAL LAW-INSTRUCTIONS. Where an instruction is confused and uncertain, or fails distinctly to lay down the law, while at the same time it contains hypothetical suggestions of the defendant's guilt, it is injurious to the rights of the party on trial.

SUPPRESSION OF TESTIMONY-PRESUMPTION. Where one willfully suppresses testimony, the presumption is that such testimony, if produced, would be adverse to him. But in the absence of a purpose to suppress the evidence, the presumption does not arise.

Appeal from the Superior Court of Humboldt County.
A. L. Hart, Attorney-General, for respondent.
S. M. Buck, for appellant.

By the Court:

The indictment charges defendant with the crime of grand larceny, alleged to have been committed in the County of Humboldt on the 25th of October, 1879. The transcript shows an entire absence of evidence to establish that the alleged offense was committed in the County of Humboldt.

The Court below, among other things, charged the jury as follows: "If you believe the property was stolen, as charged in the indictment, and that defendant was found in the guilty possession of the hides of said steers, the fruits of his own larceny of them, shortly after they were stolen, the failure of defendant to account for such possession satisfactorily to your minds, or to show that such possession was honestly obtained, is one circumstance tending to show his guilt; and

Hurley must explain satisfactorily his possession of them, in order to remove the effect of the possession as a circumstance to be considered in connection with other suspicious facts." This in effect is an instruction that if the jury are convinced of the guilt of the defendant, then the failure of defendant to account for the recent possession of the stolen property leaves undisturbed the effect of such possession as a circumstance to be considered as tending to establish his guilt. The Court may have intended to instruct the jury that if the defendant was in possession of property stolen shortly after it had been stolen, this was a circumstance tending to show his guilt, which it was for the defendant to explain away. But if, as the jury were instructed, they were to consider the effect of such recent possession unexplained, only after they had already determined the guilt of the defendant, and when it was unnecessary to consider as the foundation for their verdict either the recent possession, if it existed, or the defendant's explanation of it, the instruction was meaningless in itself, and calculated to mislead the jury by suggestions of "guilty possession," and that the property was a portion of the "fruits" of defendant's larceny. Merely giving an instruction which of itself cannot convey a distinct idea of any legal proposition may not always be a fatal error; but when an instruction is confused and uncertain, or fails distinctly to lay down the law, while at the same time it contains hypothetical suggestions of the defendant's guilt, it is manifest that its effect must be injurious to the rights of the party on trial. The injurious effect of the instruction upon the rights of defendant could not but have been added to by the use of the language in the last clause, to the effect that the recent possession was to be considered in connection. with "other suspicious circumstances."

The Court also instructed the jury: "If you believe that Hurley (defendant) willfully failed to produce the hides he claims came off the animals butchered, by willfully suppressing, destroying, or sending them out of the county, so that they could not be produced upon this trial, the presumption of law is that their production would be adverse to him." It is true that where one willfully suppresses testimony, the presumption is that such testimony, if produced, would be adverse to him. But the Court here also told the jury, in effect, that if the defendant willfully failed to produce certain hides, by willfully sending them out of the county so that they could not be produced upon the trial, this circumstance also raised a presumption of law that the production of the hides would be injurious to him. In the absence of a pur

pose to suppress the evidence, the circumstance last alluded to would not raise any such presumption.

Judgment and order reversed, and cause remanded for a new trial.

DEPARTMENT No. 2.

[Filed August 18, 1880.]
No. 6678.

R. FITZ, APPELLANT, VS. E. BYNUM, RESPONDENT.

MINING STOCKS-MARKET VALUE. The price put upon stocks by the trustees is arbitrary, and does not constitute the market value thereof. Nor do transactions made to give an apparent market value give a market value.

Appeal from the District Court of the Sixth Judicial District, Sacramento County.

J. C. Ball and J. W. Armstrong, for appellant.
S. G. Harper, for respondent.

MYRICK, J., delivered the opinion of the Court:

The jury rendered a verdict for defendant. Plaintiff moved for a new trial, which was denied, and plaintiff appealed.

Whether the stock, the sale of which was the consideration for the notes in suit, was of value was a matter properly submitted to the jury. As to this issue, the evidence was conflicting; therefore the verdict of the jury will not be disturbed. The Court clearly instructed the jury that if the stock had any value, the defendant must have offered to return it, or the plaintiff would be entitled to a verdict. The verdict, therefore, was necessarily based upon the belief on their part, from the evidence, that the stock had no value. The question of market value of the stock does not arise in this case. It does not appear that the stock had market value as such. The sales made appear to be only such as the operators could induce their neighbors and acquaintances to take, at prices ranging from fifty cents to a dollar a share, as purchasers could be found. As the witness Strong said: "The stock that I sold (10,000 shares), I sold for about six bits up to a dollar-ninety cents the most of it, and some at four bits -to elders and preachers. That I gave out of my own pocket to them. I told them so at the time." Such transactions do

not appear to us to give market value to the property sold, but rather transactions made in order to give an apparent market value. The price of one dollar per share placed on the stock by the trustees was altogether arbitrary.

It was not error in the Court to sustain the objection to the question put to the witness McCleery as to what the ore might have yielded under some other possible circumstances. The question in controversy was whether the stock had value as the mine then was.

Judgment and order affirmed.

We concur: Sharpstein, J., Thornton, J.

NEW TRIAL. Motion for new trial is addressed to the sound legal discretion of the Court, and order will not be reversed on appeal unless there has been a manifest abuse of discretion.

PROMISSORY NOTES. Whether notice of dishonor may be given verbally, quere.

Appeal from the District Court of the Sixth Judicial Disrict, Sacramento County.

L. S. Taylor, for respondent.

A. C. Freeman, for appellants.

THORNTON, J., delivered the opinion of the Court:

Action against Schaden and Fuller as endorsers of a promissory note. The note was made by J. A. Gardiner in their favor in February, 1876, who afterwards endorsed and delivered it to the plaintiff. The complaint sets forth that the note was, on the day it became due, presented to the maker and payment demanded; that the maker refused to pay it; of all of which the defendants were duly notified.

The defendant Fuller made no defense. Schaden answered, denying that the note was ever presented to the maker, and payment demanded or refused; and further denied that he ever had any knowledge or notice of such demand or refusal.