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REPORTS

GASES DETERMINED

IN THE

DISTRICT COURT OF THE UNITED STATES

FOR THE

DISTRICT OF MAINE,

WITH SOME OPINIONS OF THE DISTRICT JUDGE

,m CASES DETERMINED IN

THE CIRCUIT COURT.

1839—1849.

BY EDWARD H. DAY EI S,

COnifSXLLOB AT LAW.

PORTLAND:
PRINTED BY THURSTON & CO.,

1849.

This volume contains a selection of cases in the District
Court, principally in Admiralty, decided by Judge Ware
since tlie publication of Ware's Reports, and also some opin-
ions pronounced by him in cases decided in the Circuit
Court

The Note upon the Admiralty Jurisdiction, on page 93,
was written out at the request of the Reporter, while the
printing was in progress.

The decisions in Bankruptcy, which formed the great
mass of the business in the District Court, for some years
after the act went into operation, have been omitted, except-
ing a few cases presenting points of more general applica-
tion.

The rubrics have been prepared under direction of the
Judge, and are generally given as made by him at the time
the cases were decided.

TABLE

OF CASES REPORTED

The Ada 407

The Amethyst 20

Bartlett, (United States vs.) 9

The Betsy & Rhoda 112

Bradbury, (United States vs.) 146

Bumham v. Webster 236

TheCalisto ^ 29

Carleton v. Davis 221

Carr v. Gale 328

TheCasco 184

Child, (Davis vs.) 71

Coflto, (Goddard vs.) 381

Crosby, (Mason vs.) 303

Ti TABLE OF CASES REPORTED.

Davis V. Child 71

Davis, (Carlelon vs.) 221

The Dawn 121

Dinsmore, (Pettingill vs.) 20S

The Eliza 316

The Emblem 61

Ferson v. Sanger ..----- 252

Fifty-one Casks of Brandy, (Hooper vs.) - - 370

Gale, (Carr vs.) 328

The Gertrude 176

Goddard v. Cofiin 381

Hooper vs. Fifty-one Casks of Brandy - - - 370

The Hull of a New Ship - 199

The Huntress - - 82

Jarvis, (United States vs.) . . . - . 274

The Leopard 193

Marwick, In re 229

•

TABLE OF CASES KEPORTED. vii

Mason v. Crosby - - 303

Mitchell, (Shaw vs.) 216

The Palo Alto 343

Pettingill v. Dinsmore 208

Potter, (Skolfield vs.) 392

Rangeley, (Shepley vs.) 242

Sanger, (Person vs.) 262

The Scioto - - - - • - - - - 359

Shaw V. Mitchell - - ^ - - . - 216

Shepley v. Rangeley -----. 242

Skolfield V. Potter 392

Smith V. Treat 266

Stinson v. Wyman 172

Slorer, Ex parte - - 294

Thorp, /» re 290

Treat, (Smith vs.) 266

United States v. Bartlett 9

V. Bradbury 146

V. Jarvis 274

V. Waterborough . . • . 164

_— - V. Webster 38

VIII TABLE OF CASES REPORTED.

The Waldo 161

Warren, In re - - -- - - - 320

Waterborough, (United States vs.) - - - . 154

Webster, (Bumham vs.) 236

Webster, (United States vs.) 38

Wyman, (Stinson vs.) 172

REPORTS OF CASES

DECIDED IH TBS

DISTRICT COURT OF THE UNITED STATES

F0« TBE

DISTRICT OF MAINE.

UNITED STATES vbesus BARTLETT.

The enrollment of a vessel by a Collector, without the oath of one of
the owners having been previously taken and subscribed in conformity
with an act of Congress of Feb. 18th, 1798, sect 2, is void, and dots
not confer on her the rights and privileges of a vessel of the United

A vessel thus enrolled is not entitled to claim the fishing boun^ tmder
the act of July 29,1813, sect 5.

If the bounty has been improvidently paid to a vessel so enrolled by the
Collector, it may be recovered back by the United States in an actiOD
for money had and received.

Money paid by an agent under a mistake of the legal obligation of his
principal may, it seems, be recovered back by the principal in an ac-
tion for money had and received.

December Term, 1S39. This was an action of assumpsit,
brought by the United States, to recover back the amount of
a fishing bounty, paid to the defendants, as owners of the
Schooner Gleaner, for the fishing season of 1834 The jury
returned a special verdicjt The verdict finds that the vessel
was employed during four months, in the fishing season of
that year, in the cod fisheries, and if, on the facts agreed

10 DISTRICT COURT,

United SUtet v. BartleU.

upon by the parties, and to be taken as part of the finding of
the jury, the Court is of the opinion, that she was a vessel
duly qualified according to law to carry on the fishing busi-
ness, then the jury find that the defendants never promised ;
but if, in the opinion of the Court, she was not duly quali-
fied as aforesaid, then the jury find that they did promise in
manner and form as the plaintiffs have declared, and assess
damages in the sum of $294.91.

The agreed facts, which are to be taken as part of the
finding of the jury,* are in substance as follows: The
schooner was enrolled at Thomaston, in the District of Wal-
doborough, on the 17th of May, 1834, and was then owned,
and continued to be owned during the whole of that year, by
Elbridge G. Wellingtoui of Boston, in the District of Mas-
sachusetts, and George Bartlett and Knott Bartlett, both of
St. George, in Maine District. The oath of ownership was
not taken and subscribed by either of the owners during
the year, but the oath touching the ownership was taken
by John Bickman, the master, and the jury further found
that enrollments in that office were occasionally made,
as a matter of convenience, on the oath of the master only.
The same day on which the enrollment was made, the Dep-
uty Collector granted a license to the vessel to be employed
in the cod fishery that season ; and the license bond was
given in the usual form by said Bickman. This license
was surrendered by Bickman, August 29th of that year, and
a new license taken out for the naackerel fishery, which was,
October 24th, surrendered by Bickman, and another license
taken out for the cod fishery. In each case the license bond
was given by Bickman, the master. The last license was
surrendered Nov. 24, 1834.

The jury further found, that no agreement was made in
writing between the skipper and the fishermen, except a
blank agreement in print, which was signed by the fisher-
men, but not filled up. But it was proved by parol, if com-
petent to be sj proved, that a verbal agreement was made

MAINE, 1889. H

United Btatet v. Bartlett.

between the skipper and the crew, by which each man was
to receive an equal share of the fish taken, in lieu of wages ;
and it was further proved, that in the fishing business it was
frequently the case, that is, half the time or more, that the
shipping paper was brought in not filled up, or was not filled
up until the time was completed ; and that no objection had
been made on that account to the payment of the bounty.
The bounty was paid to George Bartlett, January 1st, 1835.

The case was argued by Howard^ District Attorney, for
the plaintiiis, and Fessenden 4* Deblois, for the defendanHs.

Howard, for the plaintiffs, cited Laws of the United States,

1813, ch. 34, sect 6 and 8; do. 1819, ch. 212; do. 1793, ch. 62,
sect 1 and 2 ; do. 1792, ch. 45, sect 4; do. 1791, ch« 102;
United States vs. Rogers, C. C. of the U. S. at Rhode Is-
land, June Term, 1839 ; Johnson et al vs. United SicUes, 5
Mason, 442; United States vs. Hoar, 2 Mason, 314; United
Slates vs. Lymany 1 Mason, 604.

Fessenden 4* Deblois, for the defendants, cited The Eliz-
abeth, 5 Robinson, 2 ; The Sadtissima Trinidad, 7 Wheat
223; Laws of U. & 1792, ch. 45, sect 6; do. 1793, ch. 62;
The Two Friends, 1 Gall. 112; OA/ vs. The Eagle Ins.
Co., 4 Mason, 172; Heath vs. Hubbard, 4 East UO; Batch-
ford vs. Meadows, 3 Esp. 69; Abbot on Shippixig, 67; Uni-
ted States vs. Hathaway, 3 Mason,. 324 ',. United States vs.
Tappan, 2 Mason, 393; Child vs. Schoonmaker, 1 Wash.
419; Washburn vs. Blount, Gilpin, 452; Ketland vs. Leber-
ing, 2 Wash. C. C. R. 201 ; The Harvey, 2 Haggard, 79.

Ware, District Judge.

This suit is brought by the United States to recover back
the amount of a fishing bounty alleged to have been unduly
paid to the defendants on the Schooner Gleaner, for the
fishing season of 1834 The language of the act granting
the bounty is, that from and after the last of December,

1814, there shall be paid, on the last of December, annually,
to the owner of every vessel, that shall be duly qualified,

12 . DISTUCT COIHIT,

United SUtea v. Bftitletl.

agreeably to law, for carrying on the bank and other cod
fisheries, and that shall have been actually employed therein
at sea for the term of four months at least of the fishing sea-
son next preceding, for each and every ton of such vessel's
burthen, &c., a sum fixed by the law, provided that the al-
lowance to no one vessel for a single season shall exceed 272
dollars, which is enlarged by the act o{ 1819, ch. 212, to 360
dollars. Laws of the U. S. 1813, ch. 34, sect. 5, Story^s Ed.
vol 2, p. 1352.

The title of any vessel to claim the bounty, depends,
therefore, upon two facts; First, on her being duly qualified
according to law, for carrying on the fisheries ; and Second-
ly, on her actual employment in the business for four months
during the fishing season. The fact of heir actual employ-
ment is found by the jury, but whether she was duly quali-
fied or not the jury say that they are not advised, and they
find the facts specially touching this point, and refer the
question of law arising from them to the judgment of the
Court The facts being found, the decision of the question
depends on the proper construction of the License and Reg«
istry acts.

The act of February 18, 1793, sect. 1, commonly called
the license act, provides that vessels enrolled and licensed in
pursuance of that act, " and no others^ shall be deemed ships
or vessels of the United States entitled to the privileges of
ships and vessels employed in the coasting trade and fisher-*
ies." The second section provides, "that in order to the en-
rollment of any ship or vessel, she shall possess the same
qualifications, and the same requisites, in all respects, shall
be complied witli, as are made necessary for registering ships
or vessels by the act of December 31, 1792, and the same
duii^s and authorities are given and imposed on the officers
in relation to such enrollments, and the same proceedings shall
be had in similar cases, touching such enrollments ; and the
ships or vessels so enrolled, with the master or owners, shall

MAINE, 18». 13

Vaited 8Utet 9. fiarUett.

be subject to the same requisites as are provided for vessels
registered by virtue of that act" To determine then wheth-
er a vessel has been duly enrolled, ;o as to secure to her the
privileges of an American vessel, it is necessary to examine
the registry act The provisions of that act, the non-com-
pliance with which is supposed to vitiate the papers of this
vessel, are found in the fourth section. That requires *'that
in order to the registry of any ship or vessel, an oath or
affirmation shall be taken and subscribed by the owner, or
one of the owners, before the officer authorized to make the
registry, declaring, according to his best knowledge and be-
lief, the name of the ship or vessel, her burthen, the time
and place when and where she was built, &c., and enumer-
ating all the particulars required by the second section of the
act to entitle a vessel to be registered, and then provides that
in case any of the matters of fact in the oath, which shall
be within the knowledge of the person swearing, shall not
be true, that there shall be a forfeiture of the ship, her
tackle, &c., or of her value, to be recovered of the person by
whom the oath is taken." And there is also a provision
that if the master is within the district, he shall make oath
to his own citizenship.

In this case no oath was taken by either of the owners,
but the vessel was enrolled on that of the master alone, in
swearing to the same facts, which should be verified by the
oath of an owner. It is very certain that the words of the
law give no authority to the officer to grant a certificate of
enrollment, under such circumstances. The act expressly
says, that in order to the registry of a ship, and the same is
required for an enrollment, an oath shall be taken by the
owner or one of the owners. The oath of the master is not
required, except as to his own citizenship ; and that may be
dispensed with, provided he is not within the district, and
that of the owner substituted in its stead. But no authority
is given to the officer to substitute the oath of the master for
that of the owner. It is clear, then, unless the construction

14 DISTRICT COURT,

United SUtes v. Bartlett.

of the act can be maintained, which will presently be con-
sidered, that the enrollment of the vessel was an improvi-
dent and unautiiorized aQt. But it is also clear that the en-
rollment was not procured by any fraud or deceit, for the
certificate on its face shows who the owners were.

Does an enrollment thus made by the proper officer, with-
out any imputation of fraud or deceit on the part of the
owners, but without a compliance with the requisites pre-
scribed by the statute, clothe the vessel with the rights and
privileges of a vessel of the United States 7 It is contended
that it does; — that the act of the officer, the duly authorized
agent of the plaintiffs, in a case free from fraud or collusion,
is binding on the United States;— and that papers thus ob-
tained are conclusive evidence that the vessel is entitled to
the privileges which the papers purport to grant.

The effect of this decision, it is plain, will be to render the
provisions of the act, so far as the consideration of them is
involved in the present controversy, merely directory. Such
a construction appears to me to be wholly inadmissible.
The first section of the act provides that vessels which shall
be enrolled in pursuance of this act, and no others^ shall be
deemed ships or vessels of the United States, and entitled to
the privileges of vessels employed in the coasting trade and
fisheries. A vessel enrolled in pursuance of the act, is one
enrolled in conformity with its directions and requirements.
These are enumerated in the first eight sections of the regis-
try act, and the ninth provides, that ''the several matters
hereintofore required having been complied with," the col-
lector shall grant the certificate. It seems, at the first view,
that the collector is not authorized to grant the certificate
without a compliance with all the requirements of the act.
Still, though the first section of the act declares that no oth-
er vessels than those enrolled in pursuance of the act, shall
be entitled to the privileges of enrolled vessels, and the ninth
section apparently exacts a compliance with all the re-

MAINE, 1890. 15

United SUtet v, Burtlett.

quirements, preyiously to the issuing of the certificate, it
may perhaps appear, on a critical examination of the act,
that ao omission to comply with some of its directions, pre-
vious to the enrollment, will not absolutely vitiate aiid ren-
der void the ship's papers. This is, however, a question
which it is not necessary to decide in the present case. And
should it be conceded, that some of the clauses in the first
eight sections are essentially directory to the officers, a strict
compliance with which is not absolutely indispensable to the
validity of the ship's papers, it appears to me that the pro-
visions of the fourth section cannot be admitted to be of that
character. That section requires, in order to the registry of
a ship, that an oath shall be taken and subscribed by the
owner or one of the owners, verifying the matters therein stat-
ed. The matters of fact included in the oath, besides sev-
eral others, are all those enumerated in the second section, as
being essential to entitle a vessel to be registered, and it is
provided that if any of the matters of fact, within the
knowledge of the person swearing, are not true, there shall
be a forfeiture of the vessel, in respect to which the oath is
taken, or of her value, to be recovered of the person by
whom the oath or affirmation is made. Besides, some of
the facts, required to be sworn to, are of a nature not to be
known by any but the owners; as whether any foreigner
has a secret interest in the vessel, by way of trust or confi-
dence. IT the master's oath may be substituted for that of
the owners, he can only swear according to his knowledge and
belief. A secret trust may exist in a foreigner, without his
knowing it; and the only way, in which that can be effectu-
ally guarded against, is by requiring the oath of the owners.
It would be an entirely unjustifiable construction of this sec-
lion, to hold it to be merely directory to the officer, as to the
manner in which he is to execute his duty ; and that it may
be neglected by the owner, without any peril to his interest,
provided the officer chooses from any cause to grant a certi-
ficate without requiring the oath^ or to accept that of the

16 DISTRICT COURT,

Uaited StsCet 9. BartleU.

master instead of the owners. But if any doubt could be
raised as to the proper construction of this section of the aet
standing by itself, it would be removed by the 5th section.
That requires, when papers are granted on the oath of one of
the owners, that the other owners shall, within three months
aAer, transmit to the collector, who granted the papers, a sim-
ilar oath, or the papers shall be forfeit and void. If an oath
at an owner can be dispensed with in the first instance, and
valid papers granted without it, there would seem to be little
reason in rendering them void, on a neglect by the other part
owners to transmit a similar oath.

But it is said, that while the license act requires the same
qualifications of the vessel, and makes the same requisites
necessary for the enrollment, as for the registry, of a vessel,
it no where denounces the same penalties and forfeitures.
This is true; but if the construction, now given to the act,
he correct, this does not reach the difficulty of the defence of
this action. This is not a suit for a penalty, but to recover
back of the owner a sum of money alleged to have been un-
doly paid. The question is not whether the vessel has for-
feited the privileges of an enrolled vessel, but whether, un-
der this enrollment, she can have acquired them.

Another ground of argument urged in the defence is, that
the enrollment having been regularly made, by the proper of-
ficer, without any imputation of fraud on the psgrt of the
owners, the certificate is conclusive proof that the vessel is
entitled to the privileges which it purports to grant, and that
the act of the officer, being the authorized agent of the
plaintifiis, is conclusive upon them.

It is true that in some cases a ship's papers are conclusive,
and a party is not at liberty to contradict them. They are
conclusive, in questions of prize, against the claimants, to
show the national character of the ship. 5 Rob. 2; 7 Whea-
tan, 283. They are conclusive also against the insured, in a
suit on the policy, to prove the ownership to be as the papers

MAINE, 189». 17

United SUtes v. Bsrtlett.

represent it 4 Mason, 172, 390. A party will not be per-
mitted to deny the verity of documentary evidence, which
he has himself procured, and the benefit and protection of
which he has enjoyed. But in neither of these cases would
the opposite party be concluded by the ship's papers. They
would be allowed to disprove their truth by every species of
legal evidence. If the grant of this certificate had been the
personal act of the plaintiffs, certainly they would not easi-
ly be allowed to deny its validity, issued as it was with a
full knowledge of the facts. But it is no otherwise their act
than as it was done through the instrumentality of their
agent. The law of agency is well settled. The act of the
agent is not considered as the act of the principal, except
when it is within the limits of his authority. If he trans-
cends his authority or violates his instructions, the principal
may repudiate the act as void, unless from the course of
dealing, those who treat with the agent are justified in in-
ferring that he is clothed with larger powers or entrusted
with a wider discretion. But in this case the authority of
the agent and his instructions are found in the public laws,
which the defendants, like all other persons, are bound to
know. There is therefore no pretence for saying, that the
act of the agent is binding on the principal, unless it is fair-
ly within the limits of his authority. So that we are
brought back to the question, whether the officer was au-
thorized to make the enrollment without the oath of one of
the owners, or in other words, whether the provisions of the
4th section of the registry act are merely directory to the of-
ficer, to regulate his discretion in the execution of his trust,
or whether a compliance with them is an indispensable pre-
requisite to the validity of the enrollment.

Another point of the defence, strongly insisted upon at the
hearing, turns rather upon the form of the action. This is
an action for money had and received, which, it is argued,
is a strictly equitable action, and lies only when a party has
received money, which, ex cequo ei bono, he ought to re-^

IS DISTRICT COURT,

United SUtes v. fiartlett.

fund ; that when a party is, by the general principles of
equity and good conscience, entitled to retain the money, it
cannot be recovered in this form of action, though the party
might not have been able, upon the strict principles of
law, to prevail in a direct suit for it. Now it is said that
this money was paid upon a contract, or quasi contract, be-
tween the parties; — that the plaintiffs, by the law of 1813,
promised to the owners of any duly qualified fishing vessel,
that should be employed in the fisheries during four months
of the fishing season, a certain sum of money; that the boun.
ty constitutes one of the substantial inducements to the fish-
ermen to engage in the business; — that the object of the law
is, to encourage the fisheries, as a nursery of seamen, for the
general interest of the country, and to promote the navigat-
ing interest, by furnishing employment for American ship-
ping ; — that this vessel, being American built and owned,
and having been actually employed the time required, by
American seamen, the public policy and objects of the law
are satisfied. The terms of the contract having been sub-
stantially complied with on the part of the defendants, equi-
ty, it is said, will relieve them from an inadvertent omission
to comply with conditions, that are. merely formal and do not
enter into the essence of the consideration.

The first difiiculty, which this argument has to encounter,
is that it assumes as a fact, that this vessel possessed all the
intrinsic qualities which entitled her to be enrolled as an
American vessel. This may be true, but it is a fact not found
by the jury, and cannot be presumed by the Court The
question is, what judgment shall be rendered on this verdict;
and upon this question the Court can look to no other facts,
than what are apparent upon its face. If the fact then
were as the argument assumes it to be, it ought to have been
specially found by the jury.

But supposing this difiiculty overcome, it would not, in my
opinion, relieve the defendant's case. If the construction
which has been given to the law is correct, that is^ if the

MAINE, 1839. 19

United Sutet v, Bartlett.

oath of the owner is an indispensable prerequisite to the va-
lidity of the enrollment, then no bounty was due. A vessel
with papers which are void, is like a vessel without papers.
She is entitled to none of the privileges of an American
ship, wherever she may have been built, or however owned
and navigated. In the eye of the law she is considered as a
foreign vessel, and can claim only the privileges of a foreign
vessel. And such a vessel can, under no circumstances, en-
title herself to the fishing bounty. The payment was there-
fore clearly made under a mistake, and the action for mon-
ey had and received is the appropriate action to recover back
money so paid.

It may, however, be objected, that if it was paid by mis-
take, it was a mistake of law and not of fact; and that
money paid under a mistake of law merely, is not subject to
repetition. The principle, when stated in general terms, and
as a universal proposition, is not, perhaps, entirely free from
difficulty. In the civil law, opinions of great authority are
ranged on opposite sides of the question. The framers of
the French code, with all the authorities of the civilians be-
fore them, dicided against the principle, and allow money
paid under a mistake of law to be recovered, when the pay-
ment is supported by no moral or honorary obligation, and
can be ascribed to no other cause but a mistake by the party
of his legal obligation. Code Civile, 1377. TouUier^ Code
Civile Francois J vol 6, no. 76; lb, vol 11, no. 63. In the
common law, the authorities are not entirely agreed, though
the preponderance of authority is against the recovery back
of money in such a case. 1 Story's Equity, 121, note 2.
But however it may be when the money is paid by the sup-
posed debtor, no case, that I am aware of, has gone so far
as to decide that an unauthorized payment by an agent, from
an erroneous opinion of the legal obligation of his principal,
shall be binding on the principal, and that he cannot recover
back money thus unduly paid.*

*Bol tee Sloiy oa Agency, § 435. EUiot t. Swartwoat, 10 Peten, 153.

20 DISTRICT COURT,

- - ^—^—^^^f-^ 1, -.^^^ — — ^— _ _ ^ — . .^ — 1. — —

The Amethyst.

Upon the whole, my opinion is, that the enrollment of the
vessel by the officer, without the oath of one of the owners
previously taken and subscribed in conformity with the di-
rections of the act of December 31, 1792, sect. 4, was
void, and did not confer on the vessel the privileges of a ves-
sel of the United States, and consequently she could not be
entitled to the fishing bounty; and that the bounty, having
been improvidently paid, may be recovered back by the
plaintiffs, in an action for money had and received. Judg-
ment must therefore be entered for the plaintiffs for the sum
found by the jury.

This view of the case being decisive, renders it unnecessa-
ry to consider the other question arising on the verdict.

THE AMETHYST.

When property is left derelict on the high seas, those who first find and
take poflsession of it, with the intentioD of saving it, acquire a right to
the exclusive posseseiou, which others, who afterwards discover it,
have DO right to disturb.

The right of property, in goods thus abandoned firom necessity, is not
lost to the owners, and those who find and undertake to save them
are bound in good fiuth to consult the interest of thb owners as well as
ibeir own. K they have not sufficient force to effect the salvage with-
out great risk of the loss of the goods, they cannot, consistently with
the good faidi which they owe to the owners, refiise the assistance of
others, who offer their aid, and who may thus become entitled as
joint salvors to a share in the reward.

January 21, 1840. — This was a case of salvage. The
Ameth3rst, a British vessel, sailed from Boston for St. John,
in New Brunswick, May 1. On the 3d, at 6 o'clock, A. M.
she was struck by a heavy squall, and upset Of twelve
persons onboard, including passengers, ten saved themselves
by hanging to the wreck until 11 o'clock, A. M., when they
were taken off by the schooner Compeer, of Ellsworth. Two
were drowned, and their bodies subsequently found on board
the wreck, (te the 7th of May, the schooners May Flower,

MAINE, 1639. 21

The Ameihytt.

Ocean, and Wave sailed from Boothbay on a fishing voyage,
and fell in with the wreck just before sun set She was
boarded from one of the schooners that evening, and the skip-
pers of the three schooners agreed to lie by during the night,
and tow her into port next day. She then lay about 15 or
20 miles South East of the island of Monhegan. The three
schooners hoisted signal lights, and lay by in company
through the night, and remained so near the wreck that she
was seen at 10 and at 12 o'clock. One was so near as to be
in danger of coming in collision with her. At day-light the
wreck was seen at the distance of a mile or a mile and a
half from the schooners, according to the testimony of the
crews. Another vessel was at the same time seen bearing
down on the wreck. They manned their boats for the pur-
pose of resuming the possession, but when they arrived, they
found that she had been boarded fitom the stranger vessel,
which had then come up with her, and which proved to be the
Only Son, from St. Andrews, New Brunswick, bound to Bos-
ton. When the parties met, a controversy arose between them,
each party claiming the right of prior possession. That of the
three schooners, said that they had discovered and boarded
her the night before : the crew of the Only Son claimed the
right as having the actual possession. Hard words and
threats passed between them ; the party from the schooners
cut the lines, which were made fast to the wreck, from the
Only Son, and being superior in numbers, ' maintained their
possession. The crew of the latter vessel, during the dispute,
took from her an anchor, and secu red it on board their own
vessel, and then were compelled to abandon the prize to their
adversaries. The schooners then made fast to her with their
cables, one before the other, and proceeded with her in tow
to Boothbay harbor. On the morning of the 8th, the weath-
er was pleasant and the sea calm ; but in the latter part of the
day the wind arose and increased to a storm, so that before
they got into the harbor, the schooners, one after another,
parted their cables from the wreck, which was driven on a

22 DISTRICT COURT,

The Amethyit.

dangerous reef of rocks, and the schooners with some diffi-
culty saved themselves from the same danger. The next day
hands were procured to assist in saving the property.
The principal direction of the business, which was attend-
ed with serious difficulties of different kinds, was taken
by Mr. M'Clintock, who appears to have conducted with
spirit, prudence, and good faith. The vessel lay anchored
to the sea, and the waves run high ; the labor was severe,
and the risk of life not inconsiderable in getting the cargo
from the wreck; and, after it was landed, it was necessary to
employ men to guard and protect the property, from persons
who were prowling around for the purpose of plunder.

A claim was interposed by J. T. Sherwood, Her Britannic
Majesty's consul, for the owner, and the case was argued by
DebloiSy for the claimants, and Howard^ for the libellants.

•

Ware, District Judge.

This is a case of salvage of a vessel and cargo, found de-
relict and saved, under circumstances of considerable peril
and severe labor; audit cannot be doubted that a liberal
reward ought to be allowed, unless the claim of the salvors
has been forfeited or impaired by misconduct on their part
It is contended that there has been such misconduct as ought
justly to go either in diminution, or to a forfeiture, of their
claims. The fact relied upon, as impairing their merits, is
their refusal to accept the aid of the Only Son, in saving
and securing the property, in consequence of which, it is ar-
gued that the vessel was finally lost upon the rocks, when the
additional strength of another vessel might have saved her
and brought her into port It is contended that the master
and crew of the Only Son being on the spot with their ves-
sel, and ready to assist in the salvage, the libellants were
bound to accept their assistance, and admit them as joint
salvors ; and they have in fact appeared and filed a claim for
a share of the salvage.

As to the claim of the master and crew of the Only Son,

MAINE, 1899. 23

The Amethyst.

it is to be remarked, that in the controversy that arose be-
tween the parties, they did not claim nor ask to be admitted
as joint salvors. They claimed the sole and exclusive pos-
session of the wreck, as being first in discovering and taking
possession of it. Their avowed purpose was to exclude the
libellants entirely, and take her into port themselves.

It is clear upon the evidence, that when the Only Son dis-
covered the wreck, it was in the legal possession of the libel- .
lants. The proof is that they discovered and boarded it on
the evening of the seventh of May. They left no hands on
board, it is true, to retain the actual and corporeal possession
during the night, nor could men have remained on board
during the night, without some risk of life. But they lay by
in company, near the wreck, for the purpose of taking her in
tow the next morning. The title which' is acquired to prop-
erty by finding, is a species of occupation ; and it is laid
down as a rule of law, by the civilians, that the mere dis-
covery or sight of the thing is not sufficient to vest in the
finder a right of property in the thing found. Pothier, TYailS
de la Propriete, No. 63. His title is acquired by possession,
and this must be an actual possession. He cannot take and
keep possession by an act of the will, oculis et affectu^ as he
may when property is transferred by contract, and the pos-
session given by a symbolical delivery. To consummate his
title, there must be a corporal prehension of the thing.
Though it is said that it is established by custom, (jnoribus
recepium est) and that such was the ancient law of the Ro-
mans, when two are near together, or in company where the
thing is found, that the title is acquired in common. Poihier,
Pandects, 41, 1, 8. Heineccius, Recitatunies in Instii., § 360.
Voei ad Pandect, 41, 1, 9. Upon these principles, the dis-
covery of the wreck left derelict, by the three schooners,
and the boarding her from one of them, was sufficient to give
them the right of possession. The three which were in com-
pany when she was discovered were entitled to share equal-
ly in the good fortune, though she was boarded and the ac-

24 DISTRICT COURT,

The AmethjM.

tual possession taken by only one, for those who boarded
took possession for the benefit of all.*

The right of possession, having become perfect, was not
lost by temporarily leaving the wreck, without the intention
of ultimately abandoning it, but with the purpose of return-
ing and resuming the actual possession, and carrying her to
a place of safety the next morning. Things being once in
our possession remain so, while they are subject to our cus-
tody, and are so situated that we can resume the actual pos-
session at pleasure; and this principle is equally applicable
whether the right of dominion is acquired by finding or by
an onerous title. Poihier, Traiie de la Possession, No. 79.
VhiniuSj In Insiitui. Justin. Lib. 2, 1, 18. When there^
fore the wreck was discovered by the Only Son, on the
morning of the 8th, the fishermen, though not in the actual
possession, pedis positione, had that kind of possession that
preserved all the possessory rights, which they acquired the
night before. Having discovered and taken the property
into their hands, they had a right to retain it for the purpose
of carrying it to a place of safety, and entitling themselves
to the reward allowed in such cases, and to exclude all others
from interfering with their possession. They had not only
acquired rights, but had come under obligations with respect
to the property. The finder of property left derelict at sea,
does not acquire the dominion or the absolute property in
what is found. He acquires the right of possession only,

* It 18, says PoUiier, an ancient pretension, that of claiming a part of a
thing found, on the pretext of having seen it at the same time ; we find it
in Plantus, In Rudente^ Act 4, Scene 3. Trachalion claimed a share in a
ralise which Gripus had fished op from the sea. On this demand Gripns
uka, »* Quemne ego except e mart ?" Trachalion coolly replies, ** £t ego
inspectavi e littore.**

Fhsedr^ commemorates the same pretension in a dispute between two
bald men for a comb —

** Invenit csWus forte in trivio pectinem ;
Accessit alter sque defectus piUs ;
Eia, inquit, in commone quodcunque est lucri ;"

— this if a windfall lor both of as.

MAINE, 1840. 25

The Ameth/at.

'With a title to a reasonable reward for his services, when the
property is brought to a place of safety. The finders were
therefore bound, unless they chose to abandon it, to exert
themselves with all due care, fidelity, and vigilance, to pre-
serve and protect the residuary interest remaining in the true
owners. The master and crew of the Only Son, although
they doubtless supposed that they were the first discoverers
of the wreck, had no right to disturb the possession of the
libellants; and as they were not in sight when the schooners
first discovered and took possession of it, they have no just
grounds for claiming to be admitted as joint salvors.

But although the libellants may have had the right of ex-
clusive possession, they were bound to use every reasonable
precaution to insure the safety of the property, for the benefit
of the owners, and it is argued, therefore, that it was their
duty to accept the aid of the Only Son, though they might
thereby diminish their share of the salvage. It is true that
salvors are bound to act with good faith towards the owners,
and this obliges them to use all reasonable and available
me^ns to ensure the safety of the property. They are infl^u-
enced primarily, in engaging in the service, by the expecta-
tion of a reward. But when once they have engaged in the
business, their own interest is not alone involved. When
the goods are rescued from danger and brought to a place
of safety, they are saved for the owner^ after deducting a just
and proper compensation for the salvors. A person under-
taking to save derelict goods stands, in relation to the owner,
somewhat in the character of a negotiorum gestor of the
Roman law, that of a voluntary agent who interferes in the
affairs of another without a mandate or authority, and he is
bound to act for the interest of the owner as well as his own.
Generally the interest of both will be the same, that of con-
veying the goods to a place of safety without loss and ex-
pense ; but if it is otherwise, it would be a violation of good
faith for a salvor to look solely to the enhancing of his re-
ward at the expense of the owner. The golden rule, of deiU-

26 DISTRICT COURT,

The Amethyst.

ing with others as we would have others deal with us, is a
principle of social duty, deeply laid in morals and in the
constitution of human nature ; and in these cases of provi-
dential calamity, it is a rule of law as well as of morals. If
the finder cannot, with his own force, convey the property to
a place of safety, without imminent risk of a total or material
loss, he cannot, consistently with his obligations to the owner,
refuse the assistance of other persons proffering their aid, or
exclude them from rendering it, under the pretext that he
was the first finder and had thus gained a right to the exclu-
sive possession. The principles of good faith are of univer-
sal obligation, and binding in all cases in which the interests
of others are involved.

Upon this part of the argument the question is, whether
the three schooners with their own crews, constituted a force
apparently sufllcient for the service, under the cixumstances
of the case. For if the force was manifestly inadequate,
so that the attempt to save the wreck, without other assist-
ance, would be exposing the property to great hazard, then
it was their duty not merely to accept, but to solicit aid, and
not expose the property of the owner to a total loss, in their
eagerness to enhance their own reward. The Amethyst was
a vessel of 98 tons ; the schooners were smaller, one being
of 60, one of 55, and one of 45 tons ; but each was manned
with a full crew of fishermen, amounting in the whole to
eighteen men. The weather was calm, and the wreck lay
about fifteen miles from the island of Monhegan, in which
(here is no harbor, and about double that distance from the
safe harbor of Boothbay. To one not versed in nautical af-
fJEurs, tbifl would appear to be a sufficient force to tow the
wreck into port, with ordinarily favorable weather, and the
prospect of the morning was that of good weather. The
prudence And poopriety of men's actions are not to be judged
by the «vent, but by the circumstances under which ihey
act If they conduct with reasonable prudence and good
judgment, they ase not ^ be floade responsible because the

MAINE, 1840. 27

The Amethjit.

event, from causes which could not be foreseen nor reasona-
bly anticipated, has disappointed their expectations. The
schooners took the wreck in tow, and had without difficulty
carried her nearly to a place of safety, when, the weather
having become boisterous, the cables broke, one after another,
from the violence of the tempest, from their holdings, and at
last from the wreck, and she was carried by the waves on
a dangerous reef of rocks, so that the vessel was nearly a
total loss. Now it is not apparent how another vessel, of
. about the same tonnage as the fishermen, would prevent this
calamity. If the weather had continued favorable, the three
were sufficient; and in the storm which arose, it is not prob-
able that the presence of the Only Son would have insured,
or could have contributed much towards, her safety. On the
facts proved, it does not appear that the libellants would
have been chargeable with any fault which would impair
their claims for salvage, by declining to admit their partici-
pation in the service, if it had been oflfered. But in point of
fact it was not oiSercd.

The whole mass of property saved in this case is small ;
the value, after deducting expenses, amounting only to
$841 12, the largest part of one moiety of which is exhaust-
ed by the necessary expenses of getting the property ashore
and securing it, after the wreck went on the rocks. ' So that
leaving but a pittance for the owners, the compensation of
the salvors will scarcely amount to a, quantum meruii, for the
laborious and dangerous service of rescuing the goods from
the waves, and I may add, saving them from pillage from
the piratical shoresmen, after they were landed. I shall al-
low 400 dollars salvage, leaving the cost and expenses a
chai^ on the residue.

Decree,

This case came on to be heard upon the libel, answer, de-
positions, and exhibits in the cause, and was argued by coun-
sel ; upon consideraiion whereof it is ordered, adjudged, and

DISTRICT COURT,

The Amethyst.

decreed, that there be allowed, out of the proceeds of the sale

of the savings of the wreck of the vessel and the cargo no\k

in the Registry, the sum oi four hundred dollars as salvage.

And it is further ordered, adjudged, and decreed, that o

said sum of four hundred dollars there be allowed and paii

The owners of the Schooner Ocean, $40

The owners of the Schooner Wave, $40

The owners of the Schooner May Flower, $ 40

$120

and that the residue of the said sum of four hundred dojlars

to wit: the sum of two hundred and eighty dollars^ be divid

ed into twenty shares, and that there be allowed and paid tc

Samuel IVPCIintock, who superintended

the landing of the goods, &c., 1 Share, $14

Moses Lewis, Skipper of Sch. Ocean, 2
George Brewer, Skipper of Sch. Wave, 2
John Hotten, Skipperof Sch. May Flower, 2
Benjamin Orchard,

James Lowry,
John Knowles,
Morrill Thompson,

, cook,

Benjamin Gray, boy,
JPreeman Reed,
James C. Auld,
Samuel Brewer, •
Caleb S. Reed,
Ira (iuimby,
James Goold,
William HuflF,
Samuel Montgomery,
William Hotten,

Crew of the
Ocean.

Crew of the
Wave.

280
120

$400

And it is further ordered, that all costs and expenses be
charged on the residue of the proceeds of the sale remaining
in the Registry, amounting to $ 441 12, and after deducting

boy,
do.
do.

do.
do.
do.
do.
do.
do.
do.
do.
do.
do.
do.
do.
do.
do.
do.
do.
do.
do.

MAINE, 1840. 29

The Caliito.

the same, that the remaining sum be paid to Joseph T. Sher-
wood, Esq., her Britannic Majesty's Consul, and the author-
ized attorney of the claimants, for their use.

And it is further ordered, that the sum of thirty dollars^

found on the person of , a passenger found on board

the vessel, drowned, now in the hands of Thomas Cunning-
ham, Coroner, after deducting ten dollars to be paid Sam-
uel M'Clintock for the expenses of his interment, be paid to
the said Jaseph T. Sherwood, for the use of the legal heirs
of the deceased.

THE CALISTO.

fiy the general maritime law, material men, who ijerform laborer furnish
materials for building or repairing a vessel, have, in addition to the lia-
bility of the owner, a lien on the vessel for their security. But this
principle of the maritime law has never been adopted by the common
law.

•ft3y the maritime law of the United States, material men have a lien on
the vessel for supplies furnished a foreign vessel, but not for supplies for
a domestic vessel And, for the purposes of a lien, every vessel is consid-
ered foreign, when in a port of a State to which she does not belong.

*llie statute of Maine, of Feb. 19, 1834, ch. 626, giving, to " all ship-car-
penters, caulkers, blacksmiths and joiners, and other persons who per-
form labor, or furnish materials for, or on account of any vessel build-
ing or standing on the stocks, by virtue of a writtep or parol agree-
ment," a lien on the vessel, does not include the case of a laborer hired
generally and employed in various work, so as to give him a lien on
the vessel, for his wages, for such part of the time as he may have been
employed in work for the vessel.

March 30, 1840.— This was a libel against the hull of a
new brig, built during the last season by David Spear. It was
alleged in the libel, that Spear commenced building the vessel
in April last, and that the hull was finished and launched on
the 6th of February; that the libellant was employed by
Spear in building her, and that there remains due to him,

30 DISTRICT COURT,

The Caliito.

for his services, the balance stated in the schedule annexed
to the libel, amounting to $116 64, which he has demanded
and which remains now unpaid, for which he claimed alien
on the vessel for his security, and praying that the vessel may
be decreed subject to the lien and sold for the payment of
what is due.

Spear was duly served with process, but did not appear,*
but Mr. Purinton, intervening for his own interest, entered an
appearance and filed a claim as owner, and put in an an-
swer, in the nature of a plea to the jurisdiction, alleging, that
at the time when the labor is said to have been performed,
the vessel was, and ever since has been, wholly owned by
citizens of this State, viz. by said Purinton, the respondent,
that she is a domestic vessel ; and concluding with a prayer
that the libel may be dismissed. Afterwards, upon a suggestion
from the Court that the objection to the jurisdiction could not
be sustained, he put in an answer to the merits, alleging that
the vessel was builtlby Spear ifor him, denying all knowledge
of the libellant's having been employed, or having rendered
any service, in building the vessel, and putting him to the
proof of his claim.

Evidence of the declaration of Spear was offered by the
libellant, tending to prove that, by the terms of the contract,
he was specially engaged for work upon this vessel ; but the
evidence was ruled to be inadmissible.

The case was argued by Fox^ for the libellant, and by C
S. Daveisj for the respondent.

Ware, District Judge.

The plea to the jurisdiction has been very properly aban-
doned at the argument The objection was presented in pre-
cisely the same form in the case of Peyroux vs. Howard^ 7
Peters J 324; that is, that all the parties were citizens of the
same State, and overruled in both the District and Supreme
Court The same question was also raised and decided in
the same way in the case of Davis vs. New Brig^ CHlpin, 474

MAINE, 1840. 31

The Calisto.

la cases of admiralty and maritime jurisdictioa, the com-
petency of the court does not depend on the citizenship of
the parties. Tiie jurisdiction is founded on the subject mat-
ter, and attaches, whoever may be the parties, and wherever
they may reside. And, that contracts of material men, for
materials found and labor performed in building and repair-
ing vessels, are matters of admiralty and maritime jurisdic-
tion, has been too often decided to admit of controversy at
this day. Over these contracts the admiralty exercises a gen-
eral jurisdiction. It will in all cases give a remedy inperso-'
nam; and whenever the law gives a lien or privilege againi^t
tlie vessel, it will enforce it by process in rem. The Genera
€mI SmUh, 4 Whcaton, 438. The Aurora, 1 Wheat, 105.
The Jerusalem, 2 GaU. 345. The Robert Fulton, 1 Paine,
620. The St. Jago de Cuba, 9 Wheal. 409. The New Jer-
sey, 1 Peters Adm. Rep. 223. The Eagle, Bee. 78. In every
proceeding in rem, therefore, founded on such contracts, the
question is not, whether the Court can take cognizance of the
subject matter, but simply whether, in the particular case, the
creditor has a right to look to the vessel itself for his secu-
rity, or is con&ned to his personal remedy against the debt-
or.

By the general maritime law, material men, under which
term, in the language of the admiralty, are included all per-
sons who supply materials or labor in building or repairing
vessels, or furnish supplies which are necessary for their em-
ployment, as provisions for tlie crew, have, in addition to the
personal liability of the debtor, a lien on the vessel for their
security. Ordinance de la Marine, Liv. 1. Tit. 14. Art. 16.
1 Valin 363. Consulat. de la Mer. Ch. 32, 33, 34 ; jBom-
cherts Translation. Cleirac. Jurisdiction de la Marine p.
351. Art. 18. No. 4, 5. It is commonly said that this prin-
ciple was borrowed by the maritime, from the civil, law.
Abbot on Shipping, p. 108, 9. But it seems more probable
that it originated in the maritime usages of the middle ages,

32 DISTRICT COURT, '^

The Calitfto.

where we find the origin of all the general principles of the
law of the sea. The Roman law did, it is true, allow to
those who loaned money for the building, repairing or the
supplying of vessels, a privilege against the vessel. Dig. 20,
4, 5 and 6. Dig, 42, 5, 26 and 54. But in that law a priv-
ilege did not amount to an hypothecation. Peckius Ad rem
Naut, ; Note of Vinnius b, page 233. VoeL Ad Pand. 20,
2, 29 and 20, 4, 19. Vinnius, Select, Juris Quaest, Lib.
2, C. 4. Heinn. Ad, Pand. Pars. 6, § 263. The first only
gave Sijuspraelationis, a right of prior payment out of the
thing, before it could be taken by unprivileged creditors. It
was like the priority laws of the United States, and did not
attach as a lien on the thing. And the privilege of material
men, for supplies furnished for a vessel, was also postponed
that of the fisc. But hypothecation gives a, jus in re, a spe-
cies of proprietary interest in the thing itself. And in the
maritime law every privilege imports a tacit hypothecation.
Emerigoiiy Contrats a la Grosse, Ch. 12, Sect. 1 and 2. If
therefore it was adopted from the Roman law, it was adopt-
ed with an important modification, giving to the privileged
the rights of an hypothecary creditor, and raising the privi-
lege to an hypothecation.

But this principle of the maritime laAr is not acknowledg-
ed by the common law, and has never been received by the
commercial jurisprudence of England. Abbot on Shipping,
109. It has however been partially adopted in the maritime
law of the United States. Our law allows the lien when the
supplies are furnished to a foreign vessel ; and, for the purposes
of the Hep, a vessel is considered as a foreign vessel, when she
is in a port out of the State to which she belongs or where
her owners reside. But when supplies are furnished to a
vessel, in the State where she belongs and is owned, no lien
is created by the maritime law of the United States. If,
however, it is allowed by the local laws of the State, it may
be enforced by process in rem in the admiralty.

MAINE, 1840. 33

The Calitto.

In the present case, the labor was performed on a new
vessel, owned in the place where she was built, and, being a
domestic vessel, whether the creditor has a lien upon her for
the value of his services, depends entirely on the law of the
State. The lien is claimed under an act of the Legislature
of Maine, of Feb. 19, 1834, Ch. 626, Sect. 1. This act pro-
vides, "That from and after the passing of this act, all ship-

carpenters, caulkers, blacksmiths, and joiners, or other per-
sons, who shall perform labor or furnish materials for and
on account of any vessel building or standing on the stocks,
by virttie of any written or parol agreement^ shall have a lien
on such vessel for his or their wages until four days after said
vessel is launched, and may secure the same by an attach-
ment on said vessel ; which attachment shall have prece-
dence of ail other attachments where no such lien exists."
That labor was actually performed by Read in the building
of the vessel, has been sufficiently proved, and is not now de-
nied. The question which has been discussed at the bar is,
whether it was performed under such circumstances as enti-
tle him to the benefit of the law. For it is not sufficient that
materials be furnished, or labor and service rendered, in the
construction of a vessel. This must be done by virtue of an
agreement; and what sort of an agreement will bring a par-
ty within the privilege of the act, is the precise question
which is involved, and has been learnedly argued, in this
case.

There was no written contract between the parties, and
there is no direct proof of the tenns of agreement by which
Read was engaged. They are left, by the testimony, to be
inferred from the circumstances under which the engage-
ment was made, and the manner in which the contract,
whatever it might be, was executed. It appears that,
about the I6th or 17th of April, Read came to the house of
Capt. Spear, the builder, a stranger, and by birth a for-
eigner, in a state of great destitution, and wished for employ-

34 DISTRICT COURT,

Tlie Calitto.

ment. Spear took him into his house, furnished him with
some clothing, and employed him a few days for his board.
He then left and went to Portland to seek business, but not
being successful in obtaining it, he returned, and was agaia
employed by Spear, and continued in his service until No-
vember, when he was finally discharged. For the first
month he was employed exclusively in gardening, planting,
laying stone wall, and other labor on the farm. About the
beginning of June he went into the smithery, and was en-
gaged part of the time at his trade as a blacksmith, in doing
the iron work for the vessel. Butman, one of die witnesses,
who was also employed as a blacksmith for two months and
eight days from the 19th of May, says that during that time
he constantly worked with Read, and that about half the
time they worked in the shop, and about half the time on
the farm, on the highways, in the woods getting timber, and
various work. After that period, and until Read was finally
discharged, his employment was not wholly, but more ex-
clusively, upon the vessel, either in the shop preparing the
iron work, or in the yard boring on the ship. While in the
smithery, however, he was not wholly occupied in work for
the vessel, but occasionally did other jobs which were brought
by the neighbors to the shop, but all on Spear's account.
The proportion of the time employed upon the vessel is not
clearly proved, but is estimated by some of the witnesses as
about three-fourths of the whole period from the commence-
ment to the close of his employment

It has been already observed, that the statute does not cre-
ate a lien for labor and materials, upon the simple and naked
fact that they have been actually employed in the building
of the vessel ; the lien arises only when the materials and
labor are furnished by virtue of a previous agreement The
argument of the libellant's counsel is, that the performance
of the labor, or the supply of the materials, having been prov-
ed, and the actual appropriation of them to the finishing of

MAINE, 1840. 35

The Caliito.

the vessel, it is uunecessary to proceed further and show the
agreement in pursuance of which it was done; but the fact,
that it was done in the execution of a previous contract, re-
sults as a presumption of law. To a certain extent this is
undoubtedly true. If labor has been performed for another,
with his knowledge and under his direction, or goods have
been furnished, received, and consumed by him, the law will
certainly imply from these facts, an agreement But what
agreement will be presumed ? Why, on the part of the per-
son who receives the benefit, that he agreed to pay what they
were reasonably worth, and, ordinarily, nothing more. Sup-
pose a man, who is by trade and occupation a ship-builden
hires a laborer to work for him* a year, but the particular
terms of the agreement, except its duration, are not suscep-
tible of proof. The law will imply nothing more than that
he should perform such services as are usually required of
hired laborers, and, after the contract is executed, that the
hirer shall pay him a reasonable compensation for such ser-
vices. Again, suppose such a ship-builder to purchase a
quantity of lumber suitable for ship building ; if the partic-
ular terms and conditions of the contract do not appear, the
law will imply nothing more on the part of the purchaser
ordinarily, than a promise to pay what it is worth. A
contract or agreement requires, as essential to its existence,
the assent of two or more minds; duorum vel plurium in
idem pUicitum consensus. Dig, 2^ 14, 1, 51. If particular
pacts or conditions are annexed to the contract, qualifying
its general nature, or varying and modifying its general ob-
ligations, there must be the same assent of the parties to
these conditions to give them validity, as to the substance
of the contract. It must be a consent in idem placitum.
If the parties have not taken care to express these accessory
conditions in the terms of the contract, or what juridically
amounts to the same thing, if they cannot be proved, the
law will not presume the assent of the parties to them, un-

36 DISTRICT COURT,

The Calisto.

len, from the circamstances of the case, or the ordinary
course of dealing, these are plainly to be inferred.

Let us now apply these general and familiar principles of
law to the evidence in this case. The fact that the iibellant
labored for Spear, and under his direction, from April toNo-
▼ember, and that he was part of the time employed upon
the vessel, is admitted. That the labor was performed by
virtue of an agreement, will be inferred as a presumption of
law. But the law will infer, from the general fact, nothing
more than a general contract for labor; and what is there in
the present case that will authorize the presumption of any-
thing beyond this? Nothing, except what results from the
manner in which he was actually employed, and the fact
that he was a blacksmith by trade. As to the kind of labor
in which he was employed, it appears that for the first month
be was exclusively occupied in various work on the farm;
for the two following months, about one half of the time on
the farm, and one half in the blacksmith's shop; and during
the residue of the term of his service, principally in the shop
at his trade, in doing the iron work for the vessel, or in the
yard working on the ship; but part of it, also, on the farm.
Taking then the whole course of his employment, the result
will be against this presumption of a special contract with
him as a mechanic, for labor on the vessel. Whatever pre-
sumption might arise from the fact that he was by trade a
blacksmith, is overcome by the various kind of labor in which
he was actually employed without any objection on his part.
The inference certainly is, that he was hired rather as a
Jack-at-a 11- trades, than as a master of one. And this re-
ceives confirmation, partially at least, by all the evidence
which has been offered touching the rate of wages for which
be was engaged. It appears from his own declaration, that
Spear would consent to give him but fourteen dollars a month,
though ho said he ought to have sixteen. But all the proof
is, that the rate of wages for a blacksmith at this time, was
not less than a dollar a day, about double the rate at which

MAINE, 1840. 37

The Caliito.

he was to be paid. It appears to rae, that the fair conclusion
to be drawn from all the facts is, that this was a general
agreement for service as a hired laborer, and not a special
contract for any specific kind of labor.

Does a person, hired as a laborer generally, and employed
under that general contract part of the time in work upon the
vessel, come within the fair intent and meaning of the legis-
lature, so as to be entitled to a lien on the vessel for his wa-
ges, during that part of the time that he is so employed ? The
language of the law is, that any persons of the description
named in the act, who shall perform labor and furnish ma-
terials /or or on ojccount of any vessel, by viritie of a written
or parol agreement^ &c. The labor must be performed, or the
materials furnished, in pursuance of an agreement, and it
must be an agreement to do this for, or on account of, the ves-
sel to which the lien attaches. The intention of the law is,
to give to that class of persons called, in the language of the
admiralty, material men, a privilege against the vessel for
their security, not universally and in all cases where their
labor or the materials furnished by them have been applied
to the building of a vessel, but where this has been done un-
der a contract for, or on account of, the vessel to the use
of which they have been appropriated. The contract must
therefore have itself a reference, tacit or express, to the
vessel against which the privilege is claimed. It is not in-
tended to be said that, in all cases, a mechanic who is
employed in building a vessel, or a material man who
sells lumber which is used in the construction of it, must,
in order to maintain their lien, prove that the vessel was
expressly named in the contract In ordinary cases, or cer-
tainly in very many cases, this will be presumed. And
these contracts being made while the vessel is in the process
of building, and the labor or materials appropriated to her
construction, it would require some countervailing circum-
stances to overcome the natural presumption that the coii-
tracts were made with a view to the particular vessel. I

38 DISTRICT COURT,

United States e. Webster.

fully agree with the libellant's counsel, that the lien being
one beneficial to the general interests of commerce, and hav-
ing its foundation in natural equity, tlie law ought to re-
ceive a liberal construction, to carry into full effect the be-
neficent intentions of the legislature. It belongs to that
class of liens which the law habitually favors. And the
act, being in fact but a mere recognition or adoption of a
principle of the general maritime law, as old as the law it-
self, a court of admirahy would be the last tribunal to feel
any reluctance in giving to it its fullest and most beneficial
operation. But to extend the privilege to a case like the
present, would be carrying the lien beyond what seems to
me to be the obvious and clear intention of the legislature,
and also further than it would be supported by the princi-
ples of the general maritime law.

Libel dismissed.

UNITED STATES versus WEBSTER.*

The duty of a quartermaster is to provide supplies and necessaries for
the army. Under the general laws relating to the service and the
army regulations, his authority is restricted to furnishing supplies of a
particular description, and if he furnishes other articles than such as
are allowed hy law and usage, he cannot charge the United States with
them.

The laws and usages of the service restrict him as to the nature of the
claims against the United States, arising out of the service, which he
may settle and allow, and if he settles and pays such as he is not au-
thorized to pay, such payment will not be a legal set-off in an action
by the United States against him.

It is the duty of die quartermaster to provide quarters, hospitals, provis-
ions, &e., for the army, and when obtained by contract he may pay for

* This caoe was carried to the Circait Coart by writ of error, bat did not
come to a hearing until after the decision in the case, United States v. £lia-
■on, (16 Peters, 291) made in 1842. It was then a6irmed without argument
spon the anthority of that decision.

MAINE, 1840. S9

United SUtet o. Webster.

them. But when taken by impressment, whether be is authorized to
settle and pay for them, by law and the common usage of the army —
Qunre.

But such claims against the United States, arising during the Florida war,
he had authority to adjust and settle by the act of May 28th, 1896,
cb.32.

The preamble of a statute cannot control the enacting part of the law
when the meaning is clear ; but when the language is ambiguous and
may admit a larger or more restricted interpretation, the "preamble may
be referred to, to determine which sense was intended by the legisla-
ture.^

The reasoB of this rule of interpretation is, that it states the reasons and
objects of the law.

If the reasons and objects of the law are made known by any other doc-
ument equally authentic and certain, these may for the same reason
be referred to, to sdd in the interpretation of doubtful or ambiguous
language in the law.

The intention of the act of May 28, 1836, was, to authorize the quarter-
master to adjust and pay such claims, against the United States, as he
was not autboria^ed to settle and pay under the general laws and usages
of the service.

Under this act, the quartermaster was authorized to settle and pay for
articles taken for the use of the United States, with the consent of the
owners, without contract, or impressed ; whether such as are consuma-
ble, as provisions ; or not, as horses, carriages, arms, &c, and are lost
by the accidents of the war. The common principle of the law of
letting and hiring, by whiab, in a loan for use, the lender runs the
risk of loss by extraordinary accidents, does not apply to such a case.

But the law did not authorize him to pay for special damage to a house
and grounds, occupied for quarters for the officers and for an encamp-
ment

Under the order of the War Department of May 18, 1833, repeated in
that of 1835, and making the 56th art. in the Digest of December,
1836, the defendant is not entitled to charge commissions on his dis-
Inirsements.

June Term, 1840. This was a suit brought by the Unit-
ed States against Captain Webster, a disbursing oflELcer in
the quartermaster's department of the army, to recover a

40 DISTRICT COURT,

United SUtes v. Webster.

balance of money alleged to be remaining in his hands, and
for which he had not accounted. The jury to whom the
, case was submitted returned a special verdict, stating the
general balance claimed, viz, $8,481 47, and enumerating
the particular credits claimed by the defendant, and referring
lo the decision of the Court as matter of law, whether he
was entitled to the credits which he claimed, or any part of
them.

The facts found by the verdict are, that the defendant was
duly appointed an acting assistant quartermaster of \he left
wing of the army, in active service in the war against the
Seminole Indians, on the 15th of February, 1836, and con-
tinued to act as such till March 1, 1837, during which peri-
od the disbursements were made; — that in that time he re-
ceived the sum of $143,595 04; that during the whole time
he held the commission of a first Lieutenant in the line of
the army, and received the pay and emolumciits attached to
that office, and no other; that he claimed a commission of
2 1-2 per cent, for disbursing part of said sum, amounting to
$2,652 46, which was disallowed by the accounting officer
of the Treasiury Department, and that this per centage, if by
law any may be allowed, is a reasonable compensation for
said service, and ought to be deducted from the balance
claimed to be due. •

The jury also found, that the disbursements were made for
expenses incurred and supplies furnished, on account of the
militia received into the service of the United States in Flor-
ida, prior to the 28th of May, 1836.

And they further found, that of the moneys then received
and disbursed by the defendant, he paid —

First, for property impressed into the service of the Unit-
ed States, and lost in their service, $325.

Secondly, for property not purchased, but received into the
service of the United States for their use, with the consent of
the owners, viz : horses and veliicles for triinsportation, and

MAINE, 1840. 41

United SUtei e. Webster.

horses and military equipments, used by the militia in said
service, and lost and destroyed, the sum of $5,144 15.

Thirdly, for special damages done to & house occupied as
quarters, and to ground occupied as an encampment, in said
service, $130.

Fourthly, for articles purchased and used in the service,
$300 40.

All these credits had been presented, to the accounting de-
partment of the government, and disallowed; and are to be
allowed to the defendant in offset, all, if, in the opinion of
the Court, they were paid and disbursed agreeably to law.
And if, in the opinion of the Court, the defendant is, by law,
entitled to all the credits he has claimed, including the per
centage, then the jury find that the defendant never promis-
ed; and if, in the opinion of the Court, the defendant is not
entitled to the whole, but is entitled to any part of said cred-
its, then such part as he is by law entitled to, is to be deduct-
ed from the said sum of $8,481 47, and the jury find that
he did promise for the residue.

The case was elaborately argued by Hobbs, for the defend-
ant, and Howard, Dist. Attorney, for the United States.

Ware, District Judge.

The question, which the jury, by their verdict, have refer-
red to the opinion of the Court, is, whether the defendant is
by law entitled to all or any part of the credits which he
claims. If he is, they find that to that extent they are to be
allowed and deducted, as offsets from the general balance
demanded by the plaintiffs. So far as these consist of
charges for disbursements, it was not denied at the hearing
that they were actually made by him, under color of his au-
thority as an acting quartermaster, and that the articles
paid for were actually received and consumed by the troops,
or lost. The ground on which the allowance of them is con-
tested, is, that the disbursements were made in satisfaction
of claims against the United States, which, however just

42 DISTRICT COURT,

United Statei «. Webiter.

and valid they may be, he, in his quality of acting quarter-
master, was not authorized to settle and pay.

1. The jury have distributed these credits into four
classes, distinguished from each other by the different cir-
cumstances, under which the several claims against the Unit-
ed States originated. The first class is constituted of arti-
cles impressed and lost in the public service. It is not de-
nied, as it cannot be, that the owners are justly entitled to a
compensation for their property thus taken without their
consent, and appropriated to the public use; but it is said
that it does not fall within the ordinary duty of the quarter-
master's department, to adjust and settle claims of this de-
scription; these claims having, as it is contended, always
been settled by a different tribunal.

It is the peculiar and appropriate duty of the quartermas-
ter's department, to provide for the troops such supplies and
necessaries, and to procure such services to be performed, as
the exigences of the public service require for the subsistence,
the comfort, and the efficient action of the army, whether in
movement or position. But the general laws, the army reg-
ulations, and the ordinary usages of the service, restrict the
quartermaster, in ftirnishing these supplies, to articles of par-
ticular descriptions. He has not an unlimited authority to
furnish the troops, at his discretion, with any articles, which,
in his judgment, may be necessary or convenient for them,
or conducive to their health or comfort. If, therefore, he
purchases for their use, articles which are not authorized by
the regulations and usages of the service, he cannot charge
them to the United States. Being an agent acting under a
limited authority, he cannot charge his principal, when he
exceeds his authority. The same regulations and usages
may undoubtedly restrict the quartermaster, as to the nature
of the claims which he is allowed to adjust and settle, al-
though they may be immediately connected with the sub-
sistence and operations of the army, and indispensable to the
service; and if he undertakes to pay such claims, he cannot,

MAINE, 1840. 43

United Sutes v. Webster.

by the accouDting officer, be credited for such payments, and
it may at least be questionable whether they can be allowed
by the Court, as a legal or equitable set-off, in an action
against him for a balance unaccounted for. Such a pay-
ment may constitute a just claim against the United States,
and he may be equitably subrogated to the rights of the
creditor whose demand he has satisfied, but he will be turn-
ed over to the same remedies, for obtaining his remuneration,
which would be open to the original creditor.

If these accounts of Captain Webster were to be settled
and adjusted under the general laws, providing for this
branch of the public service, and the regulations and estab-
Ushed usages, which constitute the complement of the law,
it would be desirable to have some more satisfactory evi-
dence of what those usages are. No part of the army rules
and regulations,' which has been quoted at the bar, speaks at
all of the forcible impressment of articles for the public ser-
vice, nor, of course, of the mode of settling and paying for
them. They neither affirm nor deny the authority of the
quart^master iu this particular. I am not aware that, from
the silence of the regulations, any argument can be drawn
either in favor or against his authority. It is made the duty
of the quartermaster, ^o provide quarters, hospitals, provis-
ions, fuel, forage, means of transportation, and other neces-
saries of the service. Ordinarily, they will be obtained by
contract ; but if they cannot be so obtained, the necessity of
the case, and the usages of war, authorize the taking them
by force. But as private property cannot be taken for the
public use, without a just compensation, {ConsiiitUion of U.
S. Amendments^ art. 6,) the authority of an officer to take,
would seem to involve that of paying the fair value when
taken. But it is said, that though the officer has the right,
in a case of necessity, to take by impressment, his authority
to pay the price of what he has taken, is negatived by the
established and uniform usage of the service. A number of
acts of Congress were referred to^ providing specialty for the
payment of impoDeesed prop^ty^ t^d tboy hay® t>eeo insisted

*4 DISTRICT COURT,

United States •. Webster.

upon as proving, that it has been the invariable practice of
the government, to provide for the settlement of such claims
by special laws. Now these laws prove affirmatively, that
such claims have in many cases been provided for, by special
laws; but they do not prove negatively, that no claims of
this description may be, or ever have been settled, and adjust-
ed, under the general laws and usages applicable to this
branch of the public service. The acts referred to were not
laws providing for the current expenses of the army, but for
the settlement of old claims, which may have been omitted
to be adjusted and paid at the times, from other causes than
the incompetency of the quartermaster to settle them.

But in point of fact, the decision, of this part of the case,
does not turn principally on the general laws, providing for
the military service, nor upon the common and ordinary
usages of the army. All the payments of Captain Webster,
which are now in controversy, were made under the author-
ity of an act, specially providing for the expenses of the
Florida war. This act provides, "That the Secretary of
War be, and he hereby is, directed to cause to be paid the
expenses that have been incurred, and the supplies which
have been furnished, in the states of South CaroHna, Geor-
gia, Alabama, Louisiana, and the territory of Florida, on ac-
count of the militia and volunteers received into the service
of the United States, in defence of Florida ; Provided, that
the accounts, for these claims, shall be examined and
audited at the Treasury, as in other cases." Act of May
28, 1836, eh, 82, sect, 1. The question therefore is, whether
Capt- Webster was authorized, as an acting quartermaster, to
settle and pay the claims, which form the subject matter of
this controversy, under this law. The law provides for the
payment of expenses incurred and supplies furnished. These
are terms of very general import, and there is nothing in the
language of the act limiting them to expenses and supplies
of any particular description ; nor is there any thing, which
Authorizes us to give them a more extensive operation, than
Mhey have in the general laws, relating to the same general

MAINE, 1840. 45

United SUtei v. Webiter.

subject, that is, to the military service. Looking at the
words of the act alone, therefore, it is difficult to derive from
them an authority for the payment of any other claims, than
such as the quartermaster is authorized to settle, by the gen-
eral laws and military usage. But there is a paper, among
the public documents of that session of Congress, which may,
like the preamble of a statute, serve to fix and give a more
precise and definite meaning to these general terms, by show>
ing the cause and purposes for which the act was passed.
Executive Documents^ 1 Session 24 Congress^ Doc. 231. It is
a paper which was prepared by the War Department, submit"
ted to the House of Representatives, and by their order print-
ed, before the passage of the lavr. It contains an abstract of
the various claims, which were, or would be, preferred agains^
the United States, growing out of the Florida war, for the
payment of which, there was no authority under the exist-
ing laws, and which must therefore be ultimately rejected,
unless provision were made for their settlement by a special
act.

It is a rule in the constmction of a statute, that recourse
may be had to the preamble, though it is in strictness no
part of the law, as one element for opening and expounding
the meaning and intention of the legislature, although it
cannot control the enacting part of the law, when the words
are clear and explicit, and are manifestly more comprehen-
sive than the preamble. (1 Black. R. 669, Perkins v. Sew-
all. Cowp. 543, Pattison v. Banks.) But when the words
of the enacting pari are ambiguous, or may fairly admit a
larger or more restricted signification, then reference may be
made to the preamble, to determine which sense is intended
by the legislature. The reason is, that the preamble states
the grounds and objects of the law. And when the reasons
and grounds of the law are made known, in any other man-
ner equally certain and authentic, they are entitled to have
the same influence, in the construction of a statute, as the
preamble, if the meaning of the words is doubtful, because

46 DISTRICT COURT,

United SUtei o. Webiter.

every law ought to be carried into effect according to the in-
tention of the law maker, when the intention can be certain-
ly known. {Com, Dig. ParliamefU, R, 11.)

It appears to me that a document, prepared and published
as this was, and preserved among the public archives of the
country, stating the nature of the claims to be provided for,
and the necessity of a special act for that purpose, and which
was before the legislature, at the time when the law was
passed, may be fairly invoked in aid of the exposition of the
statute I not to control the meaning of the legislature clearly
and explicitly expressed, but to give a precise and determin-
ate meaning to words which are ambiguous, or expressions
which may be taken with a greater or less latitude of signi-
fication. If it does not bring before the Court the objects
and intentions of the law-maker, in so solemn and authentic
a form as when these intentions are set forth in a preamble,
at least it affords a medium of exegesis, against which the
Court cannot shut its eyes, without excluding, from its con-
sideration, what would have an influence upon every mind
studious of ascertaining the real intent of the law-maker.

It appears from this paper, on the sudden breaking out of
the war in Florida, the promiscuous massacre of the people,
and the wasting of the country by a savage foe, that the
militia and volunteers, of the territory and of the neighbor-
ing states, turned out with great promptness and alacrity, for
the defence of the distressed inhabitants. In this hasty and
tumultuary assembling of the military force, there were, as
might be expected, great irregularities committed, and a va-
riety of expenses incurred, some from necessity and some
through ignorance, which are not authorized in the regular
and ordinary course of the military service. The troops were
collected, or rather assembled, with strong hands and willing
hearts, overflowing with zeal and patriotism, but with little
knowledge or familiarity with the details of military duty,
and without military arms and accoutermenls, provisions, or
necessary camp equipage ; and these appear to have been

MAINE, 184». 47

United Suteg e. Webater.

taken with great promptitude, and little ceremony, wherever
they could be found. Furor arma ministrqt. In the State of
South Carolina, it is stated in a letter from the Governor to
the Secretary of War, that horseswere impressed and apprais-
ed, by warrants from the colonels of regiments, under a belief
thskt they would be paid for, at that valuation. The remark of
the War Department is, that there is no law which authorizes
the payment for horses under such circumstances. A letter of
Col. Gadson, quartermaster-general of Florida, states that
volunteers are rushing in from all quarters, and making or
converting every private storehouse into a public depository,
from which is taken any thing that may be wanted, upon
the simple receipts of even unauthorized agenta Volunteers,
he says, were considered as entitled to any thing they want-
ed, and, from private storehouses, the drafts have been lar^
for blankets and a variety of articles not issued under the
regulations. Property was seized and appropriated to the
public use, with a degree of irregularity and illegality rarely
witnessed. It is hard, he adds, that those who yielded to
the press should not be indemnified, and he proposes that all
these claims should be settled on principles of equity. ' The
War Department, upon this, remarks that there is no law,
which authorizes the payment of claims on equitable princi-
ples merely; or which^ if paid, would release the disbursing
or paying officers, from the operation of the laws and rules
of the Treasury, on the settlement of their accounts. There
appears to be no remedy but legislation. All this irregularity
is not a matter, which should occasion surprise. It is what
might, under the peculiar and distressing circumstances of
the case, naturally be expected. The unprotected inhabi-
tants, after a long period of peace and tranquility, were
aroused from their dreams of security, by the sudden on-
slaught of a barbarous and merciless foe. DinUcandum e$t
pro arts et fods. They were girding themselves for battle,
in defence of their altars and houses, of their wives and
children.

4« DISTRICT COURT,

United Statei v, Tfebster.

It was upqn statements like these, that the law of 1836
was made, providing specially for the payment of the ex-
penses incurred and the supplies furnished. If the expenses
had been such as the disbursing oflScers were authorized to
pay, under the existing laws and ordinary usages of the
army, no special act would have been required. It was be-
cause they were not of this character, that a special act was
necessary to provide for th^m, and the natural presumption
is, that it was intended to meet all the cases described in the
abstract, provided they come within the words of the law in
their natural and ordinary signification.

It appears to me, that it is not straining the meaning of
language to hold, that the payment for articles thus irregu-
larly taken and appropriated to the public use, is included in
the term, expenses incurred. It is certain that somebody
musit be liable for them, and against whom can they equita-
bly be charged, unless against the party for whose benefit
they were taken, and to whose use they were applied ? Now
among the expenses particularly described, and which the
disbursing ofiicers were not authorized to pay, were articles
irregularly impressed and appropriated to the use of the
army. It appears to me that the natural and just conclusion
is, that one of the objects of the law was, to supply that au-
thority. My opinion therefore is, thjt the defendant is enti-
tled to the credits claimed under this part of the finding of
the jury.

2. The second class of credits claimed, as they are ar-
ranged by the verdict, consists of payments, for articles re-
ceived into the service of the United States, with the consent
of the owners, and lost, or destroyed, while in their service.
It appears from the vouchers, that some of the articles in-
cluded in this class, were such as are consumed by use, as
provisions for the troops and forage for horses. If we may
recur to the abstract which has been mentioned, to aid us in
interpreting the law, there does not appear to me to be any
substantial reason for doubting, whether such expenses were

MAINE, 1840. 49

United Statei e. Webster.

or were not intended to be provided for, by the act, and of
course whether Capt. Webster had authority to settle and
pay them, provided, the articles were in fact consumed by the
army, although they may have been irregularly taken. If
goods, which are consumed by use, are loaned in this way,
the contract by which they are transferred is what is techni-
cally called mtituum, or a loan for consumption. It is of the
essence of this contract, that the right of property, in the thing
loaned, shall pass from the lender to the borrower, and he, by
receiving it, becomes bound to return, not the same individ-
ual thing, but one of the same species, equal in amount and
quality, or if he fails to do so, to pay its value. {Poihier^
Pret de Consomption^ No. 4, 13, 39.) The proprietary in-
terest in the thing being transferred to the borrower, if it is
lost, or destroyed, the loss falls on him. Res peril domitio.
With respect to other articles, as horses and wagons for
transportation, and horses and military equipments for the
use of the soldiers, there is, at the first view, upon the gen-
eral principles of the law, more room for doubt If they
were received into the service without being purchased, and
with the consent of the owners, it must have been either by
a gratuitous loan, or by a contract of hiring. In either case,
the limitation of the responsibility of the borrower, or hirer,
is well settled, by the general principles of law. He is not
liable for a loss occasioned by inevitable accident, or in the
language of the common law, by the act of God or the pub-
lic enemy, unless the loss has been preceded by some faul^
on his part, without which it would not or might not have
happened. Story's Bailments^ sect. 240, 408 ; Pothier^ Pret
a Usage, No. 55, 56. The jury have not found, by what ac-
cidents these losses were occasioned, but by recurring to the
vouchers, to which by the agreement reference maybe made,
it appears that many of them were occasioned majore casu^
or by that class of accidents for which the hirer, or borrower,
18 not ordinarily responsible; and as they were avowedly
hired for the use of the army, while actively engaged in

so DISTRICT COOllT,

United Statei v. Webster.

war, it cannot be imputed to the plaintiffs as a fault, that they
were exposed to destruction by the pubHc enemy. In these
cases, the general principles of law place the loss on the own-
ers, and of course the United States would not be liable. If
the decision of the present case turned entirely on gen-
eral principles, the difficulty, which I should feel in this part
of it, would be in applying this rule of the common law to a
loan, made to the public under such circumstances, unless it
appeared by the terms of the contract, that the lender ex-
pressly took the risks of war upon himself. But waiving
this question, by recurring to the abstract, we shall find, that
the settlement, for property received into the public service,
in this way, and lost, fairly comes within the purview of the
act of 1836. In Georgia, for instance, cannon, rifles, mus-
kets, and other articles, were taken from the State arsenal
and furnished to the troops, for which somebody must ac-
count to the State. The payment, for articles thus taken
and lost by the casualties of war, was then one of the
claims which were before Congress when the law was pass-
ed. They were tupplies furnished to the militia and volun-
teers, and, if lost, the indemnity due to the owners was an
expense incurred, which could not be allowed by the ac-
counting officers of the Treasury Department, under the ex-
isting laws; but which, under the pressing exigencies of this
case, no one will deny, ought to be paid by the United States.
It was to meet cases of this kind that the law was made.
My opinion therefore is, that these payments are authorized
by the law, and that the defendant is entitled to the credits
classed under this head.

3. In the third class, are placed special damages done to
a house occupied for quarters, and to grounds occupied by
the troops for an encampment. No claims of this kind were
brought to the view of the legislature, by the document
to which reference has so often been made. They are claims
which arc entirely of a different character from all those enu-
merated in the abstract, and therefore this document furnish-

MAINE, 1840. 51

United States e. Webater.

es no reason for supposing that they were within the contem-
plation of the legislatnre, when the act was passed. It ap-
pears to me, therefore, that the allowance of this credit must
be determined by the general laws and usages of the service.
It is made the duty of the quartermaster to provide quarters
for the anny. He must therefore have the authority to agree
for the rent and other expenses, necessarily arising out of
the execution of his power, and as a disbursing oflScer, to pay
them. This authority seems to be naturally, if not necessa-
rily, incidental to the power of providing quarters, for with-
out it the power cannot be executed. The ordinary deterio-
ration of the property will be taken into consideration, and
provided for by the rent. But extraordinary damage, as the
destruction of the tenement by fire, or other unusual and tm-
anticipated damages, will not be. The^settlement, for dama-
ges of this kind, does not appear to me to be necessarily inci-
dental to the general power of providing quarters. A further
observation may betoade under this head, that the officers
in the purchasing department of the army are presumed to
be selected with a view to their qualifications for this duty.
They may be very competent judges of the value of articles
which they are required to purchase, and wholly incompe-
tent to estimate the necessary cost of repairing special dama-
ges done to the house, or the injury done to a plantation by
cutting down trees, destroying fences, and interrupting the
labors of husbandry. My opinion therefore is, that the de-
fendant, in order to entitle himself to these credits, must show,
that the settlement of such claims is within the ordinary
range of the authority of a quartermaster, under the existing
laws, the army regulations, and the established usages of the
service ; and as no such authority is shown, these credits can-
not be allowed.

4 In the fourth class, the jury have placed articles pur-
chased for the army, and consumed or lost in the service.
Tliere does not appear to be any objection to the allowance
of these credits.

62 DISTRICT COURT,

United SUtei v. Webiter.

5. The only question arising out of the verdict, which re-
mains to be disposed of, is that of the right of the defendant
to charge commissions on his disbursements. The facts found
are, that, during the time when he made these disburse-
ments, he was an officer in the line, and that he received only
the pay and emoluments attached to his rank as an officer
in the line. Whether he performed the duties of quarter,
master in addition, or as a substitute, to his other duties, the
jury do not find, there having been no evidence upon this
point offered on either side.

It is contended that he is not entitled to any such com-
mission, first, because, as an officer under the rules and reg-
ulations of the army, by the conditions of his engagement, he
was liable to be put upon other duties and services, besides
the ordinary duties attached to the office which he held,
whenever required by his superiors: and as the occasional
performance of extra duties was originally contemplated, im-
der the appointment, no extra compensation for them can, up-
on general principles, be claimed for such services. There
appears to me to be more of logical exactness, than of sub-
stantial justice, in this reasoning. It is true that such being
the condition attached to the tenure of his office, if extra
duties are required, he is bound .to perform them, however
onerous, or whatever responsibility they may involve. But
that in point of equity and good conscience, he can claim no
extra compensation for such services, is to my mind by no
means so clear. Nor does the law, in other cases, follow out
the logical consequences of a contract, with so much rigor, at
the expense of general equity and substantial justice. The
mate of a vessel, by the very conditions of his engagement,
is liable to have devolved upon him the duties and responsi-
bilities of a master. This liability is contemplated in his con-
tract. In case of the master's death, during the voyage, or
bis being otherwise incapacitated from performing the dutie®
of his office, the mate succeeds, as heeres necessarius, to his
employment, with all the duties and responsibilities belong-

MAINE, 1840. 63

United Stateg v. Webster.

ing to it Tet it has never been doubted, although the pos-
sibility of all this is contemplated in his original engagement,
that he is entitled to an extra compensation, for these extra
services and responsibilities. Now what is just and equita-
ble in the transaction of business between man and man,
cannot, one would suppose, be considered inequitable or un-
reasonable, ordinarily, between an individual and the public.
The responsibility of disbursing so large a sum of money, in
adjusting and paying a great number of miscellaneous ac-
counts, amidst all the confusion created by a perilous and de-
structive war, is certainly worth something. But I need not
dwell upon this. The present suit shows, that by mere error
of judgment, while acting with the most perfect integrity
and best intentions, he might become involved in pecuniary
difficulties, extremely embarrassing and even ruinous to his
fortunes. My opinion, therefore, would be upon general prin-
ciples, even unsupported by authorities, that the defendant
was entitled to an exti*a compensation, for the responsibility
attendant on this extra duty. And it appears to me that the
reasoning of the Court in the cases of the U. S, vs. McDan-
iely U. S. vs. Fillebrown, and U. S. vs. Ripley^ 7 Peters
Rep. 1, 18, 28, fully authorize this conclusion.

But whatever equitable claim the defendant may have, for
an extra compensation, on general principles, it is said that
every allowance of this kind, whether in the form of extra
pay, or commissions for disbursements, is prohibited by the
act of March 3, 1835. The title of the act is, "Act making
additional appropriations for the Delaware Breakwater, for
certain harbors, and removing obstructions in and at the
month of certain rivers, for the year 1835," ch. 26. At the
end of the act there is this proviso: "That no officer of the
army shall receive any per cent, or additional pay, extra
allowance, or compensation, in any form whatever, on ac-
count of his disbursing any public money, appropriated dur-
ing the present session, for fortifications, executions of sui-

64 DISTRICT COURT,

United Statei v. Webster.

voys, works of internal improvement, building of arsenals,
purchase of public supplies of any description, or for any
other service or duty whatever, unless authorized by law."
It is contended, that this proviso is general in its operation
and applies to all future appropriations for the military ser-
Tice, as well as to those specially enumerated. Now the first
objection, that occurs to this interpretation of the law is,
that this is not the obvious, or natural, nor the grammatical,
meaning of the words. The proviso is, in its terms, restrict-
ed in its operation, to the disbursing of moneys, appropriated
during the then present session of Congress. Nor do I see
how a more extended sense can be given to the law, consist-
ently with the rules of grammar, without cither doing vio-
lence to the meaning of the language, or interpolating, into
the act, words not used by the legislature. And this the
Court has no authority to do, when the language has a plain
and sensible meaning as it stands. In the second plau;e, there
is nothing, in the character of the act, which would lead one
to suppose, that the legislature had any thing in view beyond
the current year. The law is in its nature temporary, mak-
ing provision for the public service for the current year, and
of course spending itself within the year. It is not in such
a law, that we should naturally be led to look, for provisions
of a permanent character.

Another objection is made to the allowance of commissions,
upon which I have found much more difficulty in arriving
to a conclusion satisfactory to my own mind. The general
regulations for the army, prescribed by the War Department,
under the sanction of the President, have been appealed to
by both parties, as having the force of law. It will not be
pretended, that these regulations can control or annul an act
of the legislature, and when it is said that they have the
force of law, nothing more is meant than that they have
that virtue, when they are consistent with the laws establish-
ed by the legislature. It is observed by Mr. Justice McLean,

MAINE, 1840. 65

United States e. Webster.

in delivering the opinion of the Court, in the case of the U. S.
vs. McDanielj that "a practical knowledge of the action
of any one of the great departments of the government
must convince any person, that the head of a department, in
the distribution of its duties and responsibilities, is often com-
pelled to exercise his discretion. He is limited in tlie exer-
cise of his, powers by the law, but it does not follow that be
must show a statutory provision for every thing he does. No
government could be administered on such principles. To
attempt to regulate by law, the minute movements, of every
part of the complicated machinery of government, would
evince a most unpardonable ignorance on the subject. While
the great outline of its movements may be marked out, and
limitations imposed on the exercise of its powers, there are
numberless things which must be done, that can neither be
anticipated nor defined, and which are essential to the proper
action of the government. Hence, of necessity, usages have
been established, in every department of the government,
which have become a kind of common law, and regulate the
rights and duties of those who act within their respective
limits, and no change of those usages can have a retrospoc.
tive eflfect, but must be limited to the future." 7 Peters' $
Rep, 14

These remarks apply, with as much force at least, to the
Department of War, as to any other branch of the adminis-
tion. A moment's reflection will satisfy any one, that it is
quite impossible, that any statute should go into all the detail
of regulation required to maintain the police and discipline
of the army, and still more so, that it should anticipate, and
provide for, all the exigencies demanded for the prompt and
effective action of the military force, amidst the vicissitudes
and casualties occurring to an army, engaged in the active du-
ties of a campaign. A great deal must unavoidably be left
to the judgment and discretion of the officers in command,
and much also to the head of the department who has

66 DISTRICT COORT,

United States *. Webater.

ihe general superintendence of that service. * The great out-
lines, of their powers and duties, may be fixed by law, but?
within these landmarks, there is a wide field of detail and
contingencies, which no human sagacity can foresee, and
which of course cannot be provided for by general laws.
These are necessarily left to the judgment and discretion of
those, who have the immediate superintendence of the ser-
vice, and although no such order can be valid, when it is
repugnant to an act of Congress, a great many orders, in
matters of detail, may be, and are, issued, which are not in-
consistent with the general law, although not expressly au-
thorized by it. Such orders, emanating from a superior, and
especially from the War Department, the subordinate officers
are bound to obey. In this way, customs and usages become
established, which constitute a sort of common law of the
service. The same authority, which establishes the usage,
may change it ; for customary law is abrogated, by the estab-
lishment of a contrary custom. But while it remains un-
changed, it is binding. And such customs and usages, in the
military service, may be proved by the same kind of evidence
as is competent to prove a custom in other cases. But the
highest evidence will be the regulations of the army, printed
and promulgated by the War Department ; for these regula-
tions, if I have a correct view of the subject, are nothing more
than an authoritative digest of these customs.

These usages and customs, the gradual product of time and
circumstances, constitute a sort of complement of the statute
law upon the subject: and they may affect the rights and ob-
ligations of those who are subject to them, in various ways.
They may regulate and define their privileges and immunities,
the nature of the services which may be required of them,
and the kind or amount of extra compensation, to which they
may be entitled, for the performance of services superadded
to the ordinary duties attached to their office. But all this
roust be consistent with the will of the legislature, expressed

MAINE, 1840. 67

United BUtes e. Webster.

in the public laws, and not in opposition to it. Now as to
the right of the defendant to an additional compensation, for
the performance of extra services beyond those ordinarily,
attached to his office, the statute law is silent. No other act
of Congress has been relied upon, except the proviso in the
act of 1835, before mentioned; and this case cannot, in my
opinion, be brought within the provisions of that act, without
the interpolation of words which the legislature have not
seen fit to use ; and this the Court has no authority to do,
when the words, as they stand, have a plain and sensible
meaning. This would be to make, and not to interpret, the
law. •

The title of the defendant to a commission on disbursements,
tben, being neither prohibited nor allowed by any act of the
legislature, depends on general principles, and the custom
and usages of this particular service. By the general prin-
ciples of the common law, he would be entitled to an ex-
tra compensation for this extra service and responsibility.
It would be no valid objection to the claim, that by the condi-
tion of his engagement he was liable to have extra duties
and responsibilities devolved upon him ; because it would be
presumed, that the compensation agreed upon was fixed in
reference solely to such services as were in the direct contem-
plation of the parties, when the engagement was made, and
not with a reference to services which rested only upon re-
mote and uncertain contingencies. But the officers of the
army are all liable to be put upon extra services, not fall-
ing directly in the line of their ordinary routine of duty,
some more and some less onerous, some of greater and some
of less responsibility ; and these requisitions are so common,
that they may reasonably be presumed to come within the
contemplation of the parties when the engagement is made,
not merely as a possible but a probable contingency. A great
variety of cases may therefore be expected to arise, in some
of which it may be reasonable to allow an extra compensa-

68 DISTRICT COURT,

United SUtes v. Webster.

tion, and in others not The executive department of the
government, which has the immediate direction and super-
intendence of this branch of the public service, has the best
means of judging when such an allowance ought, and when
it ought not, to be made. Should the department reject a
claim which is authorized by an act of Congress, there is no
doubt that it ought to be allowed by the Court ; because no
order or requisition, of an executive officer, can annul an act
of the legislature, or defeat a right which has become vested
under a positive law. Or if the department should disallow
a claim which is sanctioned by established usage, such usage
having the power of law, an order of the department cannot
have a retroactive effect to defeat a light already vested. This
appears to me to be the clear doctrine of the cases before re-
ferred to. But when a claim is presented, not sanctioned by
any act of the legislature, nor confirmed by any well known
or established custom, but standing merely upon the gen-
eral principles of equity, the decision of an executive de-
partment, confirmed by the President, if not absolutely con-
clusive, deserves to be very gravely considered, before it is
overruled by the Court. Such is the case with this claim for
commissions. It is admitted that it is not directly authoriz-
ed by any act of Congress, and no evidence has been produ-
ced of a usage to allow commission in such cases. The claim
therefore stands upon its own naked and general equity.

Now there is, in the general regulations of the army pub-
lished in 1835, an article precisely applicable to this case.
It is the 56th article, on the 23d page of the printed volume,
having for its rubrick, Restrictions as to Extra AUowanceSj
and is in these words : " In all cases where an officer of the
army is required, by the direction of the War Department,
to perform duties or to make disbursements, for which com-
pensation is not specially provided by law, and where the
instructions directing such duties to be done, or disburse"
ments to be made, make no provision for additional compen-

MAINE, 1840. 69

United St&tei o. Webster.

sation, no allowance therefor will be made to such officer.
It will then be considered, that in the opinion of the War
Department, the services so required are within the proper
sphere of his duty, as an officer of the army." The date
of the approval of this digest is December 31, 1836, subse-
quent to the time when this claim, or at least the principal
part of it, arose, and cpuld not have the effect of defeating
rights already vested. But this article is a mere transcript
of a general order, bearing the date of May 18th, 1833, and
was therefore in force during the whole period when this ser-
vice was performed. This order is confirmed by another
of March' 14, 1835, which enumerates in detail the cases
in which extra compensation had been formerly allowed,
and which would be disallowed for the future. Among them
are — "Monthly allowance, or per centage, to officers of the
line temporarily performing staff duties — and per centage
to officers for disbursing funds not properly appertaining to
their department" This order is professedly founded upon
a construction of the proviso in the act of 1835, before men-
tioned, and therefore it may be said, that if the Court over-
rules the construction put upon the law by the department,
the order founded upon that act, and professedly intending
to carry it into effect, ought to be overruled also. But the
y order of 183^, was anterior to the act, and therefore could
have no reference to it, and that is equally decisive against
the claim set up in this case ; nor do I see how it can be
overcome but by a direct denial of the authority of the de-
partment to establish any such rule, with respect to extra al-
lowances, by general regulations and orders.

Il appears to me, that it is fairly within the authority of
the War Department, under the sanction of the President,
to establish general rules upon this subject, which, when du-
ly promulgated, will be binding on the rights of the officers.
It is not contended that an order of the executive can ccmtrol
an act of the legislature, or deprive a party of a right ac-

60 DISTRICT COURT,

United SUtes v, Webster.

quired under the law. But, as has been remarked, the le-
gislation of Congress can never go into all the minute de-
tail of regulation, involved in the complicated service of the
army. Much must unavoidably be left to the discretion of
the high officers, who superintend that branch of the public
service ; and as these matters of detail are left to the regula-
tion of the Department, it seems to me reasonable, when offi-
cers are required to perfonn services which do not fall with-
in the range of their ordinary duties, that it is properly with-
in the discretion of the department to determine what, and
whether any, extra compensation should be allowed for such
extra service, taking care that the rule be uniform, and ap-
plying in the same way to all similar cases. An authority
of this kind seems to me to be clearly implied, in the reason-
ing of the Court in the cases which have been before men-
tioned. " The amount of compensation," says Mr. Justice
McLean, "in the military service, may depend in some de-
gree upon the regulations of the War Department ; but such
regulations must be uniform, and applicable to all officers un-
der the same circumstances.'* U, S, vs, Ripley, 7 Peters, 25.
And in still broader terms he says, in the opinion before quo-
ted, ** Hence, of necessity, usages have been established in
every department of the government, which have become a
kind of common law, and regulate the rights and duties of
those who act within respective limits ; and no change of
those usages can have a retrospective effect, but must be lim-
ited to the future." 7 Peters, 15. If usage is to govern, in
what manner does usage become established ? Obviously in
no other way than by the practice of the department. Ap-
ply the remark to the case now in judgment. A usage of al-
lowing extra pay, for extra services of any particular kind, is
established, by its being charged in various instances and al-
lowed and ordered to be paid, by the department It is ob-
vious, therefore, that no usage can be established but by the
concurrence of the department ; for no number of charges,
however numerous, on the part of the officers, can ever con-

MAINE, 1840. 61

The Emblem.

stitute a usage, under which any right can be claimed, unless
they have been allowed. It is the allowance which consti-
tutes the usage. The existence of the usage necessarily im-
plies the right of the department to make the allowance; and
if it have the right to allow, it must have the right to disal-
low. The regulation of 1833 was in force when these dis-
bursements were made ; and it expressly denies any allow-
ance, for disbursements made by an officer, where none is pro-
vided by law, and when the order, directing them to be made,
makes no provision for an additional compensation. This
case falls precisely within the words of the regulation, and
on this ground, my opinion is, that the claim for compensa-
tion cannot be allowed.

The verdict must be made to conform to this opinion.
Prom the gross sum of $4,981 47, are to be deducted the sum
of $325, paid for articles impressed and lost in the service of
the United States, $5,144 15, paid for articles i*eceived into
their service by the consent of the owners, and lost, and
$300 40, for articles purchased, amounting in the whole to
$5,769 55, leaving a balance of $2,711 92.

THE EMBLEM.

In cases of salvage, the Court , has no authority to allow a reward for
saving ]ife. This is a common duty of humanity. But when the sav-
ing of life is connected with the saving of property, the Court may
consider it, in fixing the amount of salvage.

The rights acquired by the salvors are only in rtm^ to be paid by the
property. They have no claim in personam against the owners, if
they choose to abandon the goods.

But if the property is delivered by the salvors to the owners, before a
compensation for saving them is made, the salvors may maintain a libel
in personam for the salvage.

The Court can allow no salvage for saving, firom a wreck, bills of ex-
change or other papers, the evidence of a debti or of title to property.

62 DISTRICT COURT.

The Emblem.

Jtdy •Zrth, 1840. This was a libel for Salvage. It ap-
peared from the evidence, that the Schooner Emblem, of
New Bedford, sailed from Apalachicola, on the 18th of
March, for Havana, with a crew of six hands, and with
five passengers. On her passage she met with unfavorable
weather, but no serious accident befell her until the morning
of the 25th, when she was struck by a squall, about 6 o'-
clock, and upset She lay upon her beams for about eight
hours, when her masts gave way and she righted. For
some time before the disaster, there had been a strong wind.
The waves ran high and continually broke over her, and the
crew and passengers could save themselves, from being wash-
ed over, only by lashing themselves to the wreck. In this
situation she lay from six o'clock in the morning of the 25th,
to the same hour in the morning of the 29th. Duruig the
whole time, the weather was boisterous, and the wave« con-
stantly broke over the wreck and the heads of the persona
on board, so that they were constantly kept wet, lashed to
the wreck to save themselves from being carried away by
the waves, and without food or drink. They were within
sight of land, not from the wreck, but from the mast head
of a ship, and in a place wliere vessels were continual
passing and re-passing. The only one of the persons 8aved,J
who was examined, Mrs, Jiidah, slated that she saw fi
vessels pass them on the first day, and seveu on the g
and was informed, by one of llie crew, that twenty-tl
all, were in sight, at different limes, from the v
they lay in this helpless and distressing situation^
them came so near, tliat the persons on bau
iy and distinctly seen from the v
their relief. In the mean time, i
company, as their strength beeatf
era of natuie failed,
washed into the deep.
Uie eveaiDg aA^ j

were relieved. JMrs. Judah saw ber :..•':■■■.:.■; -;.: .■
cliildreu successively swept from ihe d?:t ■- -Jji -■ -.
the waves, and buried in the ocean. A: .;:- !-::£-
thus tossed upon the sea, for lour lu.l iiT: ;.;■.:■
clock of the morning of the *29th. iher s-j ■- i t^tek :■
down for them. It proved to he t;.e K.":.'.r'.-.i M._-.'
port, George M. Hatch, master, which l.ai >:: li\—-:
day before, on her return to Ponlar.d. H-r .~!i.Tr
brought his vessel near to tlie wreck, and the wave ^ i'.
tinning to rim high, he sent his boat to their roiief s.-.!
from the wreck those whom the waves had spar'.-i •
were now so much enfeebled, by their long sut:-;:.-.;."
be entirely helpless. They were lifted into t:.^ -j -.
lifted out again, by the crew of the salvor ship, i.'.: ■■
so much reduced that he died of exhaustion !;; '.' '. '."
the day. Having taken off the survivors. J.e •.•••i':f^
bis way; but, about two hours after, th': ■»-:.', »,j
and having learnt that there was some proj^ry -j ■
board the wreck, he returned for the piirj-vw - v...-.-.
to save it. After about four or five h'.u."-." 1s.;j-- :■ - -
the Charles Miller succeeded in fishing '.-■ •/. '■.■ •_- -
trunks, one containing theatrical dresyj^. of .;:;;* • aii.
the other, two bags containing about 5'>.' wj.m'. t
and bills of exchange and drafts amouu'.iu" • iLix
dollars. On his arrival at Portland be liieiieL ihe. .-

.^X

64 DISTRICT COURT,

The Emblem.

with any peculiar hazard. But there are other circum-
stances in the case, which will incline the Court to look up-
on it with a more favorable eye. It was connected with the
saving of several lives, which, but for the timely aid of
these salvors, must inevitably have been sacrificed. Now a
Court of Admiralty has no authority to allow a reward
merely for the saving of life. ** That," as is observed by
Lord Stowell, " must be left to the bounty of individuals;
but when it is connected with the preservation of property,
then the Court can take notice of it, and it is always willing
to join that to the animus displayed in the first instance."*
The rate of salvage rests entirely on the discretion of the
Court, but it is a judicial discretion, governed by fixed and
certaip principles. The first principle is, that it shall be lib-
eral, and not confined to a mere quantum meruit for the ser-
vice actually performed, but such as will operate as an in-
ducement, to men of daring and adventurous courage, to en-
gage in these perilous enterprises. It would be surprising,
when Courts are thus liberal in remunerating hardy enter-
prise, displayed in the saving of property, if they were en-
tirely deaf to its merits, where the same dangers are braved
in saving life. But this is a charge which cannot justly be
imputed to Courts of Admiralty. It has been stated by high
authority, that stopping, for the purpose of saving the lives
of shipwrecked persons, is a meritorious duty, and is not
such a deviation as will discharge underwriters.! Now,
though the Court is not authorized to grant a reward direct-
ly, for the discharge of this common duty of humanity, yet
when it has incidentally led to the saving of property, it will
not exclude it wholly from its consideration, in determining
the amount of salvage upon the property.
^: The motive, for the deviation in this case, seems to have
been the saving of life. When the survivors upon the wreck

* The Md, 1 Haggard^ 83. See also The Two Catherines, 2 Mason, 319.
t The Boston, 1 Sumner, 3S8.

MAINE, 1840. 65

The Emblem.

were safely lodged ia the salvors' vessel, she continued on
her course, and it was not until after the wind lulled, and the
danger of entering upon the wreck was diminished, that
Capt. Hatch returned to ascertain what property could be
saved; so that the acquiring any reward for themselves ap-
pears to have been, in the minds of the salvors, an after or
secondary consideration. I am clearly of the opinion, that in
this case, looking at the risk, time, and labor of the service
only, the remuneration ought to be liberal, and that the hu-
manity of the salvors, although it cannot be the object of a
direct reward, in the way of salvage, is not to be forgotten ia
determining the rate of salvage upon the property. Not that
the Court has the authority to take one man*s property and
appropriate it, as a reward for saving another man's life; but
that the general principles of humanity and of enlarged
policy, applicable to these cases, where all, who are interest-
ed in adventures upon the high seas, are liable to become in
turn the salvors and the saved, require that the circumstance
of the preservation of life ought not to be wholly kept out
of sight, in measuring the reward. Sure I am, that no one,
who has once been exposed to the horrors which these persons
suffered, will ever object to the principle.

But, in the present case, there are some circumstances
which, I am free to say, have struck my mind with consider-
able surprise. They are, that this vessel should have lain,
for four days, in one of the most frequented, parts of the
American seas, with vessels continually passing her, some
of them almost within hailing distance, and when they were
in full view of this unhappy company, who were lying thus
lashed and dying upon the wreck, and no one came to their
rehef, until more than half of their number were released
from their sufferings, by death, and consigned to a watery
grave. It is a fact, which would seem to be incredible, if it
did not rest upon indubitable and unsuspected proof If
this fact is to be taken as a just measure of the humanity of
the persons who frequent those seas, I know not but itmay

66 DISTRICT COURT,

The Emblem.

be the part, not only of humanity, but of worldly wisdom, to
let them understand that sometimes even in godliness there
is gain, and to tempt them by the allurements of pecuniary
profit, if they can be led by no other, to acts of humanity
and mercy.

The counsel for the claimants have fairly allowed full
credit to the humanity of Capt. Hatch and his crew, stand-
ing as it does in such striking contrast with that of others in
the neighborhood of those seas. They have not contended
against a reasonable allowance of salvage, upon the particu-
lar circumstances of the case. The principal question,
which has been discussed, is, whether any salvage can, up-
on the principles of law, be allowed upon the bills of ex-
change and drafts, which were saved in the same trunk
which contained the specie. The argument for the claim-
ants is, that a bill of exchange is not property, in any proper
sense of the word, but merely the evidence of a debt, and
that if lost, the debt is not cancelled, but the creditor can
recover it, upon the original consideration for which the bill
was given ; and therefore, if saved from a shipwrecked ves-
sel, it is no more subject to salvage than a deed of real es-
tate, or any other muniment of title, which may be useful
to ^he owners, but is of no value in the hands of any other
person. On the other side it is argued, that although a bill
of exchange is not strictly property, it is a security, and al-
though the loss of the security does not cancel the debt, it
renders the recovery of it difficult, and may, from the ina-
bility of the creditor to procure sufficient proof, render a re-
covery impossible, and thus by the saving of the security,
the salvors have rendered an essential benefit to the owner,
capable of being valued in money. For this benefit, it is
contended, they are entitled to a remuneration. The fact
which gives force to this argument, is, that the whole set of
each of the bills was saved, all being found together in the
trunk of Mr. Leland, the supercargo.

MAINE, 1840. 67

The Emblem.

That the owners of these bills have derived some benefit,
from the rescue of them from destruction, cannot be denied.
It has furnished them with the proof, that no bill, of any of
the sets, is now outstanding in circulation, in the hands of a
bona fide holder, and has thus removed one of the difficul-
ties they would have to encounter, in a suit for the debt, up-
on the original consideration, and if the finding and saving
of property in this way furnished the ground of a personal
action against the owner, quctsi ex contractu, I see no
insuperable obstacle to a decree against the owners of a suit-
able remuneration to the salvors. But, by the common law,
the finder, of property which has been casually lost, has no
legal claim, against the owner, to any thing in the nature of a
reward or compensation for finding. AH that he can pretend
to is the repayment of the actual expenses he has incurred
in preserving it, and upon the pa^^^ment of this, the owner is
entitled to receive his property free from all other charge.*
The finder of a check, or promissory note, or other chose in
action acquires no property in the note, and has no right to
demand the payment of it ; and if a promiser pays it, after
notice that it came into the possession of the holder by find-
ing, he would not be protected against a demand by the own-
er.f And in this rule, the common agrees with the civil law.
The finder, of what belongs to another, acquires no property
in the thing found, unless the owner had renounced his prop-
erty in it, and left it derelict as bona vacantia, but he was
bound to restore it to the owner.J

This is the law, if the thing is lost on the land. But the
maritime law, from considerations of public policy, has estab-
lished a different rule for goods which are lost at sea. A
person who preserves goods which are lost, or in danger of
being lost, by the fortunes of the sea, is entitled to a reward

* Kent's Commentaries, 356.

t McLaaghlin vs. V/tate, 5 Wendell, 404.

I Digest, 6, 1, 67. Pothier, Trait6 de la Propriety, No. 66.

68 DISTRICT COURT,

The Emblem.

for that service. But Avhat is the nature of this right 1 Is it
a personal claim, or right of action, to recover the reward,
against the owner of the thing saved, or is it nierely a right
to proceed against the thing itself, to obtain his satisfaction ?
Thi9 is a material question which arises in the consideration
of this case. That the salvor has a perfect right to proceed
against the goods saved, admits of no doubt. By saving them,
he acquires a sort of proprietary interest in the goods, a jus
in re, and a complete possessory right, against all persons
claiming an interest in them, to retain them until his com-
pensation is paid, or until he can proceed to enforce his right
against therm, by due course of law. And it is the familiar
practice of Courts of Admiralty, in all the maritime Courts of
Europe, to give him a remedy by process in rem. The goods,
upon filing a libel by the salvor, are taken into the custody
of the Court, and ordered to be sold for the payment of the
salvage. The right of dominion, or the absolute property, in
the meantime, remains in the original owner. But he is un-
der no obligation to assert his right, by intervening with a
claim. He may abandon his property if he pleases, and if
he does so, and declines to make himself a party to the suit,
no decree can be made against him. In certain cases, it is
true, Ihe Admiralty has jurisdiction, in cases of salvage, to pro-
ceed in personam. If the owner wishes to receive his goods,
before proceedings at law are instituted, and the salvor de-
livers them to him, a personal libel may be maintained for
the salvage. Such were the cases of the Trelawny and the
Hope.* But this is solely on the ground of his possession of
the property. All the authorities speak of the right of the sal-
vor as attaching to the thing, and not as the foundation of
any personal claim against the owner, independent of the
goods saved. The customs of the sea, as we have them col-
lected in all the old maritime codes, treat the salvor's claim in
the same way, as a right against the property saved, and the

* 3 Robinson, 215, 216. 4 Robinson, 223.

MAINE, 1840. 69

The Emblem.

usual mode, of compensating the service, is by the allowance
of a certain portion of fhe goods saved, or of their value.
The service is no where spoken of, as constituting the ground
of a personal claim against the owners.

Upon these principles, admitting that the salvors have per-
formed a meritorious and valuable service to the owners of
these bills, by rescuing them from destruction, it is difficult
to see in what mode the Court can give them a remedy. It
can only act on the thing, and pronounce the bills subject to
salvage; and it can execute its decree only by an order
of sale. If they are sold, what right would be transferred to
the purchaser ? Could he recover from the persons, whose
names are on the bills, the sums for which they were drawn?
The difficulties, it appears to me, would be insuperable.
Suppose the title deeds of an estate were saved from a
wrecked vessel, it would not be pretended that the possei*-
sion of the deeds carried with it any title to the land, or any
interest in it. Or, suppose the paper saved were a will, and
it were pronounced subject to salvage ; would a sale, under a
decree of a Court of Admiralty, transfer to the purchaser any
interest in the legacies ? Or, if the papers saved were settle-
ments, receipts or acquittances ; these papers might be of great
value to the owner, but would be of no use to any one else.
If any salvage is due on such articles, it can only be recov-
ered in a personal suit against the owners. But the saving
of property, from the perils of the sea, creates no personal
obligation against the owner, independent of his interest in
the property saved.

But it is contended for the libellant, that the papers hav-
ing been saved and brought into Court, the Court may pre-
scribe the terms upon which they may be redelivered to the
owner, and may hold them impounded until the condition be
performed. When goods are brought into the custody of the
law by process in rcf», a claimant cannot, it is true, recover
the possession of them, but by an order of the Court. But
when he is entitled to the possession the Court, is bound to

70 DISTRICT COURT,

The Emblem.

pass the order. The authority of the Court to retain the pos-
session, is founded on that of the libellant, and the founda-
tion of his right is a supposed lien uj^on them, for the pay-
ment of salvage. But if they are not subject to salvage,
then his right fails. The case falls under the rule of the
common law, and the owner is entitled to receive them, upon
the payment of the actual expenses which the finder has in-
curred in preserving them, and it will be the duty of the
Court to order them to be restored to the owner, upon proper
proof of his title.

My opinion is, that nothing can be allowed upon the bills
of exchange and drafts; but I think that there are peculiar
reasons for allowing a liberal salvage on the property saved.
And I allow it the more willingly, as, from the evidence now
before the Court, it appears that the specie belongs to the same
persons, who are entitled to the bills. As the salvors have
performed a meritorious service, in rescuing from destruction
the evidence of property, for which, upon the principles of the
maritime law, no remuneration can be allowed, this fact may
be justly remembered, in the allowance of salvage on those
articles which are legally subject to that burthen. The
whole amount of the property saved will not probably exceed
six hundred dollars. I shall allow three hundred and eighty
dollars for salvage, and charge the expenses upon the residue.
This will be divided in the proportion of two-fifths to the
owners of the salvor ship, and three-fifths to the master and
crew ; to be divided into thirteen shares :

Four shares to Capt Hatch, the master ;

Two shares to Lewis West, the mate ;

One share to James Cole, mariner ;

One share to Charles Dennison, ^'

One share to George Morris, "

One share to Daniel Nash, "

One share to Stephen Chase, "

One share to Wm. Robinson, "

One share to Isaac Johnson, steward.

MAINE, 1840. 71

Davis V. Child et al.

SAMUEL DAVIS vs. GREENWOOD C. CHILD, bt al.

By the general maritime law of Europe, material men have a privileged
lien on a vessel, for repairs and supplies furnished for the vessel. But
by the maritime laws of this country, they have no lien when the re-
pairs are made, and the supplies are furnished, for a vessel in a port of
the State to which she belongs, unless it is allowed by the local law.

Where the repairs are made, or the supplies furnished, for a vessel in a
port of a State to which she does not belong, she is considered a for-
eign vessel, and the rule of the general maritime law prevails.

A person who lends money ta be employed in the repairs of a vessel, or to
furnish her with supplies, has the same privilege against the vessel that
material men have. He is considered as giving credit both to the ship
and to the owners. The ship is hypothecated to him for his security,
and he may maintain in the admiralty, either a libel in rem against the
vessel, or a libel in personam against the owners.

Whether this principle be supposed to have been borrowed from the Ro-
man law, or to have had an independent origin in the coromercia
usages of the middle ages, it appears to be equally unquestionable in
one case as in the other. '

The admiralty has a general jurisdiction to enforce all maritime liena

The admiralty has no direct jurisdiction over trusts, although they may
relate to maritime affiurs ; if the libellant states a trust, as the founda-
tion of his suit, he states himself out of court

Nor has the admiralty any jurisdiction over matters of account, merely as
accounts, although they may arise exclusively out of maritime transac-
tions. It can take cognizance of accounts, only as incidental to other
matters over which it has jurisdiction.

Nor has the admiralty jurisdiction to enforce the specific performance •f
an agreement relating to maritime affidrs.

August 4/A, 1840. The substance of this case as stated
in the libel, is as follows:— On the 29lh of March, 1837,'
Child & Dole, being the owners of the schooner Sultan, let
her on shares to one Prince R Lewis, to be employed in the
eoasting trade. He proceeded in the vessel to the southern
States, and emptojred her until the 13th of October, 1838,
when the owners, having become dissatisfied, em^doyed Ja«

72 DISTRICT COURT,

Davis V. Child| et al.

cob B. Stanwood to proceed to New Orleans, to take posses-
sion of the vessel for them. He went accordingly, and took
the schooner into his possession, and appointed James P.
Coffin, master. On the return of the Sultan from a voyage
to Texas, in February, 1830, she was found to require re-
pairs ; and it was then also ascertained that there were large
sums due for debts alleged to have been contracted on ac-
count of the vessel, by Lewis, the former master.

Lewis had absconded and was not to be found. For the
purpose of settling these accounts, and for raising money to
pay the expenses of these repairs, Sfanwood applied to the
libellant for a loan, who advanced the money for that pur-
pose. Afterwards, on the 22nd of March, the libellant, at
the request of Stanwood, caused process to be sued out
against the vessel for the money he had advanced ; and it
was agreed between them, that, at the sale, she should be pur-
chased by tha libellant, provided that she sold for less than
her value, for the benefit and in trust for the owners. Child
& Dole. The object of the sale was, to free her from the
claims of other creditors. She was sold under an order of
Court, and bought by the libellant, May 24th, 1830, he, by
the agreement with Stanwood, taking the conveyance in his
own name, and to hold the legal title of the vessel, as a secu-
rity for his advance, but in trust for the owners ; and by
the direction of Stanwood, acting as the agent of the owners,
he caused the repairs to be completed, and the vessel to be
fitted for sea. Stanwood left New Orleans before the repairs
were finished, having given directions to the libellant to pro-
cure for her a freight, when repaired, as soon as practicable,
to take the entire management and control of the vessel, and
act for the interest of the owners.

The libellant expended upon the vessel, at New. Orleans,
$2,339 32. He then appointed Thomas F. Hinds, master ;
procured freight, and she sailed for Mobile, June 26th, 1839.
After going to sea she was found to leak, and on her arrival
at Mobile, it was found, from the defective condition of her

MAINE, 1840. 73

Dayis d. Child, et al.

bottom, that further repairs were necessary to render her
seaworthy, and she was further repaired by the direction of
the libellant, acting under the authority derived from Stan-
wood, at the cost of $3,272 89. She then sailed with a freight
for Boston. When she had been out about four days, she
was run into by another vessel, and was obliged to put into
New Orleans for repairs, where she was again repaired un-
der the direction of the libellant, at the expense of $1,418
75. She then sailed for Boston, where she arrived on the
27th of April, her freight amounting to $1,338 56, after de-
ducting her expenses of $502 27, leaving a credit to the own-
ers of $836 29. A bill of particulars, annexed to the libel,
contains a statement of all the moneys expended by the li-
bellant, on account of the vessel, and all he has received for
insurance, average, and freight, leaving a balance now due
him of $4,828 37. The libel concludes with a prayer that
the Court will pronounce for the repayment of the balance of
the sums expended, and that Child & Dole may be required
to accept a reconveyance of the vessel, which the libellant
now tenders.

To this libel, the respondents put in a plea to the jurisdic-
tion. The question of jurisdiction was ably argued.

jPoot, for the libellant, C S. Daoeis, for the respondent.

Ware, District Judge.

Two questions arise upon the pleadings in this case, and
which have been elaborately argued by the counsel. The first
is, whether a person who lends or advances money to be ex-
pended in repairing a vessel, or in furnishing her with sup-
plies necessary for her employment, as provisions for the
crew, can maintain a libel m/»ar^o;^m against the owners
for snch advances, or a libel in rem against the vessel her-
8ei£ The second is, admitting the first question to be decid-
ed in the affirmative, whether the jurisdiction of the Court
can be maintained on the particular facts alleged in this li-
bel

74 DISTRICT COURT,

•" 1 ' ^^-- ■ - - " ■ \ ^ I

Davis «. Child, etal.

The first question does not appear to me to involve any
serious dilSiculty. It is true that no judicial decision was
cited, at the argument, directly in point, and I am not aware
of any reported case, in which the precise question has been
presented for decision. But the jurisdiction of the Court
seems to me to stand on principles too well established to be
brought into doubt.

By the general maritime law of Europe, any person who
furnishes materials or labor for the repair or equipment of a
ship, or supplies her with things necessary for her employ-
ment, as provisions for the crew, acquires by this alone, with-
out any express stipulation for that purpose, a tacit hypoth-
ecation of the ship itself for his security. In this country,
no such implied hypothecation is recognized by the common
or customary law, when the repairs are made, or the supplies
furnished, in a port of the State to which the vessel be-
longs. In some of the States, the local law gives a lien, and
where it does, it may be enforced by the admiralty. Pc-
T(mx V. Howardy 7 Peters, 12, 324. Haider v. a New Brig,
Gilpin, 537. But by the common maritime law of this coun-
try, if the supplies are furnished in the port of a State to
which the vessel does not belong, the privilege is admitted, and
the lien attaches. The Jerusalem^ 2 Gall. 345. The St. Jago
de Cuba, 9 Wheat. 409. The Gen. SmUh, 4 Wheat. 438. The
Aurora, 1 Wheat. 105. The creditor, in such a case, is con-
sidered as giving credit both to the ship and the owners, and
he may proceed in the admiralty against either. But it was
contended, at the argument, that this privilege is confined to
the persons who actually furnish the supplies or make the re-
pairs, called, in the language of the admiralty, material men,
and is not extended to a party who lo^itis money, which is
expended in repairs or in furnishing materials for the vessel.
The ground assumed in the argument is, that such advances
are to be considered as a common loan, not distinguishable
from any other credit arising in the common course of mer-
cantile business, and that the purposes for which the money

MAINE, 1840. 75

Davis V. Child, et al.

^as advunced and to which it was applied, cannot be in-
quired into, to show that the consideration was maritime,
and thus within the cognizance of the Court as a cause of
admiralty and maritime jurisdiction.

The first inquiry that is naturally suggested, as a test of
the jurisdiction, is, whether such a loan is held by the mar-
itime law to be a privileged debt, giving the creditor a lien
on the vessel for his security. If it does, then I hold it to
be clear, that it may be enforced by this Court, for the admi-
ralty has a general jurisdiction to enforce all maritime liens.
The lien which material men have against the ship, for re-
pairs or supplies, has been supposed to be derived from the
Roman law. Abbott on Shipping, ch. 4, ^ 10, p. 102. Now
if this privilege of the creditor be admitted to be a principle
borrowed by the maritime law from that of Rome, there
would seem to be an end of the controversy as to the rights
of the lender, for it is quite clear that in the Roman law he
had this privilege. It was a general principle of the law of
Rome, that any creditor who loaned money to be employed
in preserving, repairing or improving a thing, had a privi-
lege against it for the reimbursement of the loan. Domat.
Lois CivUes, Liv. 3, Tit. 1, <^5, n. 6, 7. The very case, of
repairing a vessel, is put as an illustration of the general
doctrine. Qui in navem exiruendum vel itistruendum ere-
dU vel etiam emendum privilegium fiabet. Dig^ 42, 5, 26
and 34 Dig, 20, 4, 6 and 6. And the privilege, in the
Roman law, extended to a creditor who loaned money for the
purchase of a ship. Indeed, by the text of the law, the priv-
ilege seems to be confined to the lender, and it is only by
analogy that it is M^tended to comprehend the immediate
furnisher of the materials or labor by which the vessel is
repaired. Domat. Liv. 3, Tit. I, $5, n. a And the prin-
ciple was carried further in favor of lenders^ If the master
loaned money of a third person, with which he paid' the
cieditor who loaned directly for the repairs of a. ship, thia

76 DISTRICT COURT,

Davis V. Child, etal.

new creditor was subrogated to the right of the first lender,
and considered as giving credit to the owner. Dig. 14, 1, 1,
§ 11. Domat. Lvo. 3, Tit. 1, ^ 6, n. 6. But by the Roman
law, this was a mere personal privilege, and did not involve
a tacit hypothecation of the thing. It gave to the creditor
a right of preference, jus prmlationis^ a right of prior pay-
ment out of the thing, over the general creditors of the own-
er ; but his right was postponed to all hypothecary creditors.
EmerigoHj Contrate a la Grosser ch. 12, ^ 1. Virmius, Se-
led. Jur. QucBSt. 42, ch. 4. And the privilege of the credit-
or was postponed to that of the fisc. Dig. 42, 2, 34. But
these personal privileges of creditors, independent of hypoth-
ecation, are unknown to the maritime law. In that law,
ev«ry privilege implies a tacit or privileged hypothecation.
JEmerigoiij Contrate a la Chosse, c. 12, sec. 2, ^ 1. Cleira^,
Jurisdiction de la Marine, Art. 13, No. 6.

Whether the rules of the maritime law on this subject
were derived from the Roman law, or what is more proba-
ble, had their origin in the customs and usages of maritime
commerce in the middle ages, there is no doubt, that a per-
son who lends money for the purpose of repairing a vessel,
or of furnishing her with supplies, and which is actually
employed for that purpose, is entitled to the same privilege
against the ship, as one who actually furnishes the supplies,
or performs the labor. The reasons of justice, equity, and
publie policy are the same in the one case as in the other, and
the law makes no distinction between them. It makes no
difference, «ays Emerigon, whether one has furnished the
materials, or loaned the money with which they have been
purchased. Contra^ a la Grosse, ch. 1% ^ 4. A merchant
whose goods aie sold in the course of the voyage, to supply
the necessities of the ship, is entitled to the same privilege,
this being, in fact, a loan to the vessel. We find this priv-
ilege of the lender for the repairs or the necessities of the
vessel, established in the earliest monuments that remain

MAINE, 1849. 77

Davis o. Childf et al.

of the maritime law of the middle ages. In the Ordon-
nance of Peter 4th of Aragon, of 1340, for regulating the
proceedings of the consular or maritime Courts, which
makes the first forty-two chapters of the common editions
of the Consulate of the Sea, it is said, that in the sale of
a new vessel, before she had made a voyage, the laborers
and furnishers of materials shall have the first rank of priv-
ilege, and be preferred to creditors who have loaned money
for the building of a ship, but still recognizing the privilege
of the lender as subordinate to that of the workmen. After
she has made a voyage, the mariners shall hold the first
rank of privilege, and after them come those who have loan-
ed money for the use of the vessel. Ch. 32 and 34, Par-
dessus Lois MtwcUimes, vol. 6, pp, 389, 325. Cleirac mar-
shals the privileges in the same order — that of the mariners
first, and after them, creditors who have lent money to
repahr or to purchase rigging and provisions for the ship ;
and he quotes this Ordonnance from the Consulate as au-
thority. Jurisdiction par la Marine, Art 5, ^15, and Art.
18, $ 4 and 5. The rule established by the French Ordon-
nance of 1621, is, that upon the seizure and sale of a vessel,
the wages of the mariners for the last voyage shall be first
paid, in preference to all other creditors, and after them,
those who have loaned money for the necessities of the ship
during the voyage, and thirdly, those who have loaned mon-
ey for repairs, for provisions, or the equipment of the ship,
before the commencement of the voyage. Liv, 1, Tit. 14,
Art. 16. That is, according to Valin, those who have loaned
on bottomry or otherwise, for the repairs, victualling or equip-
ment of the vessel, and these comprehend carpenters, caulk-
ers, and other workmen who have been employed in the re-
pairs, as well as those who have furnished the materials
used in the repairs, and also the keepers of boarding houses,
who have, by order of the master, boarded the crew while
repairs were being made, (1 Valin, p. 363,) putting the lend-
er in the same class with the furnishers of materials and

78 DISTRICT COURT,

% Dayis v. Child, et al.

Ihe workmen. Boulay Paty, in his commentary on the
Code de Commerce, says, that the privilege exists, as well
in favor of the simple lender, as of him who takes the secu-
rity of a bottomry bond. Cours de Droit Maraiime, THt.
1, $2, Vol. 1, p. 119.

Indeed, it appears to me, that upon the principles ofche
maritime law, it is very clear, that a person who lends mon-
ey to be expended in repairing a vessel, or in furnishing
her with provisions, or fitting her for sea, has the same priv-
ilege against the vessel, which is allowed to material men
who are the actual furnishers, or the mechanics who per-
form the labor. The authorities are entirely conclusive. The
lender is considered as trusting to the ship, as well as the
owners: and by the loan itself, he acquires a privileged hy-
pothecation, which is as sacred in every respect as that which
is created by an instrument of bottomry, except that he is not
entitled to maritime interest. Peckius, Ad Rem NatUicam,
p. 99, and Vinnius's note, Kurike, Qucest, lUust, Qucest, 13.
Voet, ad Pand, 20 and 19. Stypman Jus Maritimum, Pars
4, cap, 5, ^ 146. By the law of this country, the privilege
exists only where the credit is given to a vessel, in a port
out of the State to which she belongs, unless it is allowed by
the local law.

Now, if the law allows to a creditor a lien on the vessel for
his security, the jurisdiction of the admiralty follows of
course. This is the appropriate Court to enforce maritime
liens, and the only Court in which it can be done effectually.
If the admiralty has jurisdiction over the matter in a pro-
ceeding in rem, I do not see on what principle the jusrisdic-
tion in personam can be denied. It is only on the ground
that the contract is maritime, that the Court can issue pro-
cess against the thing. It is the subject matter that deter-
mines whether it is of admiralty and maritime jurisdiction
or not; and if it is so, the Court has jurisdiction as well in
personam as in rem. In this case, the consideration of the
contract is purely maritime.

MAINE, 1840. 79

'Davis V. Child, et al.

If this were the only ground on which the plea could be
supported, I should feel no difficulty in overruling it, and re-
quiring the respondents to answer to the merits. Upon the
principles stated, the jurisdiction would attach for the money
advanced for repairs in the first instance, before the vessel
was sold, and when legal title was in Child & Dole. But
for these advances the vessel was arrested and sold. The
libellant was the purchaser, and took the legal title in his
own name. If the jurisdiction of the Court rested on a lien
alone, it is clear that the libel could not be maintained on
this claim, for by the sale the lien was discharged. But as
the admiralty has jurisdiction in favor of material men in
personam as well as in rem, if the proceeds of the sale
were not sufficient fully to discharge the debt, the libel-
lant's claim may be good against the owners for the bal-
ance, for a decree against the vessel, without satisfaction,
might not discharge the owners from their liability. It does
not, however, appear from any allegation of the libel, but
that the libellant was fully paid for all his advances, made
before the sale of the vessel, by the proceeds of the sale ;
and from the bill of particulars annexed to the libel, it ap-
pears, that, in point of fact, he was. As the libellant, by
the form of his pleading, has made this a part of his libel,
my opinion is, that this part of his claim must be taken as
satisfied.

The only question that remains is, whether the libel can
be maintained on the transactions that took place after the
sale. It is alleged in the libel, that the seizure was made
and the vessel sold under a decree of Court, on proceedings
instituted by the direction of the agent of the owners; and
that by an agreement between the libellant and the agent, he
became the purchaser for the owners, and took the legal
title in his own name, as a security for advances to be made,
but for their use, and to be held for their benefit; and that
all the subsequent expenditures upon and on account of

80 DISTRICT COURT,

Davis V. Child, et al.

f the vessel, were made in pursuance of his orders, and for
the benefit of the original owners. The libellant therefore
states himself to be the trustee of tlie respondents. All the
expenditures were for the vessel while he was the legal
owner.

If the plea is. overrule and the respondents are required
to answer to the merits, the first question presented for
decision, if the fact is denied by the answer, will be, wheth-
er the libellant is trustee or not ; whether he took the legal
title for the benefit of the respondents, or purchased on his
own account Now, let it be admitted, that the subject mat-
ter of the contract set up in the libel — that is, the repairs
made and the supplies furnished — are within the undoubt-
ed jurisdiction of the admiralty, can the Court take cog-
nizance of the case, where, in order to arrive at the mer-
its, it must first decide a question covering the whole case,
which is of the peculiar, and generally the exclusive, ju-
risdiction of another tribunal, and is not within the juris-
diction of this Court ? In other words, can the Court take
jurisdiction of a trui$t ex directo, as constituting the very
foundation of the suit ? It seems to me that it cannot, and
when the libel sets forth a trust, upon which the Court must
pronounce a judgment before it can look at the merits on
which relief is sought, that the libellant states himself out
of Court. Matters of trust, whether in relation to real or
personal property, belong to the peculiar and appropriate ju-
risdiction of Courts of equity, and the modes of proceeding
in equity are particularly adapted to the discovery and en-
forcing of trusts; and though it is true that Courts of com-
mon law do take cognizance of some matters of trust, as in
in the case of bailments, (1 Story^s Equity ^ § 60,) yet the
general rule is, that mere matters of trust are within the ex-
clusive jurisdiction of equity. 2 Story^s Equity, § 960. It
is admitted that the admiralty is competent to pronounce
upon the question of title to vessels, but when this is said,
I apprehend that generally the legal title is intended. It is

MAINE, 1840. 81

Davis V. Child, et al.

not however intended to be denied, but that tliis Court may
take notice of an equitable title when it comes up incidental-
ly, especially when it is alleged in the way of defence, in a
case over which the admiralty has a clear and unquestion-
able jurisdiction. In a suit for possession, it might well de-
cline to interfere in favor of the legal title against one who
had an equitable title, at least until the rights of the parties
had been settled by a competent tribunal. It is admitted al-
so, that when the admiralty has jurisdiction of the principal
matter, it has authority to pronounce on the incidental ques-
tions which may arise in the cause. The Tilion, 5 Mason, 670.
But my difficulty is, that in this case the equitable title does
not arise incidentally, but is alleged in the libel as the
very foundation of the libellant's title to relief. Such a case,
it appears to me, cannot be properly a subject of admiral-
ty jurisdiction. Indeed the libel seems to me to be a Bill
in Equity in disguise.

But the case presents other cbjections to the jurisdiction,
which, if not insuperable, are not easily overcome. The
libellant alleges, that in pursuance of an agreement with
the agent of the owners, he purchased the vessel for them,
and took the title in his own name, to be held for their
benefit; that he expended on the vessel, at different limes,
large sums of money, in repairs and in the purchase of sup-
plies, having the control and management of the vessel,
and receiving for their use her earnings : and the libel con-
cludes with a prayer that the respondent may be required
to receive from him the legal title, and pay him the balance
of his account. The suit, therefore, in one aspect, partakes
of the nature of a bill in equity for a specific performance
of an agreement. It was never contended, that a Court of
admiralty has the authority to decree a specific perform-
ance of an agreement. If the Court, in this case, should
pronounce for the payment of the balance of the account,
it might, perhaps, annex a condition, that the libellant should
reconvey the vessel to the respondent. But a direct suit for

82 DISTRICT COURT,

The Han tress.

the specific performance of an agreement is a thing unheard
of in the admiralty. But allowing this objection may be
avoided, there is more difficulty in overcoming the other.
The libel unavoidably involves the taking of an account,
for it is indispensably necessary, in order to ascertain the
balance. There might be here, in equity, matter for a cross
bill, if the defendants chose to resort to it, in order to ex-
tract the facts directly from the party, though the admiral-
ty might perhaps obtain the same object by an examination
of the party on interrogatories. But the suit itself seems
to be primarily for an account Now the admiralty has no
direct jurisdiction over matters of account, although they
may relate purely to maritime afiairs. The steamboat New
Orleans v. Phebtts, 11 Peters, 175. The simplicity and
directness of its course of proceeding are not supposed to
be adapted to such controversies, and a libel for an account
directly will not lie in the admiralty. The Court takes cog-
nizance of accounts only when they arise incidentally in a
cause, as in a suit on a bottomry bond, or for average.

Libel dismissed.

THE HUNTRESS.

The owners of a Steamboat, employed in carrying passengers and mer-
chandise between port and port, are responsible to shippers of goods,
as common carriers.

Common carriers must, at their peril, deliver goods which they carry, to
the right persons, and if they make a wrong delivery, they will be re-
sponsible for any loss which may be thereby occasioned.

It is the duty of the owner of goods to have then properly marked, and
to present them to the carrier or his servants, to have them entered in
their books ; and if he neglects to do it, and there is a misdelivery and

loss in consequence, without any &u1t of the carrier, he must bear the
loss.

MAINE, 1840/ 83

The HantreM.

Bat the carrier is not discharged from all responsibility as to the deliveiy,
fay such neglect, but if there is a wrong delivery or a loss through any
want of reasonable caution on the part of the carrier or his servants,
he win be responsible.

A contract for the transportation of goods on the high seas, when it be-
comes a subject of litigatiou, is a case of maritime jurisdiction, within
the meaning of that clause of the third article of the Constitution,
which extends the judicial powers to *'all cases of admiralty and mar-
itime jurisdiction."

In that clause, the terms, admiraUy and maritimit^ are not synonymoua
Each has its appropriate use.

In the grant of this jurisdiction, it is to be presumed that the words
are used in the sense which they had in this country at the time when
the Constitution was adopted.

Where, in the Constiuition, technical terms of law or jurisprudence are
used, which are common to our own law and to the law of England,
if there is a diflference of signification in the two countries, the meaning
which they have in our own country is to be preferred.

The jurisdiction of the Admiralty Courts in this country, at the time of
the revolution, and for a century before, was more extensive than that
of the High Court of Admiralty in England.

It is a rule in the interpretation of all contracts and other instruments,
that if there is anything ambiguous in the terms in which they are
expressed, they shall be explained by the common use of those terms
in the country where they were made.

The terms admiraUy and maritime belong to the Law of Nations, as well
as to our own domestic law, especially admiraUy. A Court of Amiral-
ty is a Court of the Law of Nations, and derives, in part, its jurisdic-
tion from that law. The Constitution may therefore refer to the Law
of Nations for the meaning of these terms, as constituting part of our
own law.

One of the rules acted upon by the convention, in the grant of powers
to the National Government, was, to make the judicial coextensive
with the legislative power. The regulation and government of mar-
itime commerce is given to the Legislature, and by taking the word
maritime, in this clause of the Constitution, in its usual and natural
sense, the judicial power is made coextensive with that of the Legisla-
ture.

84 DISTRICT COURT,

The HuntreM.

The eontenfiporaneous construction of this clause in the Constituiion — by
the Federalist — by Congress — by a sories of decisions of the Supreme
Court — and by the uniform practice of all the Courts of the Union,
continued for sixty years, negatives the hypothesis, that the Admiralty
and Maritime jurisdiction, under the Constitution, is identical with that
of the High Court of Admiralty in England ; and consequently nega-
tives the assumption, that we are to lopk for the definition of these
words of our Constitution, to the statute laws of England, as they are
enforced by her Courts.

November 5, 1840. This was a libel in personam against
the owners of the steamboat Huntress, for the loss of a box
of goods shipped by the libellant at Boston, to be delivered
. to him at Portland. The Huntress was regularly employed
in running between Boston and Portland, for the transporta-
tion of passengers and goods. The libellant shipped on board
of her at Boston, on the 30th of June, three boxes to be car-
ried to Portland, and at the same time he took passage in
the boat himself. The boxes all arrived safe, were landed,
and put into the store-house on the wharf Bonney, the li-
bellant, paid the freight, had^them put in a hand-<;art, and
ordered them to be carried to the Elm Tavern. He then
went to the tavern, leaving the porter to follow him with tfie
boxes. After he had left the wharf, one of the boxes was
claimed by a female passenger as part of her baggage. ITie
mate, with one Adams, a passenger who appeared to be
travelling in company with the woman who claimed the
box, came on shore, and Adams pointed out the box, and
they took it from the porter and carried it back on board the
boat On the box being shown to the woman, she pronounc-
ed it to be hers, and said that it contained wearing apparel.
It was delivered to her, without any examination of the con-
tents, and she being bound to Hallowell, it was carried on
board the Thorn, another boat, which took the passengers
of the Huntress which were bound to the Kennebec, and
with her carried to Hallowell. This box, it is alleged, con-
tained thirty bonnets, one hat, and ten pieces of Florence
platt The mate then thinking that there either was some

MAINE, 1840. 85

The Huntress.

mistake or fraud, took the other two boxes and carried them
back to the boat. Bonney, having been informed by the por-
ter that there was some mistake about his goods, returned to
the boat to inquire into the difficulty. After some conversa-
tion with the clerk, the two boxes which remained were re-
stored to him, and the clerk wrote to the agent at Hallowell,
to look after the other box, and Bonney went there in pur-
suit of it When he arrived at Hallowell, the agent sent for
the woman who had taken the box, and she said it was tak-
en by mistake. She went away, and, on being sent for
again, was not to be found, but had left the place, and car-
ried one of the bonnets with her. On inquiry, it was ascer-
tained that she had sold the ten pieces of Florence platt, the
hat, and three bonnets. The price for which one of the bon-
nets was sold, $6,25, was brought to the agent Twenty-
five bonnets remained in the box, most of them in a damag-
ed state. The agent oflTered to return them to Bonney, but
he refused to receive them, unless he was paid for the dam-
age and for the articles missing.

The clerk of the boat, who was examined as a witness,
stated that it was his custom to stand on the wharf to re-
ceive the freight which was offered, and that he entered it
all in a book kept for that purpose, except small packages,
which were carried into the office; that he had no account of
the boxes of Bonney in his book, and had no knowledge of
their being in the boat until after she arrived at Portland. A
notice was posted up in the boat, that no freight would be
received within an hour of the time that the boat is adver-
tised to leave the wharf, and requiring all freight to be intel-
ligibly miarked, or it would not be received ; but the actual
knowledge of this notice was not brought home to the libel-
lant An advertisement was also published in the Portland
papers, but it containea no direction as to receiving, or mark-
ing, goods for freight The clerk stated, that the two boxes
detained had no marks upon them by which they could be
known, but that Bonney pointed out to him his name wik-

86 ^ DISTRICT COURT,

The Hantreis.

ten with a pencil upon them, but that the lines were so faint
and indistinct as to be nearly illegible, and that if he had seen
them in the storehouse in Boston, he should have left them
as unmarked goods. The mate, who delivered the other box
to the female passenger, stated that it had no mark upon it,
and stated the circumstances of the delivery of it to the wo-
man somewhat differently from the libellant's witness. These
differences are noticed in the opinion of the Court.

The case was argued by Fox^ for the libellant, and W. P.
Fessenden, for the respondents.

Ware, District Judge.

Upon the facts proved in this case, the Hbellant claims to
recover of the owners of the boat, the value of the mer-
chandize he has lost, as he alleges, through the carelessness
and misconduct of their agents. There can be no doubt that
the owners of the boat are subject to all the liabilities of
common carriers. It is proved that she was regularly em-
ployed in running between Portland and Boston, for the con-
veyance of passengers and merchandize. A common carrier
is one who makes it a business to transport goods, either by
land or water, for hire, and holds himself ready to carry
them for all persons who apply and pay the hire. 2,
Kent Cormn. 598. 1 Pick, R, 50, Dwight vs. Brewster.
Undertaking, as he does, to carry goods for all persons, he
is considered as engaged in a public employment, and as en-
gaging beforehand to carry goods for a reasonable remuner-
ation for any person who may apply to him and pay the
hire, and he will be liable to an action for refusing, unles*
he has a reasonable cause for his refusal. Story j Bailments^
$ 608. The law. for strong reasons of public policy, holds
him to a very rigorous responsibility. He is answerable not
only for his own acts, but for thoi^ of his agents and ser-
vants. Among the obligations which common carriers take
upon themselves, as resulting from the nature of their em-
ployment, is that of delivering the goods, when they are
transported to the place of destination, to the proper person.

MAINE, 1840. 87

The Htmtren.

If they arc delivered to a wrong person, and any loss or
damage ensues in consequence, they are responsible to the
owner. Golden vs. Mannings 3 Wilson^ 429. Gamett vs.
Willan, 5 Barnwell and Alder, 52. And when the goods are
lost or damaged, the onus probandi is upon the carrier, to
prove that the loss was occasioned by some cause for which
the law will excuse him. Story , Bailments, 529. It is in
evidence, that the box in question belonged to the libellant,
that a part of its contents has been lost, and that the greater
part of what remained has been materially damaged, and
the burthen of showing that the loss and damage occurred
under such circumstances as will exempt the owners from
their responsibility, is thrown upon them.

The counsel for the respondent contends, in the first place,
that the box had been delivered to Bonney, and that they
were therefore discharged from all their liabilities. The
facts, as they are stated by the libellant's witnesses, Watts,
the keeper of the store-house, and Potter, the porter, are,
that the three boxes were landed and put into the respond-
ents' store-house; that Bonney employed a porter to carry
them to the tavern, and had them put in his cart ; that, af-
ter he had left the wharf, a claim being made, by another
passenger, of one of the boxes, the mate came on shore with
Adams, and they took the box, carried it again on board the
boat, and delivered it to the woman who claimed it Now,
if it should be admitted that here was such a delivery as
would discharge the owners from all further responsibility,
had nothing more been done, although the box had not been
actually removed from their store-house, it is quite as clear
from this evidence that the delivery was revoked, not mere-
ly as to the box in question, but as to all of them. It is
quite impossible to put any other construction upon the act
of a mate, in taking all the boxes and replacing them on
board the boat, after Bonney had left the wharf, than that it
was a revocation of the delivery. The goods were again in

88 DISTRICT COURT,

The Huntreai.

the possession of the respondents, by the act of their ser-
vants, and all their responsibihties as common carriers re-at-
tached. It was contended at the argument, that the goods
having been once dehvered, the retaking of them was the
private and unauthorized act of the mate, for which the
owners are not accountable ; and if there is any responsibil-
•ity, it is only the private and personal responsibility of the
mate, or of the mate and Adams. But the mate did not in-
terfere in the business as a stranger ; he interposed in his
quality, and with the authority of mate, and as a servant of
the owners, having a right to retain the goods. It is the ap-
propriate duty of the mate to superintend the loading and
unloading of the goods taken on freight. It is true, that if
a dispute arises between different persons claiming the same
goods, the proper person to decide this dispute is the clerk,
because he takes the account of the goods. But if the mate
volunteers to decide the dispute, and delivers them to a
wrong person, the most that can be said is, that he is acting
beyond the line of his proper duty, and may be answerable
to his employers ; but they are responsible to the owner, for
they are as much responsible for the acts of their servants
as for their own.

The mate, in his deposition, gives a different account of
the affair. He says that Adams informed him that a man
had taken a wrong. box on shore, and he then went ashore,
and took and carried it on board the Thorn. Afterwards, he
adds, that upon reflection he is satisfied, that Adams went
ashore and took the box on board the Thorn, before speak-
ing to him; that he then went on board the Thorn, examin-
ed the box and found no mark upon it; that he asked the
woman if it was hers, to which she replied that it was, and
had wearing apparel in it. Without opening the box to ver-
ify her statement, he allowed her, upon her word alone, to
retain the box, and she carried it with her to Hallowell.
Now, in the first place, the testimony of the mate is objected
to, as that of an interested witness. He, with Adams, hav-

MAINE, 18M. 89

The HontreM.

iDg taken the box from the porter and delivered it to a wrong
person, without consulting and taking the direction of the
clerk, it is argued, is answerable over to his employers for
any damage which may be recovered against them, and has
therefore a direct interest to prevent a recovery. And if it
be conceded that he exculpates himself by his own state-
ment, that is overcome by the plain, direct, and positive tes-
timony of two disinterested witnesses, by whom he is flatly
contradicted. My opinion, upon the facts which have been
proved^ is, that if there had been a delivery, it was revoked
by thejsame authority by which it was made, and that the
respondents are not for that cause exonerated from their re-
sponsibilities as common carriers.

In the second place, it was contended at the argument,
that the owners of the boat are not responsible, because no
contract of afireightment for the carriage of the goods inter-
vened between the parties, but that they were surreptitiously
put on board by the libellant, or by his procurement, without
the knowledge of the clerk of the boat, and without being
properly marked so that it could be known to whom they
belonged.

No evidence was offered to show by whom or by what
means the goods were brought on board. They were not
brought to the notice of the clerk, and were not entered on
the freight list. The contract of affreightment, or that for
the transportation of goods by a common carrier, like all
other contracts, requires for its completion the consent of
parties, either express or implied. If goods, says Pothier,
are put on board a vessel without the knowledge of the mas-
ter, there is no contract, and consequently no obligation on
aae part or the other; and therefore the master, who finds the
merchandise in his vessel, may put it ashore, and charge the
expense of unlading to the owner. The French legislation
has provided for this case by a special article. The master
may discharge the goods found on board his vessel, without
being made known to him, or he may carry them, and charge

90 DISTRICT COURT,

Tb* Uuntieis.

the highest freight paid for merchandise of the same quaUty.
Ordonnance de la Marine^ Liv. 3, Tit. 3, Art, 7. Valin and
Pothier teach us that, if he does not discover them until after
he sails, provided the vessel is overloaded, he may dischai^
them, at an intermediate port, before the end of the voyage,
leaving them in the hands of some solvent merchant, and
giving the owner notice ; but if the vessel is not overcharged,
he ought to carry them to the port of destination. 1 VcUm,
647. Pothier, Traiie de C&nirat de Charter Partie, No. 10,
12. This obligation Hoes not arise from the contract of the
parties, because no contract has intervened, but results from
the principles of natural law, the great law of social charity,
which commands us on all occasions to promote the well be-
ing of others, when it can be done without a sacrifice for
ourselves, and not to do an act, though permitted by the
positive law, which will be materially injurious to another,
without any corresponding benefit to ourselves. The Code
de Commerce adopts the morality of Pothier, and confines
the right of the master to discharge the goods at the port
where they are laden. No, 292, Boiday Paty, Droit Mar-
aHme, Vol, 2, p, 373, TU, 2, Sect, 5.

If these principles ought to govern in the case of a com-
mon freighting vessel, and they are recommended as well by
public convenience as by their pure and honorable morality,
they apply with much greater force to cases like the present.
The boat was, in the strictest sense of the word, a common
carrier, making her trips daily between Portland and Boston.
fler goods on freight were owned by a great variety of per-
sons, were brought in small quantities, loaded in a hurry,
ordinarily without the formality of a bill of lading, and of-
ten, as in this case, accompanied by their owners. The
owners of the boat, by the nature of their employment, en-
gaged, and were bound to take the goods of all persons who
offered them, without any special contract for that purpose.
Hdding themselves out generally, as ready to carry freight
or passengers, the public have a right to take them at their

MAINE, 1840. 91

The Huntren.

offer, and they are not at liberty to refuse, without good
cause ] and those who wish for a passage, or have goods to
be transported, need not take the trouble to make a con-
tract beforehand. They understand that the master is bound
to allow them a passage, and to carry their merchandise, un-
less he has some valid excuse, and they go down to the boat
prepared to go on board and take their goods with them.
Now it appears to me, that if the goods are put on board in
the ordinary manner, a contract results from the fact itself.
In the present case, the owners of the boat held themselves
out as ready to carry freight for all persons generally, and if
the libellant had his goods carried to the wharf, and they
were taken on board in the usual course of the business, as
other goods were, he accepted their offer, and it appears to
me that the contract was complete ; but if it was not, it was
ratified and made perfect by the payment and acceptance of
the freight. This was the decision of the Roman law.
Whether the goods, says Ulpian, are shipped by a bill of
lading or not, (for this seems to be the meaning of eictssig-
naUBj translated into modern nautical phraseology,) the con-
tract is complete by the simple fact that they are laden on
board; the carrier becomes responsible for their safety."*^

It is true, that if goods are furtively put on board by the
owner, and there is an apparent desire to conceal them, a
presumption would naturally arise, that the owner intended
to defraud the carrier of his compensation for his services.
Such conduct might rebut the presumption of an implied
contract, and a question might be made whether the accept-
ance of the freight was a waiver of the wrong, so as to sub-
ject the carrier to all the responsibilities which would result
from a contract. But that question does not arise in this
case, because there is no evidence tending to create any sus-

pcioo of that kind, against the libellant. Regularly, with-

* Reeipit antem ■alTom fore, atram li in navem res mium ei asiigiiata
foat, an etei nom aint aaaifiiats, hoc tamen ipao qaod in navem vamm snnt
nmfUm videBlttr. Dig. 4, 9, 1, § 8.

92 DISTRICT COURT.

The Han treat.

out doubt, the clerk of the boat ought to be notified, and, for
his own security, the shipper ought to see that his goods are
entered on the freight list. But in the hurry and confusion
in which the business is often done, it would be a harsh pre-
sumption to assume that fraud was intended from this neg-
lect alone. It is certain, also, that the goods ought to be
plainlv and legibly marked, so that the owner or consignee
may be easily known ; and if, in consequence of omitting to
do it, without any fault on the part of the carrier, the owner
sustains a loss, or any inconvenience, he must impute this to
his own fault. It is certain, that the box had not such plaiU)
intelligible marks upon it, as would readily point out the
owner. He probably thought, as he was in company with
his goods, that this was of less importance. But it was a
fault on his part, and the natural and necessary consequence
of that fault he must bear. But his fault will not excuse
the fault of the carriers or their servants. They are not lib-
erated from all care and responsibility, because the shipper
has not placed proper marks on his goods. Bonney took,
and paid the freight of, the three boxes. They were land-
ed, and he had them delivered to a porter, and ordered them
to be carried to his lodgings. Here was abundant proof
that^ he claimed them. But now, after Bonney had left
the wharf, in the confidence that his goods would follow
llim, comes forward another claimant. She gave no better
proof of title than Bonney. If the box was not marked
for him, neither was it for her. Yet without any exam-
ination, without even taking the trouble to open the box,
and see whether it eontained, as the woman alleged, her
wearing apparel, and in the absence of Bonney, who had
paid the freight to the mate himself, it was delivered over
to her. No one can hesitate to say, upon the simple state-
ment of the facts, that there was, in this, undue precipi-
tancy and a want of due caution on the part of the mate.
Nor will any man of ordinary prudence and caution, pre-
lend, that this is the way in which, opposing claims to

MAINE, 18M. 93

The Huntress.

property ought to be settled. The woman passenger had
declared what the box contained, if it belonged to her. If
Bonney had been sent for, and the question had been asked
him, the adverse claims would have been satisfactorily settled
on^'the spot. The delivery to one of the claimants, in the
absence of the other, without any further inquiry, was a
gross fault on the part of the mate, and as the owners of
the boat are responsible for the acts of their servants, it is
imputable to them. My opinion, therefore, is, that the
owners are liable. And as the respondents refused to make
him any compensation for the loss and damage of his
goods, he was justified in leaving them upon their hands,
and looking to them for their value.

Decree for Libellani.

Nate. — In this case the question of jurisdiction was not
raised by the counsel, nor adverted to by the Court. The com-
petency of the Court to pass upon such questions, had been,
in this District, maintained in several cases in which the
same general question was involved. Here it had been sup-
posed, that a contract for the transportation of goods on the sea
was clearly within the jurisdiction of the Court, as a maritime
•contract If in the clause in the Constitution, repeated in the
judiciary act, '^ all causes of admiralty and maritime jurisdic-
tion/' the word maritime has any meaning, and was not
used merely for the purpose of rounding the phrase, it must
include such a contract ; and we are not gratuitously to sup-
pose that words, in the Constitution, were used withoutmean-
ing. Besides, the service of the seamen is not denied by any
to be a maritime service, and as such a proper subject of
marrtime jurisdiction. This service consists in the transpor-
tation of the goods. The ship-owner, as a carrier, performs
it by his servants, the master and ship's company. To ad-
mit the jurisdiction in one case, and deny it in the other, is to
affirm of the same service, that it is and that it is not mari-

94 DISTRICT COURT,

The HuntreM.

time, or else to affirm that the term maritime, as used in the
Constitution, is an unmeaning expletive, a supposition so
preposterous, not to say indecent to the memory of the il-
lustrious statesmen who framed that instrument, that it is
not to be for a moment entertained. "*

But in the recent case of The New Jersey Steam Navi-
gation Company v. The Merchants^ Bank, 6 Howard^ 344,
agreeing precisely in its principal features with this case, the
question whether the Court had jurisdiction over the cause, as
one arising on contract or growing out of a maritime service,
was raised by counsel, and argued at great length. The li-
bel was sustained, and the jurisdiction of the Court vindica-
ted in a very able opinion of Mr. Justice Nelson, on the ground
that the contract and the service were maritime, and his opin-
ion had the concurrence of three of the other judges, includ-
ing the Chief Justice. Two of the judges concurred in the
judgment on the ground of tort, and one denied the juris-
diction altogether. The authority of the Court to take ju-
risdiction in these cases being brought into such grave doubt,
it seems not inappropriate to add, as a sequel to the opinion
on the merits of this case,. a few observations on this subject.
If they have no other value, they will serve to show that the
jurisdiction, over such cases, has not been taken by the Court ^
without some consideration and reflection on the subject.

* If the word m&ritime is merely exegetical of admil'altjr, one word in-
clude! the other, and they may be used interchangeably. Admiralty is mar-
itime jurisdiction, and maritime is admiralty jurisdiction, without limitation
or exception. But it is well known that the admiralty jurisdiction is two-
fold, a prize jurisdiction exercised jure M/t, extending to all captures in
war, as prize, whether on sea or on land } and a civil jurisdiction over caus-
es civil and maritime, springing from a consideration purely maritime. They
are so distinct that it has been doubted, in England, whether the judge of
the Admiralty Court can exercise both jurisdictions under one commission.
JBroiofi, Civil and Admiralty Law, vol. 2, ch. 1, p. 29. Chapt, 6, p. 208, 4*^
Umdo V. Rodney, Doug. 613. The addition of the word maritime, in the
Constitution, closes the door against all doubt or cavil whether both branch-
es of the jurisdiction are granted. See 2 Brown, 210.

MAINE, 1840. 96

The HnntreM.

Id these, and in analogous cases, the only question that can
be considered as an open one is, whether they come within
that clause of the Constitution which says, the judicial power
of the United States shall extend to ''all causes of admiralty
and maritime jurisdiction." If they do, then the original
cognizance of them is, by the ninth section of the judiciary
act, given to the District Court. The question then carries
us back to the Constitution ; and if we are to apply, to the
interpretation of that, the same rules and principles which
Courts apply to the interpretation of all other instruments, it
is difficult to conceive where the most subtle ingenuity will
find a loop to hang a doubt on. No Court ever pretended to
an authority to strike from a solemn instrument any word
that had a plain and sensible meaning in the place where it
was found, unless it was repugnant to the tenor of the whole
instrument, or plainly and irreconcilably contradictory to
some other part of it. Huch a decision can stand on no oth-
er grounds than the Hoc voh, sic jvbeo. It must then be
conceded, unless this can be made apparent, that the word
maritime stands part of the Constitution, either as a signifi-
cant word, or an unmeaning pleonasm.

I do not now recollect, that it ever has been seriously con-
tended, that such causes can be excluded from the jurisdic-
tion of the Courts of the United States, by any interpretation
of the words of the Constitution, taken by themselves. The
argument, that this clause is controlled by the seventh amend-
ment, which secures the right of trial by jury in all suits at
common law, where the value in controversy exceeds twenty
dollars, has no application to the Constitutional grant;
because these are not suits at common law ; and further, be-
cause Congress may provide for the intervention of a jury,
on the trial of a cause on libel and answer, as well as in a
suit according to the forms of the common law. And if the
objection has any weight, it applies, with precisely the same
force, against the jurisdiction in all cases in Equity. Ac-

96 DISTRICT COURT,

The Huntress.

■ ■ ■ ■■ ■ ■ ■ ■^^■^^— ■■ I ■■■■■■■ ■,■■»»■■ m^^^^ I — ■ ■ ■ I ■ M ^— ^^^-^^■P—

cordingly we find that those who deny the jurisdiction, drop
all the ordinary rules of interpretation of written instruments,
and resort to matter dehors the Constitution, to determine
the meaning of this clause. It is contended, that we are not
to take the plain and obvious meaning of the words, nor to
interpret them by reference to other parts of the same instru-
ment, but that their meaning is to be ascertained by a refer-
ence to the usages, jurisprudence and laws of England, usages
that never prevailed, and laws that were never in force here.*

* For more than a century before the formation of the Com titution, that
is, from the early part of the reign of Charles II., revenue causes had been
heard and tried in the Colonies by Courts of Vice Admiralty. How eitensire'
ly the jurisdiction was, in practice, exercised by the Courts, as instance
Courts, cannot probably now be ascertained with certainty. The commis-
sions of the judgres prove, that the restraining statutes of Richard II., ac-
cording to the construction given to them by the common law judges in
England, were not in force in the Colonies. The following is a copy of one
of these commissions to an admiralty judge of the Colony of New Hamp-
ilure, as quoted by Judge Story, 2 OaUisvn Rep., 470. It authoriaes him
** to take cognizance of, and proceed in, ail causes civil and maritime, and in
complaints, contracts, offences or suspected offences, crimes, pleas, debts,
exchanges, aricounts, charter parties, agreements, suits, trespasses, enqui-
ries, extortions, and demands, and business civil and maritime whatsoever,
commenced or to be commenced between merchants, or between owners and
proprietors of ships and other vessels, and merchants or others whomsoever
with such owners and proprietors of ships and all other vessels whatsoever
ismployed or used within the maritime jurisdiction of our vice admiralty of
our said province, drc, or between any other persons whomsoever had,
made, begun or contracted, for any matter, thing, cause or business whatso*
CTer done, or to be done, within our maritime jurisdiction aforesaid, &«.,d&c.;
and moreover in all and singular complaints, contracts, agreements, causes
and businesses, civil and maritime, to be performed beyond the sea or con-
tracted there, however arising or happening,'* with many other general pow-
ers. And it declares the jurisdiction to extend " throughout all and every
the sea shores, public streams, ports, fresh waters, rivers, creeks, and arms,
as well of the sea, as of the rivers and coasts whatsoever of our said prov-
ince," &c.

In Stokes's History of the Colonies, Judge Story observes, there is acom-
ainion similar in its main clauses, which Mr. Stokes says was the usual
form of the commissions of the Colonial Admiralty Judges. Slory an the
Canst.^ § 1659, JfoU 1.

MAINE, 1640. 97

The HuntreM.

In a word, that the framers of the Constitution meant, by the
words " all causes of admiralty and maritime jurisdiction,"
precisely that jurisdiction that was exercised by the High
Court of Admiralty in England.

In our jurisprudence, these terms, certainly the former^
admiralty, had always borne a diflFerent and a larger signifi-
cation than that which they had in the jurisprudence of
England. The jurisdiction was here more extensive. Not to
rely on any debateable point, it is certain that it included rev-
enue seizures on navigable waters, which were never within
that of the High Court of Admiralty, but belonged exclu-
sively to the Court of Exchequer. Now the assumption is,
and it is made without a tittle of proof, unless general argu-
ment is to be taken as proof, that the framers of the Consti-
tution, silently, and without the slightest notice, referred, for
the sense of these words, not to the meaning which they had
in our jurisprudence, but to that which they bore in the ju-
risprudence and laws of England. If the fact be so, we will
venture to affirm that it is a fact unique in the history of the
world. It may safely be said, fhat no man, and no other
body of men, engaged in framing an organic law for the gov-
ernment of a great nation, ever, silently and without notice
of any such intention, referred, for the sense and meaning of
any of their words, to the signification which they had in
laws and jurisprudence of a foreign nation, especially if these
words had a well known meaning in their own country.

Th€ juritdiotion exerciged in fact, probably varied in different Colonies,
and in the same Colony under different judges. That conferred by the com-
mission extends to all that was ever claimed by the admiralty^ and the best
evidence of the rightful jurisdiction of the Court undoubtedly is, the com-
mission of the judge.

Stokes was Chief Justice of the Royal Province of Georgia. His work
"On the Constitution of the British Colonies/' is referred to and quoted
more at large by Mr. Justice Wayne, in his very learned and able opinion in
the case of Waring v. Clarke, 5 How. 454. Stokes says that all the com-
missions were alike, and Judge Wayne adds, that ** the King's authority to
grant these commissions never has been, and cannot be denied.'*

98 DISTRICT COURT,

The Huntreis.

We may here be met by an argument, that the Constitution
does, in fact, refer to the common law for the definition of
words, by the use of technical terms of that law, as habeas
corpus^ trial by jury ^ &c., without proceeding to define them.
But these words were just as familiar in our law, as in that
of England. And if, by supposition, there had been any dif-
ference in the sense in which they were used in the English
statutes and common law, and that in which they were gen-
erally used and understood in this country, can there be a
doubt which sense is adopted by the Constitution ? The com-
mon law, and of course the sense in which the technical
words of that law are used, was never in force in this coun-
try, any further than as it was adopted by common consent,
or by the Colonial legislatures. Beyond this, it was as much a
foreign law as that of France or Holland ; and for the defi-
nition of any technical terms of general law or jurisprudence
we may, with just as much propriety, refer to the laws of any
other foreign country as to those of England, except so far
as the law of England has been adopted and incorporated
into our own laws and jurisprudence. And where the same
words have a different import in the two countries, that
which prevails in our own is most certainly to be prefer-
red.

It is again said, that the extension of the jurisdiction of the
Vice Admiralty Courts, in the Colonies, to revenue causes,
was one of the grievances of which they complained, and
which, with others, led to the revolution. From this fact it
is argued, that it is to be presumed, that in defining this ju-
risdiction, the framers of the Constitution would adopt that
limited jurisdiction which was sought and claimed from the
mother country. The answer is, that if the convention had
intended to do it, they would have taken care so to express
themselves as to leave the subject free from doubt. So far from
doing this, they have in the grant of this jurisdiction employ-
ed terms that in their ordinary and natural import clearly
negative the supposition that the restricted jurisdiction of the

MAINE, 1840. 99

The HontreM.

High Court of Admiralty was intended. The fact, of the al-
leged grievance and of the complaint, is admitted, but the ar-
gument draws the wrong inference. On every principle of
sound reasoning, the precisely opposite inference is the just
one. The whole matter of tlie controversy and complaint
were fresh in the minds of the convention. They perfectly
well knew the enlarged and restricted jurisdiction of the ad-
miralty, and they seem studiously, by adding the word mar-
itime, to have chosen words that gave the larger instead of
such as would give the narrow jurisdiction. Notwithstanding
the admitted fact, that the admiralty jurisdiction had been
viewed with jealousy and distrust while we were Colonies, it
does not follow that either the convention or the people would
have any hostility to it under the new government. It was
probably supposed, that the revenue laws would be more
steadily and systematically enforced by the Courts than by
juries, and this is precisely what would be desired by
both the people and the government, by all except the broth-
erhood of smugglers."^

While the Colonial state remained, the people would natu-
rally feel an objection to leave the decision of revenue causes
to the Court instead of the jury. The judges were strangers,
and sent from abroad. They brought with them all the pre-
judices and partialities of Englishmerr; in favor of their own
country and people, and to this was added the bias, which the
ofGicers of the Crown are always supposed to have, in favor
of its prerogatives. Such officers were naturally viewed with
jealousy and distrust. But under the Constitution, a new
order of things arose. The judges were our neighbors and
kinsmen, and responsible to our own government. And the
people might be willing to trust a larger measure of power

* Thig if Uie reason griyen by Judge Chase, why reTenue seizures were,
by Uie act of Congress, put on Uie admiralty side of the Court. 4 CrimcA,
446.

100 DISTRICT COURT,

The Huntress.

to these than they would willingly see exercised by strangers
and foreigners. There was no longer any foundation for the
jealousy, and it no longer existed.

We have said, that to ascertain the sense in which words
are used in the Constitution, we are to look to the meaning
which they had in our own country, and for the meaning of
the technical language of jurisprudence, we are to look to the
laws and jurisprudence of our own country, if the words there
had acquired a plain and positive meaning. ""^ This, perhaps,
may require some explanation. The terms, admiralty and
maritime, belong to the law of nations, as well as to our own
domestic and municipal law. This is peculiarly true, of the
former, admiralty. A Court of Admiralty is a Court oi
the law of nations, and in one branch of its jurisdiction, that
of prize, both the law and jurisdiction are derived solely from
the law of nations, and on the instance side of the Court, in
many cases, as when the controversy is between parties of
different nations, its rule of decision, whether relating to the
law of the case or the jurisdiction of the Court, is not always
to be taken from the municipal law of either of the parties,
but from that general maritime law which governs all on the
common highway of nations. It has therefore been suppos-
ed by some jurists of great eminence, that, for defining the ju-
risdiction of the Court, that is, for determining the meaning
of this clause of the Constitution, we are not to look to the
jurisprudence of any one people in particular, but to that
common and universal law that is acknowledged by all Chris-

* It is a uaiversal rule dictated bj common sense, for the interpretation
of contracts, and equally applicable to all instruments, that if there is any-
thing ambiguous in the terms in which they are expressed, they shall he ex-
plained by the common use of those terms in the country where they are
made. Potkiwr^ Obligations, Jfo. 94. Domat. I.,e8 Lois Civiles, Iav. 1, sset.
3| JVb. 11. Semper in stiptdationibus et ceteris conlractibus id sequimur fuod
oetwn est, aut si non pareat quid actum est, erit consequens, ut id sequimur
quod in rtgiont in qua actum est frequentatur. Dig. 50, 17, 34.

MAINE, 1840. 101

The Hantresfl.

tian and maritime nations.* But, perhaps, in the rule which
is stated above, I differ rather in the formula in which it is
expre^ssed than in the substance of the rule itself. The law
of nations is not the exclusive law of any particular people.
It is the common property and common law of all, and as
such, is part and parcel of our own law. If, then, we recur
to this general law for the definition of these terms, in one
sense we are not going beyond our own law. Now, in this
common law of the sea, we find these words, as understood
by every people in the commonwealth of commercial and
maritime nations, with the exception of England, to have a
more comprehensive sense than that which confines them to
the jurisdiction exercised by the High Court of Admiralty.

-Mil, - - ^ - ■ ■■ ^

* This was the opinion of Judge Story. De Lovio ▼. BoU^ 2 Gall. Rep.

In the ease of Davis et al, ▼. The Brig Seneca^ JImeriean Jurist, vol. 12, p.
489, decided in 1829, Judge Washington says, <*As preliminary to the inves.
tigmtion of this question, I not only admit but insist,

" First, that the judicial power of the United States under the Constitu-
tion, and the jurisdiction of the District Courts under the 9th section of the
judiciary act of 1789, embrace all cases of a maritime nature, whether they
be particularly of admiralty cognisance or not.

** Second, that this jurisdiction, and the law regulating its exercise, are to
be sought for in the general maritime law of nations, and are not confined to
that of England, or of any other particular maritime nation."

It is supposed that the late Chief Justice Marshall fully concurred with
Judges Washington and Story on this subject.

The jurisdiction of the admiralty in England, before the statutes of Rich-
trd II. and Henry IV., and the construction put upon them by the common
law Courts, it is admitted, was as large as that of Courts of Admiralty in
other maritime nations of Europe. It is certain that these laws did not orig-
inally extend to the Colonies, because the Colonies were not then in exist-
ence. If they were ever in force here they must have been subsequently
adopted. But the commissions, fVom the Crown to the Vice Admiralty judg-
es, show most condusiTely that they never were adopted. These confer all
that general jurisdiction over maritime causes, that was anciently exercised
by the Admiralty Court of England, and has always been by the Admiralty
and Maritime Courts of every other country of Europe. If these laws, wjllih
their constniction, were in force in this country, then all these commipnqni
were illegal, because a commission fW>m the Crown could not abrogate an

102 DISTRICT COURT,

The HantreM.

If no valid reason for limiting the admiralty and maritime
jurisdiction of the Courts of the United States, by applying
to the interpretation of these words the laws of England, is
found in the language of the Constitution granting it, as lit-
tle will be found, when we turn our attention either to the
general tetior of that instrument, or to other special powers
granted by it. In the Federalist, universally admitted to be
the best commentary on the Constitution that has yet appear-
ed, written principally by two of the members of the con-
vention, who had more agency in giving to it its substance
and form than any others, it is said, " If there are any such
things as political axioms, the propriety of the judicial pow-
er of a government being coextensive with its legislative,
may be ranked among the number." No, 80. It appears to
me, that nothing can be more certain than that this axiom
was steadily kept in view by the convention. Now, the
power of regulating, that is, the general control over, com-
merce with foreign nations, and between the States, is
granted, by another article of the Constitution, to the legis-
lative department. This covers the whole maritime com-
merce of the country. The grant to the judicial depart-
ment, of the cognizance of all causes of maritime jurisdic-
tion, makes the judicial coextensive with the legislative pow-
er. This is the only way in which we could be assured of

act of Parliament. But it was never pretended that these commissions were
iUegal. It follows therefore, whether we refer for the meaning of these
terms to the general maritime law of nations, or to the well known and well
established laws of oar own country, that we are brought to the same con-
clusion. For the jurisdiction of the admiralty in this country, prior to the
adoption of the Constitution, I would refer to the opinion of Judge Wayne,
in the case of Waring ▼. Clarke^ 5 Howard Rep. 454, 458. In that rery
learned and able opinion it is conelusiTely shown, that the admiralty jorisdie-
tion of England was not that exercised and acknowledged in this eoontcy.
It was here larger, and, by the commission of the judges, as ample as it an-
ciently was in England. From the want of reports, it is impossible to say
how extensively the jurisdiction was ordinarily exercised, bat it was certain-
ly, in practice, more exteniire than in^England.

MAINE, 1840. 103

The Huntrem.

having, what is so important to a commercial nation, a
uniform maritime law, in all the States of the Union. It is
unnecessary to expand the argument. Every mind disci-
plined by habits of juridical reasoning and experience, which
has reflected at all on the mechanism and operations of civil
government, will feel the conclusion to be irresistible, if we
suppose that the convention felt the value and force of this
axiom, as they were felt by the Federalist. That the writ-
ers of the Federalist only shared and expressed the common
feeling and opinion of the convention, is, I think, proved by
their work. The judicial is, by the Constitution, made co-
extensive with the legislative power. It is not essential that
this jurisdiction, in maritime causes, be exercised in all cases
by the Court alone, as is most usual in the admiralty. Con-
gress may provide for the appointment of assessors, a^ is not
onfrequently done by the Court itself, from its own inherent
authority, or for the intervention of a common jury.

Thus far the subject has been considered as an original
question, precisely as it presented itself, sixty years ago, to
the first judicial tribunal that had to pass upon it. To us,
however, it does not present itself as a naked question of
original speculation. It comes prejudged by a contempora-
neous construction, and by the uniform and unvarying prac-
tice of more than half a century.

In looking for the contemporaneous construction of the
Constitution, our attention is naturally first turned to the
Federalist. The eightieth number treats of the extent of
the judicial power. In that. Gen. Hamilton says, " It seems
hardly to admit of controversy, that the judiciary authority
ongbt to extend to these several descriptions of cases." He
enameTates five classes, the fifth of which is, ''off those which
originate an the high seas^ and are of admiralty cr mari-
time jurisdiction." After commenting more at large on the
previous classes, he adds : '' The fifth point will demand lit-
tle animadversion. The most bigotted idolizers of state au-

104 DISTRICT COURT,

The Huntrem.

thority have not thus far shown a disposition to deny th
national judiciary the cognizance of maritime causes."

The commentators on the Code Napoleon habitually refer
to the discussions at the tribunate, and in the council o
state, on the several articles of the code, as of high au-
thority in the interpretation of any doubtful or ambiguous
language. We have not, for our aid in explaining and
opening the sense of any obscure article in our Constitu-
tion, the benefit of the debates upon it in the convention;
but we have what all will admit to be of equal, if not of
much higher authority. We have a commentary, deliber-
ately prepared by three of the most accomplished statesmen
which this country has yet produced, published immedi-
ately after the Constitution was made, while all the discus-
sions were fresh in their minds, and before it was adopted by
the people. The number quoted was written by Gen. Ham-
ilton, but it is fair to presume that all concurred in the gen-
eral opinions that were entertained by each. Can any one
suppose, when it is said that the judicial power under the
Constitution extends to aU cases, that arise on the high seas;
when afterwards recurring to the subject, seemingly ex inr
dusiria^ the word admiralty is dropped, and the word mari-
time used alone, as descriptive of the Constitutional jurisdic-
tion, thus presenting it as the leading and important feature
in the clause ; I ask, can any man imagine that the Federal-
ist supposed that the cognizance of maritime causes, intend-
ed to be given to the Courts of the United States, was con-
fined to the narrow and jejune jurisdiction, allowed by Liord
Coke and his followers to the Admiralty Court of England?
Were Gen. Hamilton, Chief Justice Jay, and Mr. Madison
so ignorant of the common-places of the law of England, as
not to know that the admiralty in England, instead of hay-
ing jurisdiction over all cases that arise on the high seas, was
allowed to take cognizance of but a very small number of
tiiem?

MAINE, 1840. 105

The HantreM.

We have in the judiciary act, (Sept 24, 1789, ch. 20,) a
contemporaneous construction of this clause of the Constitu-
tion, of the highest authority. In apportioning to the several
Courts the judicial power, the ninth section assigns to the Dis-
trict Court ^'exclusive original cognizance of all civil causes
of admiralty and maritime jurisdiction, including all seiz-
ures under laws of impost, navigation, or trade of the Unit-
ed States, where the seizures are made on waters which are
navigable from the sea by vessels of ten or more tons burthen,
within their respective districts, as well as upon the high seas;
saving to suitors, in all cases, the right of a common law
remedy, where the common law is competent to give it."=*

*ThiB act bean internal marks of havinsr been prepared with great care,
bj men who well underatood the state of the law. This clause is a proof
of it. In the ease of the Vengeance, 3 Doll., 294, the Court decided that a
revenae seizure, made on the water, was a civil cause of admiralty and mar-
itime jurisdiction. Independent of the local law and the usages of this
countrj, it is not properly a cause of admiralty jurisdiction. In the cele-
brated case of the Columbus, in 1789, Sir James Marriot says, that ** the
Court of Admiralty deriveslio jurisdiction in causes of revenue from the pa-
tent of its judge, or from the ancient, customary, and inherent jurisdiction
of the prerogative of the Crown in the person of the Lord High Admiral.'*
ColUetanea Juridiea, vol.1, page 97. As an instance Court, it takes cogni-
zance of maritime contracts and torts between party and party, by virtue
of its general and inherent power. Its jurisdiction in revenue causes is sn-
perindaee^ by special acts of the legislature, but does not belong to it mere-
ly as a maritime Court. In this juntry, revenue causes had so long been
the subject of admiralty cognizance, that Congress considered them as civil
causes of admiralty aod marit'me jurisdiction, and to preclude any doubt
that might arise, carefully added the clause, ** including," &c. This is a
clear proof that Congress considered these words to be used in the sense
which they bore in this country, and not in that which they had in Eng-
land.

The aet gives exduHve admiralty and maritime jurisdiction to the District
Court. As a Court of the law of nations, as a Court of prize, its jurisdic-
tion is, and was intended to be, in every sense, exclusive of that of the State
Courts. As a maritime, or instance Court, its jurisdiction is also exclusive
where the remedy can be given only by a Court of Admiralty. But in oases
where the Courts of common law have always exercised a concurrent jurie-
dietioD, the jurisdiction is not, and was never intended by the Constitution

106 DISTRICT COURT,

The Hantresi.

If this act is not unconstitutional, it is perfectly decisive ol
the whole subject. It negatives, beyond the possibility of doubt
or controversy, the hypothesis that limits the admiralty and
maritime jurisdiction of the Courts of the United States^ un-
der the Constitution, to that allowed by the common law
Courts of England to the High Court of Admiralty. Reve-
nue causes were never within the admiralty jurisdiction in
England, but always belonged exclusively to the Exchequer.
But in this country, for more than a century, these causes
bad been heard and decided by Courts of Vice Admiralty.
Congress, therefore, must have considered that the words of
the Constitution were used, not in the sense which they had
in the laws of England, as expounded by Lord Coke, and by
the common law Courts on writs of prohibition, but in the
gense which they bore in the jurisprudence of our own
country.

This law was made by the first Congress that met under
the Constitution. How many of its members had borne an
active part in the Convention in framing the Constitution, I
have not at hand the means of determining. But in one

to be, ezclus'iTe, though the subject matter be maritime. To take the famil-
iar case of mariners* wages ; if they mean to look to the vessel, and proceed
on the maritime hypothecation, they must goto the admiralty ; the jurisdic-
tion is exclusive, because the hypothecation cannot be enforced in a suit ac-
cording to the forms of the common law. But if they proceed in personam
against the master or owners, no man ever doubted that the Courts of com-
mon law have jurisdiction. But here, to preclude the possibility of doubt,
Congress added the clause saving to suitors a common law remedy where
that law could give it. Saving to suitors; undoubtedly to the creditor par^,
the actor. He has his choice of jurisdiction, and the debtor party must
abide that jurisdiction, as in common sense and common right it ought to be;
as it in fact is in all other cases of concurrent jurisdiction, between that of
ooramon law and equity, as well as between common law and admiralty.

The case of the Columbus is quoted by Brown as the Columbia, decided
in 1782. The whole case will be found in the first volume of the ColUeta-
nsa Juridica, a curious, and, in this country, rare collection of Law Tracts,
published in London, in 1791.

MAINE, 164a. 107

The HontreM.

branch, the Senate, then consisting of twenty-two Senators,
MX, that is, more than one-fourth of the whole number, had
been members of the Convention.* Was there no one of
these, Robert Morris, for instance, who could inform the
Senate in what sense the words of this clause were under-
stood by the Convention ? In that Senate, also, were Oli-
ver Ellsworth, Rufus King, and Richard Henry Lee. They
had not, indeed, been in the Convention ; but surely such
men were not ignorant of the sense in which these words
were understood at that time ; nor did Chief Justice Ells-
worth require long homilies to be read from the horn books
of the law, to inform him that revenue seizures were not, by
laws of England, civil causes of admiralty jurisdiction.

The law passed, and I am not aware that any opposition
was made to this part of it. It went into operation and
was brought, of necessity, to the attention of the Courts at
every session. But for seven years we hear no word of com-
plaint from any District in the Union, of this part of the
act If it was so gross and palpable a violation of the Con-
stitution, as it certainly was if the words of this clause are
to be measured by the sense which they had in England
and not by that which they had in this country, we may
well ask, with some feelings of surprise, where, during these
seven years, were slumbering the watchmen of our American
Israeli

The first case in which the question was raised, was that
of The U. S. vs. The Vengeance, 3 Datt. 297, in 17%.
The vessel was seized for a violation of an act of Congress,
of May 22, 1793, prohibiting, for a limited period, the expor-
tation of arms and ammunition. The vessel was condemned
in the District Court, and on appeal the decree was reversed
by the Circuit Court, and a decree of restoration pronotmc-

* William Sunuel Johnson, of Conneetieiit, Robert Morris, ofPennsylvm-
aia, George Reed and Riehard fiatsett, of Delaware, John BUir, of Viigiiila,
Pimm Batkr, of Soatk Caiolina, and Wm. Few, of Georgia.

108 DISTRICT COURT,

The Hantreis.

ed. From the Circuit Court the case was carried by unit
of error to the Supreme Court On the opening of the case,
the Court, supposing the Attorney General did not intend to
enter into any further discussion, expressed their opinion;
but being informed by Lee, the attorney, that on account of
the importance of the subject he wished to be heard further,
they gave him time. In his argument, he took the ground
that this wa3 not a cause of admiralty and maritime juris-
diction, because it was not so in England at the time of the
Revolution. After he had closed his argument,' the Chief
Justice (Ellsworth) informed the opposite counsel, that the
Court saw no reason to change the opinion which they had
expressed on opening the cause, and that they would dispense
with further argument; and the next day pronounced the fol-
lowing judgment :

By the Court. "We are perfectly satisfied upibn the
two points that have been agitated in this cause. In the first
place, we think it is a cause of admiralty and maritime ju-
risdiction. The exportation of arms and ammunition is simply
theofience; and exportation is entirely a water transaction.
It appears, indeed, on the face of the libel, to have commenced
at Sandy Hook, which must certainly have been on the wa-
ter. In the next place, we are unanimously of opinion that
it is a civil cause ; it is a process of the nature of a libel in
rem, and does not, in any degree, touch the person of the
oflfender."

" In this view of the subject, it follows that no jury was
necessary, as it was a civil cause ; and the appeal to the Cir-
cuit Court was regular, as it was a cause of admiralty and
maritime jurisdiction."

The question was again raised, in the case of U. S. vs.
The SaUy, 2 Cranch^ 406, in 1805. The same objection
was taken, and was again unanimously overruled. In the
year 1806, it was again brought up, in the case of U, S. vs.
THie Schooner Betsey and Charlotte^ 4 Cranch, 443, a seiz-
ure made in the port of Alexandria, under a law for suspend-

MAINE, 1840. 109

The HantresB.

ing commercial intercourse with certain ports in the island of
St. Domingo. The question was again most thorough-
ly argued against the jurisdiction, by Lee, twelve years
after he argued the case of the Vengeance. In this ar-
gument, as is tnily said by Judge Nelson, " will be found
the ground and substance of all the arguments that have
been urged in favor of the limited construction of the admi-
ralty powers under the Constitution." 6 Howard Rep, 322.
It was contended, with perfect justice, by Mr. Lee, that if
this was not a case of admiralty and maritime jurisdiction
under the Constitution, it could not be made so by Congress,
and in that case, the law which put such causes on the ad-
miralty side of the Court, was unconstitutional. The Court
again, without hearing a reply, unanimously overruled the
objection and sustained the jurisdiction. The first and last
of these cases were fully and earnestly argued, and with such
learning and ability, that, in the opinion of Judge Nelson,
those who have followed on the same side have done nothing
more than expand the argument and accumulate citations.
They abundantly prove, what nobody ever doubted, that in
England the jurisdiction of the admiralty has been, since the
controversy in which Lord Coke figured, so little to his repu-
tation either as a lawyer or a man, restricted within very
narrow limits ;* but they leave untouched the only question

*Tlie state of mind, in which Lord Coke went into the controTeny on
the fubject of the admiralty jurisdiction, does not deserve the respectable
name of prejudice^ It was mere willfulness and passion. Brown says that
he hated the ciril law and erery thing connected with it. He was undoubt-
edly a man of an acute and Tigorous mind, but it ran in a narrow groove.
No man knew better the old law of England in all its ramifications of feud-
al technicalities and quibbling subtleties ; but this was all, except the tem-
porary politics of the day, that he did know. He Ulks about the gladsome
light of jurisprudence, but no one at this day will look for this light in his
ponderous volumes of insufferable tediousness, in which all things are jum-
bled together in a perfect chaos. As a jurist, in the liberal and philosophical
sense of the word, Lord Mansfield was as much his superior as light is bet-
ter than darkness.

HO DISTRICT COURT,

The Uuntrew.

in which we are interested ; what is the meaning of theoe
words in the Constitution ? what was intended by the fram-
ers of that instrument) and in what sense they were gener-
ally understood by those who adopted it? Mr. Lee contend-
ed that they meant precisely that jurisdiction which was ex-
ercised by the High Court of Admiralty in England. This
has been repeated by all those who have followed him on
that side of the question. Indeed, when the argument for
the narrow jurisdiction is reduced to its last analysis, this as-
sumption is the only element on which it rests; an assump-
tion which we may be permitted to call at least extraor-
dinary, for it amounts to this, that we, half a century after
the adoption of the Constitution, know better what was in-
tended by those who framed and adopted it, than they knew
themselves.

The Supreme Court considered the question so clear of
doubt or difficulty, that, without hearing a reply, they unan-
imously overruled Mr. Lee's objections. And here let it be
remembered, that three of the judges who concurred in these
decisions were members of the Convention who framed the
Constitution,* and all had taken a part, more or less active, in
the discussions that preceded its adoption. It is difficult to
conceive how any contemporaneous constmction of a law
can have a higher authority.

It is now sixty years since this law was passed. During
the whole of this time it has been practiced upon, and en-
forced habitually in every maritime District in the Union.
Thousands of cases have been adjudicated, involving mill-
ions of property. Great numbers of these cases have been
carried by appeal to the Supreme Court, and have been af-
firmed with the concurrence of every judge that has had a
seat on that bench. If the opinion of those who contend for

* These three were Wm. Patterson, James Wilson and John Blair. Their
names appear among those who si^ed the Constitution, and are supposed to
be the same persons who were afterwards appointed judges of the Supreme
Court

MAINE, 1840. Ill

The HnntrMi.

the Engliah limitation of our admiralty jurisdiction is conecl;,
that is, that our Constitution is to be interpreted by the lawp
of England, every one of these decisions was coram m^
judicBj an absolute nullity and incurably void.

The only real question is on the meaning of this clause of
the Constitution, all causes of admiralty and maritime juri&-
tion; — the sense in which these words were understood by
those who made, and those who adopted it, for it may well
be assumed that both understood the words alike. We have
the contemporaneous declarations of every branch of the gQV-
eroment, of the legislature which passed the law of Sept
24th, 1789, and of the Executive who approved it, a series of
deliberate and well considered decisions of the judiciary, and
the quiet assent of the people to an unbroken and unvarying
practice continued for more than half a century, all concurring
in one point, that the admiralty and maritime jurisdiction,
under the Constitution, is of larger extent than that of the
English Court of Admiralty, and all repudiating the assump-
tion that we are to look to the laws of England for the defi-
nition of these terms in the Constitution. If this cannot )gk>w
be considered as a settled question of American jurisprudeQqe
under the great organic law of the government, we m^y, it
seems to me, well say not only that no such question is setr
tied, but that none ever will be or ever can be settled. And
if every officer of the United States, who is entrusted with
a portion of the constitutional powers of the government, is
at liberty to carry those powers into practice as he under-
stands the Coristitution^ without any reference to the opin-
ions of others, or to any settled and long continued construc-
tion, this sacred instrument becomes a piece of wax, to be
moulded into every variety of arbitrary and fantastic form
that will harmonize with the varying idiosyncrasies of th^se
various officers.

The only object of these observations is, to vindicate tf^e
Court in taking cognizance of causes of this description, at&d
not Ao oftum^ate all the causes that are embraced ji>y tbe

112 DISTRICT COURT,

The BetfT and Rhoda.

tenusof the Constitution; and if a contract for the transporta-
tion of goods on the high seas is not a case of maritime juris-
diction, then it seems to me that there is no such case.

THE BETSY AND RHODA.

By the common law, a simple contract debt is not extinguished by the
creditor's taking a new security for it, unless the security be of a higher
nature, as an instrument under seal, or unless it be agreed to be re-
ceived in satisfaction of the debt

But by the law of Maine, if a negotiable security be given for a pre-ex-
isting simple contract debt, the legal presumption is, that it is received
in payment, and that it is an extinguishment of the original cause of
action ; but this presumption is liable to be controlled by proof to the
contrary.

Tlie presumption of the local law will not be enforced by the admiralty,
against a seaman who receives of the owners their negotiable note for
his wage&

Such a note will not be held to be an extinguishment of the claim for
wages, nor of the lien of the seaman against the ship, unless it is dis-
tinctiy stated to him at the time that such will be the efiect, and die
note is accompanied by some additional security or advantage to the
seaman, as a compensation for his renouncing his lien on the vesseL

Nov. 9/A, 1840. This was a libel in rein, for wages. The
libellant shipped Oct. 9th, 1839, for a coasting voyage, along
the coast of the United States, as mate, for twelve dollars a
month. In the prosecution of the voyage, the vessel went
to Savannah, and was there employed as a lighter on the
river for a considerable time, when she returned to Portland.
The libellant claimed a balance of $46 10 due. After his dis-
cbarge he called on the owners for his pay, but they not be-
ing ready to pay, offered him their promissory note for the
amount, payable in twenty days. This offer was made in
the office of the counsel of the owners. He objected to re-

MAINE. 1840. 113

The Betsy tnd Rhoda.

ceiving it, and stated as a reason, his apprehension that it
might put at hazard his right to proceed against the vessel.
It was not stated to him that it would or would not be a
waiver of his lien on the ship. But he was persuaded to take
the note upon the representation that he would get his pay
sooner on the note than he would by a libel against the ship*
When he called for his pay at the maturity of the note, the
owners gave him in exchange for it an order on their coun-
sel. That not being accepted, he returned it, and took back
the note, and filed a libel against the ship. The note was
brought into Court, and offered to be surrendered. The de-
fence was, that by consenting to take the note the lien was
discharged.

Haines, for the libellant; Bradford, for the respond-
ents.

Warb, District Judge.

It is not denied that the services, for which wages are
claimed, have been performed, and that the balance demand-
ed by the libellant remains due and unpaid. The only ques-
tion is, whether by consenting to take the promissory note of
the owners for the sum due, he has or has not lost his right
of proceeding against the vessel ; notwithstanding the note
is brought into Court and offered to be surrendered to the

makers.

Bythe maritime law, the ship is hypothecated to the sea-
men for their wages, and so long as the debt remains due in
the quality of wages, the lien against the vessel continues in
force. If the lien is lost, it must be because the acceptance
of the note operated as payment, or as a legal extinguish-
ment of the claim for wages for which it was given. By the
common law, a debt due on simple contract is not discharg-
ed by the creditor's accepting another obligation of the same
nature for the same consideration. Johnson vs. Johnson, 11
Mass. Rep. 359. The new title is not considered as an ex-

114 DISTRICT COURT,

Tlie BeUy wd Rhoda.

tinguislimeut of the old debt, but is trented as a merely col-
lateral aud additional security.

The same principle prevailed in the civil law. A creditor
by taking a new obligation for a debt, did not extinguish the
old title. The original obligation remained in force, and the
second was held to be merely an accessary, which of course
became extinct when the principal was satisfied. The
new title was never held to supersede the original cause of
action, unless such was clearly proved to have been the in-
tention of the parties. When this was the case, there was
constituted what was technically called a novation. The old
debt was transferred to the new obligation, and the original
cause of action was extinguished, and all the accessary and
collateral securities attached to it were abandoned. Work-
(BJiig, Jus Romanum Privatum^ vol 2, $ 525. By the con-
stitution of Justinian, a novation could never be inferred from
presumptive evidence ; it could stand only on the express
agreement of the parties. Cade 3 : 42, 8. Instii. 3 : 29, 3.
The rigor of diis constitution has not been followed general-
ly by those nations which have adopted the Roman law as
the basis of their jurisprudence. A novation may be infer-
red from circumstances, but they must be clear, urgent and
conclusive, such as leave no doubt of the intention of tlie par-
ties. Oaiil^ Praciicarum Observaiionum^ Lib, 2, Ob, 30, ^ 3.
Voet, Ad, Pand, 46, 2. 3 Vinnius, Comm. in Instit UJb, 3,
30, 3, § 7, TouUier, DroU Civil, vol, 7, No. 276.

This rule of jurisprudence, which equally prevails in the
common law and civil law, is founded on this plain and reas-
onable principle, that no one ought, on slight circumstances,
to be presumed to renounce any of his rights. When a new
security is taken for an old debt, the natural and legal pre-
sumption is, that it is taken as collateral, unless it is express-
ly agreed; or is clearly to be inferred from the circumstances,
to have been the intention of the parties to cancel and annul
the original cause of action, and substitute the new tttle in
its place.

MAINE, 1840. 115

The Betty mmI Rho4a.

If the present case is to be decided upon these principles,
it is clear that the defence cannot prevail. It is manifest
from the evidence, that the libellant did not actually consent
to renounce his right of proceeding against the vessel, because
he objected to taking the note upon the very ground that it
might endanger this right.

It is true that, by the local law of this State, 'the accept-
ance of a negotiable security for a pre-existing debt, by sim-
ple contract, is generally held to be payment, and an extin^
guishment of the original cause of action. Tfuicher vs.
Dinsmore^ 5 Muss, Rep, 299. Chapman vs. Durante 10
ife. 47. Whilcamb vs. WiUiams, 4 Pick. 228. Wood vs.
Bodwdlj 12 do, 268, 70. Vance vs. Nobleborough^ 2 Green-
leaf, 121. DescadiUas vs. Harris, 8 Greenleaf, 298. The
reason assigned for this departure from the principles of the
common law is, that the debtor might otherwise be put to in-
convenience, and possibly be compelled to pay the debt twice,
as he could not successfully defend himself against an action
on thi note in the hands of an innocent endorsee, by
showing that the debt, for which it was given, had been oth-
erwise satisfied. The law, therefore, raises a presumption
against the creditor, who has taken such security, that he has
renounced his right of action on the original contract. This,
however, is only a presumption, which may be overcome by
proof to the contrary ; but the burthen of proving this is
thrown on the creditor. Maneely vs. SfGee, 6 Mass. Rep.
143. Johnson vs. Johnson, 11 do, 359. This is not only an
innovation on the common law ; it is also a departure from
the general law merchant. That puts upon the debtor the
burthen of proving that the note was intended by the parties
as a satisfaction of the debt. 1 Btirr, 9, Rhoades vs. Barnes.
6 Cranch R. 263, Sheehy vs. Mandeville, 1 Cranch, 181,
Clark vs. Yotmg. 3 East R, 261, Drake vs. Mitchell 16
Peters R. 667, 8, Peter vs. Beverly. 4 Mason, 343, Walr
lace v». Agry. Like the common and civil law, it adheres
lo the natural presumption, that when two securities are giv-

116 DISTRICT COURT,

The BetMj and Rhoda.

en for the same debt, both titles are intended to be valid and
binding until the contrary is proved, though but one satis-
faction can be demanded.

Admitting then, that this case is to be governed by the
local law, it is still, on the most rigorous interpretation of the
rule, an open question upon the evidence, whether the note
was received in satisfaction of the wages, or not. The tes-
timony on this point is not of a very conclusive character.
The libellant consented to take the note, on the assurance
that he would obtain his money on the note sooner than he
could get it by a libel against the vessel. And he took it
with an uncertainty in his own mind, whether he would
thereby lose his remedy against the vessel. That uncertainty
was not removed by the owners, although it is manifest that
they acted under the impression that such would be the ef-
fect, and the business was transacted in the presence and
under the advice of their counsel. It may be conceded, that
if this had been a transaction between merchant and mer-
chant, the presumption of the local law ought, upon this
evidence, to prevail. They would be dealing on equal
terms, and neither party would be under any obligation to
communicate what both iare presumed to know; for, ordi-
narily, every man is presumed to know the Jegal conse-
quences of his own acts. But this was between the mer-
chant owners and a seaman. In the admiralty, seamen
are always treated as a favored class of suitors, and enti-
tled to a large and liberal protection, as being, in a qualified
sense, the wards of the Court. From their open and un-
suspicious character, their inexperience in business, as well
as their usual state of destitution and notorious improvidence,
they are extremely liable to be overreached, by the superior
knowledge and foresight of those with whom they deal,
and drawn into unequal bargains. And especially does their
poverty, with their habitual recklessness of the future, place
them in a state of dependence, which subjects them very
much to the power and influence of their employers. They

MAINE, 1840. 117

The Betsy and Rhoda.

in all respects stand on unequal ground, with unequal ad-
vantages, in treating with the merchant owners, a class of
men, who, by their education, habits, and course of life, are
as remarkable for their shrewdness and quick perception of
their interest, and the systematic steadiness with which it is
pursued, as seamen are for the reverse. A Court of Admi-
ralty will, therefore, interpose to protect them from the con-
sequences of their own heedlessness and ignorance, upon
the same principles that Courts of Equity protect, against
their improvident bargains, young heirs dealing with their
expectancies, or wards and cestui que trusts dealing, with
their guardians and trustees. It habitually looks with jeal-
ousy upon the contracts and dealings of owners with them,
when there is any departure from the ordinary terms of the
contract, or the usual course of dealing; and if it appears
that from their improvidence or necessities, they have been
induced to waive any of their rights, without an adequate
compensation, the Court will set aside the most express stip-
ulations as inequitable. The Juliana^ 2 Dodso?ij 504. Har-
den vs. Oorden, 2 Mason, 555. The Minerva, 1 Haggard,
365. Brown vs. Lull, 2 Sumner, 449. 3 Kent's Com. 193.

Upon these principles, how stands the defence of this
cause? The libellant was persuaded to accept for his wages
a promissory note, on the representation that he would there-
by obtain the money without the expense and trouble of a
suit, and sooner than he could get it by a libel against the
vessel; and for these considerations the owners now contend
that he renounced his lien on the ship, to which a seaman
always looks as his best security.

Now, in the first place, it is to be observed that the first
part of this representation turns out, as the present suit
shows, to be a failure by a breach of contract, on the part of
the owners themselves. The second part, to wit, that he
would obtain his wages sooner through the note than he
could get them by a libel against the vessel, was untrue in
point of fact, even on the supposition that the note had been

118 DISTRICT COURT,

The Betfj and Rhoda.

paid at maturity. The note could not be demanded until
after the expiration of twenty days. But a libel for wages,
when the parties are all present and there is no defence, is
never permitted to remain in this Court for half that time
To a seaman, the delay is, in many cases, equivalent to the
denial of justice. His daily bread is earned by his daily
labor, and that is of course upon the water. He is unfitted
by his tastes and his habits for the common occupation of
a laborer on land. It would be difficult for him to find em-
ployment if he sought it, and not easy for. him to perform
the service, if the employment was found. He usually has
not the means to pay his expenses ashore for any length of
time, and if he had, it would be better for him to abandon a
moderate claim, than to await the distant result of a suit, in
its slow progress through the forms of the ordinary Courts
of justice. In all maritime countries, therefore, seamen are
privileged to go into their own peculiar Courts, whose conrse
and forms of proceedings, are adapted to the direct and
guileless character of the suitors, and the simplicity of their
causes; where the proceedings are prompt, and justice is ad-
ministered without delay. Velo levato — sine sirepiiuforensi
Kurik. QucBst lUust, QucesL 37. Loccenius De Jure
Mariiimo Lib. 3. Cap. 10. In the admiralty, causes for
subtraction of wages are always summary, without the pro-
lix formalities and delays of plenary causes. The consider-
ations, therefore, for which the libellant was induced to waive
his lien on the vessel, if such be the legal effect of the act,
have either failed in point of feet, or were founded in error
and mistake.

But further; he never did, in point of fact, consent to
waive his remedy against the vessel. A doubt, it is true,
arose in his mind, whether such might not be the legal con-
sequence of his accepting the note, but unless this was the
necessary result in law, he did not make it so by his consent
If then it is to be adjudged that the lien is lost, it must be sim-
ply by force of the presmnption of the local law, against the

MAINE, 1840. 119

The Betty aod Rhoda.

rule of the common law, and the general law merchant; and
equally in opposition to the principles of the civil law and
the natural presumptions arising out of the contract itself
For when a creditor takes a new security, the natural pre-
sumption is, that it is taken as subsidiary to the original obli-
gation, unless it be a security of a higher nature. But in the
present case, it was of an inferior nature, or rather, it was a
renunciation of the better part of his actual security, with-
out any compensatory advantage. For the owners were
equally liable on the contract for wages, as upon the note,
and for these also he had a remedy against the master and
the vessel, in addition to the personal liability of the owners.

It 18 not necessary for me to consider how far a Court of
common law would feel itself bound to enforce against the
seaman in this case the rule of the local ]aw. A Court of
admiralty, it is certain, will, in some cases, give a remedy
where a Court of common law would not. By its con-
stitution, it is required to decide ex cBquo et bono, and its
practice shows that it is not, in the administration of justice,
tied down to the dry, and sometimes harsh rules of the com-
mon law. Within the limits of its jurisdiction, it acts upon
the liberal and enlarged principles of a Court of Equity; and
eq;>ecially it does so in dealing with the contracts between
seamen and ship-owners. Browne vs. Lull, 2 Sumner R.
443. The Minerva, 1 Haggard, 347. The Fortitude, 2
Dodmm, 68, 7. Ship Bellona, Bee^s Rep. 106. It goes as
far in extending its protection to the weaker party in these
cases, as a Court of Equity does in any case, unless it be
where a party is strictly a ward of the Court, and it acts in
the character of guardian. It applies the same protective
principles that a Court of general Equity jurisdiction does
where the parties stand to each other in fiduciary yelations,
ae that of attorney and client, beneficiary and trustee, or
principal and agent, and will not allow an owner to derive
any benefit from a surprise be has practiced upon the inei^

120 DISTRICT COURT,

The BeUiy and Rhoda.

perience or ignorance of a seaman, or an advantage he has
taken of his necessities.

In this view of the habits and the course of a Court of
admirahy, I do not feel myself authorized to say that the li-
bellant, in taking the note, waived his privilege against the
ship. He acted under a species of constraint He was in-
digent, and needed prompt payment He was entitled to it
without delay, and iic consented to receive the note upon the
assurance that it was his most expeditious mode of obtain-
ing it The most that can be said is, that it may have sus-
pended his rights of suing out process until the note arrived
at maturity, or until he surrendered it to the makers. To
have given to the act the effect of a waiver of his privilege,
and an extinction of the lien, it should iu the first place have
been distinctly stated to him that such would be the result;
and as at present advised, my own opinion is, that the note
should also have been accompanied with some other securi-
ty, in addition to the personal liability of the owners, as an
equivalent and a compensation for the discharge of the lien.

This, it appears to me, is the judgment which the Court is
required to pronounce on this transaction ; and my mind is
fortified in this conclusion, by the judgment pronounced by
the Circuit Court, in the case of Bronme vs. LiiU, before re-
ferred to. The Court there stated, with great clearness and
force, the reasons for watching with jealousy any innovation
upon the usual form of the mariners' contract, and the con-
clusion from the whole is, that <^ whenever any stipulation
is found in the shipping articles, which derogates from the
rights and privileges of seamen. Courts of admiralty hold it
void, as founded on imposition or an undue advantage taken
of their necessities and ignorance and improvidence, unless
two things concur; — first, that the nature and operation of
the clause is fully explained to them ; and secondly, that an
additional compensation is allowed, entirely adequate to the
new restriction and rules imi>08ed upon them thereby."

MAINE, 1841. 121

The Dawn.

The same reasons of natural justice and public policy,
upon which these principles are founded, apply, with equal
force, to any adjustment or settlement of. the wages after
they are earned, by which they are not actually paid. The
wages, while they remain due in that quality, are a privileg-
ed debt; and a seaman ought not to be presumed to waive
any privilege attached to his demand, unless the legal effect
of the settlement is fully explained to him at the time, and
some advantage or security is allowed in compensation for
that which he renounces. My opinion therefore is, that the
lien is not lost.

THE DAWN.

The libellant shipped for a voyage from Boston to Turk^s Island. The
ship, soon afler leaving port, was so much damaged by the fortune of
the seas, that the master, for the safety of the lives of the crew, put
into Bermuda, where a survey was called, and she was condemned
and sold as a wreck, and her crew discharged. Wages were paid ta
the libellant until he arrived at Bermuda. By his libel, he claimed either
the two months wages allowed to seamen on the sale of a vessel in a
foreign port and the discharge of the crew, by the Act of Congress of
Feb. 28, 1803, § 3 ; or a sum in addition to his wages to pay his expen-
ses home.

The Act of Congress applies only to the case of a voluntary sale of a
vessel, and not to a sale rendered necessary by misfortune ; held that
the libellant was not entitled to the statute allowance, but was entitled
to a sum in addition to his wages to defray the expenses of his return,
home, to be paid from the proceeds of the sale of the vessel

Generally, when the perfomriance of a contract has become impossible
by a fortuitous event, the parties are discharged from its obligations.

On the happening of any disaster to a vessel, by which the prosecution
of the voyage is rendered impossible, the seamen are discharged from
the principal obligation of performing the voyage; but they are not re-
leased from the incidental obligation of rendering their best services
for saving as nrmeh as practicable of the ship and cargo.

122 DISTRICT COURT,

Thfl Dftwn.

The opinioDs of Valin and Pothier on this subject examined and ques-
tioned.

On the principles of the common law, applicable to the contract of hir-
ing of labor and service, a party cannot ordinarily claim an extra com-
pensation, on the ground that, by some unexpected event, the service
which he has agreed to perform, becomes more laborious and danger-
ous than was anticipated at the time of the contract

The maritime law, on principles of public policy, makes an exception to
this general rule, in cases of shipwreck.

In cases of shipwreck, the seamen are entitled to their full wages up to
the time of the disaster, provided, by their exertions, enough is saved
of the freight and wreck to pay them.

The old rule in England, that freight is the only fund against which wa-
ges can be claimed, was never the rule of the maritime law, and was
never adopted in this country.

The ship, together with the freight, is, to the last fragment, hypothecated
to the seamen for their entire wages, iota in toto et iota in quaUbetparte.

In cases of shipwreck, the seamen are entitled to claim, according to the
merit of their services, an extra reward, beyond their wages, against
the property saved. This ought not generally to be less than the ex-
penses of their return home.

This, being of the nature of a salvage reward, may be allowed, as well
against the savings of the cargo, as against the fragments of the ship.

The decisions of the American Courts quoted and commented upon.

The doctrines of the maritime ordinances of the middle ages, on this
subject, examined.

Under these ordinances, and the usages of the age when they were firam-
. ed and established, the contract of seamen took a peculiar character.
Their wages were made to depend on the successful temiination of
the enterprise. If that totally failed, contrary to the common princ^
pies of the contract of hire of labor or service, there wbs a total loss of
wages. There is no trace of such a usage in the Roman law, nor ia
diat ancient collection that goes under the name of die Rhodian laws,
nor in the legislation of the Lower Empire. On the western coast of
Ekupope, it appears to have been nearly coeval with the revival of com-
merce, afWr the fidl of the Western Empire.

On this restriction contrary to common right, as a compensation and
having its origin in the same policy of connecting the interest of the
crew with the safeqr of the ship, was engrafted another principle, that.

MAINE, 1841. 12S

The Dawn.

in cases of shipwreck, the seamen should be paid, out of the ef&cts
which they sared, a compensation beyond their stipulated wages, in
the nature of sal?age.

Febmary Term, 1841. This case was before the Court
several terms ago, and is reported in Ware's Reports^ 485.
After the opinion was then delivered, the counsel for the re-
spondent moved the Qourt to suspend the decree, to enable
the party to offer further evidence to show the actual condi-
tion of the vessel, when she arrived at Bermuda. Under
the circumstances of the case, the Court allowed the motion.
The case was now presented on the new evidence. The
material facts upon the whole case were as follows. The li-
bellant shipped on board the Brig Dawn at Boston, Nov. 26,
1836, as mate for a voyage to Turk's Island, for wages at 25
dollars a month. Soon after the brig left port, she encoun-
tered violent gales, by which she was so much damaged in
her hull and rigging, as to be incapable of continuing the
voyage, and the master, for the safety of the lives of the
crew, bore away for Bermuda, where she arrived on the 28th
of December. The master then made his protest, and ap-
plied for a survey. Commissioners were appointed for that
purpose by the Governor, who, after an examination, report-
ed, that from the great damage which the brig had received
in her spars and rigging, and especially from the disabled
state of her hull, connected with her great age, she was unfit
for sea, and unworthy of repair; and she was subsequently
sold as a wreck. The additional evidence, now introduced,
went to confirm the report of the surveyors, and to prove the
ruinous condition of the vessel, and to show further the great
expenses of the repairs, which would have been required to
fit her for sea.

The crew were discharged, and paid their wages up to
Ihe time of the discharge. The libellant claimed, in addi-
tion, two months' wages allowed by the act of Congress of
Feb., 1803, sect. 3, upon the sale of a ship and the discharge

124 DISTRICT COURT,

The Uawn.

of her crew in a foreign port, or upon the discharge of a sea-
man in a foreign country with his own consent; and if, un-
der the circumstances of this case, he was not entitled to
claim under the statute, an alternative claim was set forth in
the libel for a reasonable compensation, in addition to his
wages, in the nature of salvage for his extra labor and ser-
vices in saving the vessel, and to pay his expenses home.

The case was argued by C S, Daveis, for the libelJant,
and T. A. Deblois, for the respondent.

Ware, District Judge.

I do not think it necessary, on this occasion, to say much
upon the claim for the statute allowance of two months' ad-
ditional wages, which are directed to be paid to the Consul
for the seamen's use on the sale of a vessel in a foreign port,
or when a seaman is discharged in a foreign country with
his own consent When this case was before the Court at a
former term, that question was fully considered, and the con-
clusion to which my judgment was brought, by that exam-
ination, was that the statute applied only to the case of a
voluntary sale of the vessel, and to a strictly voluntary dis-
charge of a mariner, and not to a sale or discharge rendered
unavoidable by an imperious and overruling necessity. But
when a vessel is sold in a foreign port, the case is within the
words of the statute, and if the owners would exempt them-
selves from its operation, it belongs to them to show that the
sale was involuntary on their part As the evidence then
stood, it did not appear to me that the necessity of the sale
was sufficiently established by the proof; but, under the pe-
culiar circumstances of the case, it seemed to be reasonable
to suspend the decree, and allow the owner to offer further
evidence to that point The evidence now produced does, in
my opinion, satisfactorily show that the sale was, in the rea-
sonable meaning of the word, a sale of necessity. Not that
it was physically impossible to repair the vessel and proceed

MAINE, 1841. 126

The Dawn.

▼oyage; for it is alw^ays possible to repair or rebuild
»1, while any part of the hull remains. But the dam-
ere so extensive, and the expense of the repairs would
t)een so considerable, that it was, beyond question,
for the interest of those on whom the loss must ulti-
fall, to abandon the voyage and sell the materials
ed for the most they would bring. ' A sale is, within
Tcantile and reasonable sense of the word, necessary,
;he vessel cannot be repaired but at a great sacrifice
interests of the owners. And when a voyage is brok-
br such cause, the seamen are not properly discharg-
the whole enterprise is brought to a premature con-
by a fortuitous event, for which neither party is re-
>Ie.

other question raised by the pleadings in this case is
r, ui)on a shipwreck and loss of the vessel in a for*
>antry, the seamen, who have remained by tlie ship
thfuUy performed their duty to the last, can, upon the
les of the maritime law, claim a compensation, out
property which they save, beyond their stipulated
up to the time when their connection with the ship is
dissolved, sufficient to pay their expenses home,
lestion has been very ably and elaborately argued on
ies; and the authorities bearing upon it have been
examined. But, with all the researches of counsel,
idged case has been found, in which the question has
rectly and formally decided.

contended by the counsel for the libellant, that this
(founded on an ancient principle of the maritime law
)pe, incorporated into the earliest digests of the law,
:ommended as well by the dictates of justice and hu-
as by an enlarged and enlightened public policy; —
it is not directly sanctioned by any Judicial prece-
leither are there any by which it is directly nega-
mt, that there are cases in which a compensation in

126 DISTRICT COURT,

The Dawn.

the nature of salvage may be allowed, beyond the amount
of wages due, is fairly inferable from the doctrines of many
of the adjudged cases, and is in fact but a just application
of the general principle of the marine law, which studiously
connects the interest of the crew with the safety of the ves-
sel and cargo. On the other side it is argued, that the claim
cannot be supported as one flowing from the contract, all
rights under that being satisfied by the payment of wages
up to the time when the contract was dissolved by an acci-
dent of major force; — that it cannot be maintained as a sal-
vage reward, because the ship's company can, it is said, in
no case claim as salvors, being bound by their contract to
use, on these melancholy occasions, their utmost exertions
for the preservation of the ship and cargo for their stipulated
hire; — and the silence of our jurisprudence, on a question
which must have frequently been presented to the Court, has
been strongly urged as a proof that no such principle, as that
contended for in behalf of the libellant, is acknowledged by
the maritime law of this country. And it is further contend-
ed, admitting the rule of the maritime law to be, that upon
a shipwreck in foreign parts, the crew are entitled to claim
against the savings from the wreck a sum sufficient to pay
their expenses home, that this rule is superseded, in this coun-
try, by the acts of Congress for the relief of destitute mari-
ners in foreign countries, requiring the Consuls of the United
States to provide for their return at the public expense.
Such I understand to be the general tenor of the arguments
at the bar.

I agree with the counsel for the respondent, that by the
maritime law, as it is received in this country, the seamen
are bound to remain by the wreck and contribute their ut-
most exertions to rescue as much as possible from the vio-
lence of the elements, so long as there is a reasonable proba-
bility of saving any thing, without too much hazard of life.
It is true, that a difierent view is taken of the obligations of
the crew by the most distinguished maritime jurists of

MAINE. 1841. 127

Th« DftWB.]

France. Yalin says, that in case of shipwreck the seamen
are at liberty to abandon the ship, although he admits that
his opinion is in opposition to the decision of the Judgments
of Oleron and the ordinance of the Hanse Towns. The
reason, he says, is, that in this case the owner is under no
personal obligation to pay their wages or the expenses of
their return home, and consequently, if they refuse to aid in
saving the property, he has no cause of complaint. Comm.
sur Ordinance de la Marine^ Liv. 3, Tit, 4, Art 9, vol. 1,
704 Pothier maintains the same doctrine. By the accident
of major force, he says, which prevents the continuation of
the voyage, the parties are freed from their engagements,
and the seamen are no longer under any obligation to con-
tinue their services. Contrats Mariiimes, No. 127. Boulay
Paty, without being very explicit, seems silently to acquiesce
in the same conclusion. Cours de Droit Maritime, vol 2,
230-1.

But, notwithstanding the imposing authority of these great
names, it appears to me that this doctrine is exposed to very
grave objections. It is true indeed as a general principle,
when the performance of a contract is rendered impossible
by a fortuitous event, that the parties are freed from its obli-
gations. And in this case, the prosecution of the voyage
having, by an accident of major force, become impossible,
the seamen are undoubtedly discharged from the principal
obligation of the contract, that of performing the voyage.
But as incidental to that, they are bound at all times to ex-
ert Aiemselves for the preservation of the property entrusted
to their care. It would be singular if they were released
from this collateral obligation on the happening of an event,
which rendered it peculiarly necessary. It appears to be a
duty, resulting directly and necessarily from the nature of
their engagement, to render their utmost exertions, on these
occasions, to save all that is possible for their employers.
This duty is expressly enjoined upon them m nearly all the

128 DISTRICT COURT,

The Dawn.

old maritime ordinances. The law is so stated by Abbot, in
his treatise on shipping, Part 5, Ch. 2, Sect 2. And so it
has, I believe, been uniformly held in this country. 2 Pe-
ters Ad, R, 395. 2 Mason R, 337. So long as these ser-
vices are continued, their right to wages, under the contract,
remains in full force, and their lien against the fragments of
the wr^ck which they preserve. But, by abandoning the
wreck, they forfeit their wages, nor will their right be r^^stor-
ed should the wreck be saved by other hands. 3 Kent
Camm. 196. 2 Mason R, 337, The Two Catherines. 3
Sumner JR. 67, Pitman vs. Hooper.

But the question presented in this case is, whether the sea-
men can claim any thing beyond the full amount of wages
up to the time of the actual termination of their services. It
is quite clear that this claim cannot be maintained upon the
common principles applicable to the contract of hiring.
Having agreed to perform the service for a stipulated price,
they cannot maintain a claim for extra compensation, al-
though, by some fortuitous event, that service may have been
Tendered more laborious, or have involved more danger than
was anticipated. However just and reasonable such an al-
lowance may, in some cases, be, as a pure question of cas-
uistry, it cannot be sustained upon any established and
known principle of law. Do then the principles and policy
of the maritime law furnish any ground for making an ex-
ception, in favor of maritime services, to the general rule of
the common law? After an attentive consideration of the
subject, and an examination of all the sources of informa-
tion within my reach, I am brought to the conclusion, that
to some qualified extent they do; and I will now proceed to
explain somewhat at large the grounds upon which this
opinion is founded.

No case was cited at the bar, in which this question has
been decided, at least in the form in which it is presented in
this case. There are, however, several, in which the gener-
al subject of the claims of seamen in case of shipwreck,

MAINE, 1841. 129

The Dawn.

against the fragments which they save, is considered.
Chancellor Kent, in his Commentaries, in speaking of ship-
wreck in connection with wages, says that **some of the de^
cisions in this country seem to consider the savings of the
wreck a^ being bound for the arrears of the seamen's wages,
and /or their expenses horned 3 Comm. 195. Here the ex-
penses home are spoken of as a charge on the wreck, in ad-
dition to the arrears of wages. And I refer to this para-
graph, not so much as an authority in support of the doc-
trine, as to show that the idea, that the crew may be entitled
to something beyond their wages, is not such a novelty in
our jurisprudence, as was supposed at the argument. In the
case of the Two Catherines^ 2 Mason^ 319, the vessel had
performed her outward voyage and earned freight, and was
wrecked, and the cargo totally lost on her return, in Narra-
ganset Bay, near her home port. The libel was framed with
a double aspect, claiming, in the alternative, wages or sal-
vage. The question, what was due to the crew, appears to
have been elaborately argued at the bar, and was profound-
ly examined by the Court. The conclusion of the Court
was, that no wages were due, but that the crew were enti-
tled to salvage against the materials, which they had saved,
of the vessel. The Court held, that there was no principle
of law which authorized the position, that the character of
seamen creates an incapacity to assume the character of sal-
vors, — and that the salvage should never be less than the
amount of wages, which would have been due had no dis-
aster happened, but may, according to the circumstances of
the case, be more. ( p. 332 — 340.) I am aware of the lan-
guage used by the same learned judge, in delivering the
opinion of the Court in the case of Hobart vs. Drogan^ 10
Peters, 122. But it does not appear to me to be inconsistent
with the decision of this case, nor to take from its authority.
In the case of the Cato, 1 Peters Ad. R. 48, the ship was
lost at sea, and the crew taken from the wreck by another
vessel. Part of the crew of the Cato assisted that of the

K90 DISTRICT COURT,

The Dawn.

salvor vessel in saving a portion of the cargo, and they were
allowed to claim, as subordinate and auxiliary salvors, one
half the share that was allowed to the crew of the salyor
dhip. Judge Peters observed, in delivering his opinion in
that case, that "the third article of the laws of Oleron has
been produced, together with the commentaries upon it, to
show that seamen saving from a wreck are entitled to a re-
ward, when sufficient property is saved, beyond the amount
of their wages. 1 have,^^ he says, " never disputed the doe-
trine in cases to'which it seemed dpplieable.^^ In another
part of his opinion he adverts to a previous decision he had
made in the case of the Bell« Creole, upon a state of facts
similar to those of the Cato, and says, "I do not exactly rec-
ollect by what nile I estimated the quantum of wages I or-
dered to be paid out of the surplus, to the officers and crew
of the Belle Creole, but I think it was beyond the amount of
wages.^^ I shall have occasion, presently, to remark particu-
larly on the third article of the laws of Oleron, and it will
be seen how it applies to the present case. The case of the
Catherine Maria, 2 Peters Ad. Rep, 424, was that of a ves-
sel foundered at sea. A part of the cargo was saved by the
aid of another vessel, in which the crew were brought home.
Salvage was allowed to the crew of the salvor vessel, and
the crew of the lost vessel were allowed their wages from
the property saved, which was part of the cargo, not only to
the time of the abandonment of the ship, but to the time
when the goods were brought into port, and were taken into
the custody of the Marshal, under the process of the Court
In the case of the Brig Sophia, Gilpin R, 77, the vessel
was wrecked on her return voyage to Philadelphia, on the
capes of the Delaware. The cargo was entirely lost, but
some of the spars and rigging of the vessel were saved.
The seamen filed a libel against the relics of the vessel for
their wages, and the mate a separate libel claiming salvage.
Th« Court held that the claim for wages could not be sus-
tained, on the ground that freight is the mother of wages

MAINE, 1841. 131

The Dawn.

and that, when the freight is entirely lost, no wages eo nomine
are due. But it was further decided, that although nothing
could be recovered as wages, the seamen were entitled ta
claim as salvors, and that the amount, which would have
been due as wages had the disaster not happened, might be
be recovered as salvage. The libel of the seamen was there-
fore dismissed, and the mate recovered the amount of his
wages under the title of salvage.

All these cases clearly sustain the principle, that the sea-
men, in the event of shipwreck, are entitled to claim against
the property which they have saved, in the quality of sal-
vors. It is true that in the case from Gilpin, this seems to
be treated as a substitute for the claim of wages, and to be
measured by the amount which would be due if the disaster
had not occurred. In the other cases, it is clear that the
Court thought it might exceed that amount, and in that of
the CoUherine Maria, more was in fact awarded. And if the
claim is valid for salvage, it would seem, as in all other cases
of salvage, it must be discretionary as to the amount, to be
determined by the particular circumstances of the case. But
all these cases are open to one general remark, which may be
thought to detract something from their authority in support
of the principle contended for in the case at bar; it is this,
that it seems to have been tacitly assumed that the wages
were lost by the calamity which prevented the earning of
freight, and therefore, if the seamen could not be rewarded
for their services in the way of salvage, they could claim
nothing. Undoubtedly it was formerly the doctrine of the
English Courts, that freight was the only fund out of which
wages could be claimed, and of course when freight was not
earned no wages were due. Holt, Law of Shipping, 275.
But that is now overruled in England, (I Hagg, R. 227,
The Neptune,^ and it was never received in this country
but with material qualifications. Freight is indeed the nat-
ural fund for the payment of wages, and the seamen have a
privileged claim against it. It is a right which does not

132 DISTRICT COURT,

The Dawn.

Stand merely on a dry rule of positive law, but is derived
from the nature of things, for it is in part the product of their
own labor. But, by the maritime law, the ship is as much
pledged for wages as the freight. When the interests of
third parties are involved, as between underwriters when
the ship and freight are insured by separate policies, it would
seem, upon principles of natural law, that the freight ought
first to be exhausted, and the vessel resorted to only as a sub-
■sidiary fnnd when the freight proved insufficient This was
the opinion of Emerigon, (Trai/e des Assurances, Art. 17,
$ 11, 53,) and, in a proper case, the Court may perhaps have
the power of marshaling the funds to meet the claims of nat-
ural justice. But, at all events, the seamen are to be paid
their wages, when enough for that purpose is saved of the
ship or freight. 3 Sumner R, 60, Pitman vs. Hooper. It
is not pretended that these authorities establish the principle
as a settled rule of jurisprudence in this country, that upon
shipwreck, when part of the property has been saved to the
owners by the exertions of the crew, they are entitled to an
allowance, in the nature of salvage, beyond the amount of
their wages. But to me they seem to prove, at least, that
the opposite rule is not established, and that the question is
fairly open to be decided upon principle and the authority of
the general maritime law.

We will now inquire what grounds it has for its support
in the general doctrines of that law. The policy of connect-
ing the interest of the crew with the safety of the ship and
cargo, is deeply imbedded in the principles of the maritime
law. The ship and freight are the only pledge they have for
their wages. Their lien upon these and every part of iheni
attaches as a privileged hypothecation, tota in toto et tota in
quaiibct parte, or, as it has been emphatically expressed, to
the last plank of the ship and to the last fragment of the
freight. Jugemens D'Oleron, Art. 3. Consulat de la Mer.
Ch. 132 {edition of Pardessus, 92). Em>erigo7i des Assur-

MAINE, 1841. 133

The Dawn.

ixnceSf Ch. 16, Sect. 11, §2. Pitman vs. Hooper, 3 Sumner
R. 50. But this is the whole of their security. If the ship
and freight are wholly lost, there is a total loss of wages;
and though the ship may be lost on the most distant and in-
hospitable shore of the ocean, they are not only left penny-
less to find their way home as they can, but when, through
many hardships, they have arrived there, however long and
perilous their service may have been, they have no personal
claim against the owner, unless freight in the course of the
voyage has been saved and put on shore. Upon the com-
mon principles of the contract of hiring service or labor, the
title of the laborer to his reward depends upon the faithful
performance of the service for which he is engaged, and is
not liable to be defeated by the accidents of fortune. 2 Rentes
Comm, 690, 1. Pothier, Contrat de Louage^ No, 423. The
principle which attaces the right to wages to the fortune of
the vessel, or in other words, makes the right dependent on
the successful issue of the enterprise for which the men are
hired, is a peculiar feature of the modern maritime law. No
trace of such a principle is to be found in the Roman law,
nor in the maritime legislation of the Eastern Empire, nor
in that ancient compilation which goes under the name of
the Rhodian laws. Pardessvs, Lois Maritimes, vol 1, p^
325, note 3. It owes its origin to the necessities and peculiar
hazards which maritime commerce had to encounter in the
middle ages, when to the dangers of the winds and waves
were added the more formidable perils of piracy and robbe-
ry. The principle having been then established, and found
by experience to be favorable to the general interest and se-
curity of commerce, it has been preserved in the maritime
jurisprudence of Europe, when the special necessities in
which it had its birth have ceased 'to exist.

It is then to the maritime customs and usages of the mid-
die ages, in which this restriction upon the right of wages
had its origin, that we are to look for its nature and quality,
as well as for any countervailing advantages to the seamen,

134 DISTRICT COURT,

The Dawn.

by which this abridgement of the rights naturally resulting
from their contract was compensated, and the scales of jus-
tice, which had been made to incline in favor of the employer,
were equitably readjusted. If we retain the harsher princi-
ples of the old law, it is but just that we should also preserve
the temperaments, by which its severity and apparent injus-
tice were mitigated.

The earliest monument of the maritime jurisprudence of
the middle ages which remains, unless we except the Con-
sulate of the Sea, is the Judgments of Oleron.* The rule is
there stated in these terms: " When a vessel is lost, in what-
ever place it may be, the seamen are bound to save all they
can of the wreck and cargo. In this case the master shall
pay them their reasonable wages arid the expenses of Iheir
return home, so far as the value saved is sufficient; and if
he has not money enough, he may pledge the objects saved
to bring them back to their country. If the seamen refuse
to labor for the salvage, there is nothing due to them, and
on the contrary when the ship is lost, they lose also their
wages." Art. 3. The rule cannot well be be more explicit-
ly declared than in this article. If the ship is totally lost
the seamen lose their wages ; but, against the eiffects which
their exertions have rescued from destruction, they have a
claim not only for the full amount of their wages, for that I
understand to be meant by their reasonable wages, but also
for a further sum to defray their expenses home. Thus we
see that in the very origin of the custom which restricted
the right of seamen for their wages to the eiSects which they
saved, it was connected with another of allowing them
against these effects an additional reward for their labor in
saving them.

The Judgments, or Roles, or, as they are more frequently
called in this country, the Laws of Oleron, do not appear, at
first especially, to have been sanctioned by any direct act of
legislation. They are apparently a collection of maritime

* See note at the end of thie eaee.

MAINE, 1641. 135

The Dawn.

usages, to which custom had given the force of law: but
they have at all times been referred to as of high authority
by all the most commercial nations of Europe. They were
the earliest digest of maritime law in the western part of Eu-
rope, and from the general wisdom and equity of their de-
cisions, as well asf rom other causes, they seem, in one form
or another, to have been early incorporated into the mari-
time jurisprudence of all the western nations of that conti-
nent Being a work of French origin, theywere received as
common law in Aquitaine, Brittany, Normandy, and the
whole extent of the Atlantic coast of France. In England
they early acquired nearly the same authority from an opin-
ion there entertained, that they were originally compiled and
published by Richard I., in his character of Duke of Aqui-
taine, on his return from the Holy Land. In the latter part
of the twelfth century they were adopted by Alphonso the
Wise, King of Castile and Leon, and thus became the law
of the northern coast of Spain. Pardessiis, Collection des
Lois Maritimes, vol. 1, pages 301 afid 306. Vol. 2, page
29. 1 Black. Comm. 418; 2 do. 423. They were at an
early period translated and adopted as the maritime law of
Flanders, under the names of the Judgments of Damme and
the Laws of West Capelle. Pardessus, Lois MariiimeSy
voL 1, chap. 9. The third article above quoted is in its
substance incorporated into the ordinance of Phillip II., of
1563, Pari 4, Art 12. 4 Pardessus, 24 In the more
northern countries, this code does not appear to have been
received as common law ; but the general principles and
usages, which it established, were incorporated into their
own ordinances. The whole of the first twenty-five, which
were the primitive articles, are transferred to the ordinance
of Wisbuy, from the 15th the 39th article. The seventeenth
article of the laws of Wisbuy is almost a literal translation of
the third of Oleron. The Hanseatic ordinance, without copy-
ing 80 closely the article of Oleron, arrives at nearly the
same conclusion. In case of shipwreck^ the crew are tt-

136 DISTRICT COURT,

The Dawn.

quired to assist the master in saving the wreck and cargo,
for an equitable compensation in salvage, to be taken from
the wreck and the merchandize, according to the judgment
of arbiters. If the master has not money, he shall carry
the seamen back to their country, if they choose to follow
him. But if the seamen do not assist, the master is not
bound to pay them anything, and those who have not done
their duty are liable to corporal punishment. When the ship
perishes, the whole that is saved is pledged to pay the to-
tality of the wages. Ordinance of 1614, Tit. 4, Art 29,
and Tit, 9, Art 6. Ordinance of 1591, Art 45. The law
of Denmark requires the master and crew to save the ship
and her rigging as well as the cargo, and a compensation
shall be paid them according to the opinion of good men.
On the other hand, the freight due from the shippers on the
merchandize saved, as well as the wages of the crew, shall
be paid in proportion to the part of the voyage performed.
The mariner who will not aid in saving the ship and car-
go shall lose hrs wages, even what has been advanced,
and be regarded as infamous. Code of Frederic IT., 1561,
Art 24. Pardessiis, Lois MarttimeSj voL 3, p, 250. The
same rules are established by the laws of Hamburgh. The
crew are bound to exert themselves to save the vessel and
cargo for an equitable recompense, and if they refuse their
assistance, the master shall pay them neither their wages
nor any thing else. Statute of 1603, Tit, 17, Art, 1. 3
Pardessus^ 325. The law of Lubec substantially agrees
with that of Hamburgh. It requires the master and crew
to exert themselves to save the vessel and cargo, and allows
them an equitable compensation, to be determined by arbi-
ters. He who does not assist shall be paid nothing, and shall
besides be deprived of his wages. Official Code, 1586,
TU, 3, Art 3. 3 Pard, 444. The Prussian law also en-
joins the same duties upon the crew, and requires the mer-
chant lo pay them a liberal reward, honestum premium viri
boni arbiirio. Code of the Duchy of Prussia^ 1 620, Lib. 4,

MAINE, 1841. 137

The Dawn.

Tit 12, Art. 3, $ 3. The maritime code of Charles XI. of
Sweden, as well as several of the ordinances of the north-
ern nations, prescribes particularly the course to be pursued
by the master on these occasions. He shall first save the
crew, then the rigging of the ship, and lastly the cargo, for
the saving of which he shall employ the boat and the ser-
vices of his crew, for an equitable compensation. When
the ship and cargo are entirely lost, the master and crew
can demand nothing that is due to them. But if they save
of the wreck the amount of their wages, they shall be paid
without deduction. No one shall have a reward for a sal-
vage who has not aided ; and he who has saved effects may
detain them until he is paid. Code of Charles XL, 1667,
Part 5, chap,2, 3 Pardessus, 170. And finally, the maritime
legislation of Russia inculcates the same principles, imposing
on the crew the obligation of saving what they can from the
wreck, and giving them an equitable compensation. for the
salvage. Statute of Riga, 1672, Tit. 6, Art. 1. 3 Pardes-
sus, 520.

The French Ordinance of Marine, of 1681, was framed
upon a review of all the antecedent maritime legislation
of Kurope, improved and corrected, it is said, by informa-
tion sought from practical men in every part of the continent.
And so admirably was the task executed by the great man
who digested it, that from its first publication it was gener-
ally acknowledged as constituting in some sort the text of
the commercial law of all nations. In this celebrated code
we find the same principles established and confirmed. When
the ship and merchandize are entirely lost, it is followed by an
entire loss of wages. But if any part of the vessel is saved,
the seamen engaged for the voyage or by the month shall
be paid their wages. If merchandize only is saved, they
shall be paid their wages in proportion to the freight received.
But at all events they shall be paid for their days employed
in saving the wreck and the effects shipwrecked. Liv.-Sf

138 DISTRICT COURT,

The Dawn.

TU, 4, Ari. 8, 9. The same principles are preserved in the
Code de Ctmvmerce^ Art 261.

It is certainly a little remarkable, in passing to the south-
em*coast of Europe, that we find but very slight traces of a
custom that seems from the earliest times to have prevailed
on the Atlantic coast, that of allowing to the crew something
in the nature of salvage from the property they save from
the wreck. There is one chapter in the Consulate of the
Sea, from which perhaps a custom may be inferred of allow-
ing to seamen the expenses of their return home, when the
vessel is lost on a foreign coast. It provides that when a ship
sails to the countries of the Saracens, and falls into the hands
of enemies, or is lost by the fortune of the seas, if the mas-
ter receive no freight, he shall not be bound to pay the sea-
men anything. " The master," says the Consulate, " who
by one of the causes mentioned loses his vessel, is not oblig-
ed to furnish the means of passage nor provisions for the sea-
men till their return to a Christian country, because he has
lost all he had, and peradventure more.*' Cliap, 228, edition
of Pardessus, 194 The reason given for exempting the mas-
ter from the charge, in this case, leaves room for the conjec-
ture, that if part of the wreck had been saved by the crew,
they might, by custom, be entitled to some allowance from it.
The law of Genoa provides, when any disaster happens to a
Genoese vessel, that the crew shall be bound to remain with
the master and assist in the salvage, and that the master shall
provide for their board and pay them double wages while
they are employed in this service. SiatiUumf 1441, chap.
94 Pard, vol 4, 619. This is all I have been able to find
in the legislation of those countries which border on the Med-
iterranean, indicating the existence of such a custom ; while
the Ordinance of Peter IV. of Arragon and Valentia, by its
silence, seems to negative it It allows the seamen their
wages in these cases to the time of the expiration of their
service, provided they exert themselves to save the wreck
and cargo, but nothing more, and visits upon their refusal to

MAINE, 1841. 139

The Dawn.

aid, the penalty of the forfeiture of all wages, even of that
which has been paid in advance. Ordinance of 1440, Art.
17. 6 Pardessus, 357.

From this review of the maritime legislation and jurispru-
dence of Europe, and more particularly of the western na-
tions of Europe, commencing with the Judgments of Oleron,
in the twelfth, to nearly the close of the seventeenth centu-
ry, we find, either by positive ordinances, or by immemorial
usages having the force of law, one prevailing rule applying
to the case of shipwreck upon the whole extent of the Atlan-
tic coast. It required the ship's company, in case of disas-
ter, to exert themselves to the utmost of their ability to save
as much as possible of the ship and cargo, generally under
the penalty, for the refusal or neglect to perform this iluty, of
a forfeiture of wages, and in some cases of additional pun-
ishment; but restricting their claim for wages to the effects
which they save, and allowing them, against those effects,
some reward beyond the amount of their wages stipulated
by the contract. These principles seem to have been incor-
porated into the early law of every maritime state on the At-
lantic coast, from the extreme west of the Spanish peninsula
to Sweden, including the ports of the Baltic. Such a gen-
eral concurrence, of itself, raises a strong presumption that
they are, taken together, founded in justice and wisdom. But
independent of the authority of general usage, these princi-
ples appear to me to have their foundation in just and en-
lightened views of public policy, their object being to con-
nect the fortune of the crew with that of the vessel, and
thus fortify the obligations of social duty by the ties of pe-
caniary interest. They are strongly maintained by Mr. Jus*
tice Story, in the case of the Two Catherines, before referred
to. "In my judgment," says be, "there is not any princi-
ple of law, which authorizes the position, that the character
of seamen creates an incapacity to assume that of salvors ;
and I cannot but view the establishment of such a doctrine

140 DISTRICT COURT,

The Dawn.

as mischievous to the interests of commerce, inconsistent with
natural equity, and hostile to the growth of sound morals
and probity. It is tempting the unfortunate mariner to ob-
tain by plunder and embezzlement, in a common calamity,
what he ought to possess upon the purest maxims of social
justice." 2 Mason, 332. The rule which restricts the claims
of seamen for wages, to the effects which they save, is one of
naked policy ; but that which allows them against these ef-
fects some reward beyond their wages, seems to be a principle
of natural equity, that is, that when property has been res-
cued and saved to the owner from extraordinary perils by
extraordinary exertions, the fund which is thus saved owes
something to the hand which has preserved it. If it be said,
that the services by which it is saved were due under the
contract, the nature of that contract ought also to be consid-
ered. Upon principles of public policy, contrary to natural
justice and the general law of the contract of hiring in all
other cases, if the ship is totally lost without any fault of the
mariner, he loses his entire wages. But if a mechanic is
hired to build a house, and before it is finished the building
is destroyed by an earthquake or burnt by lightning, he is
not, on this account, the less entitled to his wages. Dig, 19,
12, 59. Or if workmen are employed to build a dike, and
before the work is accepted by the employer it is destroyed,
not from any fault of the workmen, but from the defect of
the soil, or any other extraneous cause, the laborer is still
entitled to his hire. Dig, 19, 2, 62. The loss in such
cases falls upon the owner or employer; and justly, for the
whole profits, on the successful issue of the enterprise, would
have gone to him. It is not so with the seaman. He can
be paid only from the fund which he has brought home to
the owner ; and his compensation is made dependent on the
accidents of fortune, as well as on his own fidelity. It is no
more than a just compensation for this inequality of the con-
tract, when by extraordinary exertions of skill and intrepid-
ity he has saved the fortune of his employer from extraordi*

MAINE, 1841. 141

The Dawn.

nary perils, that these labors should be acknowleded by some
reward beyond his stipulated wages.

And the policy of the principle appears to me to be as
clear as its justice. It is a reward held out to induce the
crew to persevere and exert the utmost of their skill and
courage, even beyond what a Court might think itself justi-
fied in requiring under their contract, to save what other-
wise would be irretrievably lost to the owner. If they can
look to nothing beyood their wages, they will naturally be
inclined to relax their efforts, when enough has been saved
j(br that purpose. They will also turn their attention exclu-
sively to saving that which is pledged for their wages, that
is, the ship, to the neglect of the cargo. An observation of
Judge Peters, whose extensive experience as a maritime
judge entitles his opinion on subjects of this kind to great
consideration, is well deserving of attention. In the case of
the Cato, he remarked : " There is a mistake evidenced by
some of the counsel in this and other salvage ceises, as to the
principles regulating the payment of wages to the seamen in
the cases of wreck. The old law was that they were paya-
ble only out of such parts of the wreck of the ship, her ca-
bles and furniture, as were saved ; but it was found that un-
der this impression the mariners were occupied in saving
those articles from which they derived an advantage, and, to
ensure this, they suffered the goods to perish. Modem au-
thorities are clear that both ship and cargo, or such parts as
are saved, are alike responsible ; though it should seem that
the old fund, to wit, the part of the ship's materials and fur-
niture saved, should be exhausted before the cargo be made
answerable." The mind of Judge Peters seems to have
been vibrating between wages and salvage. Sometimes he
calls the claim by one name and sometimes by the other. It
seems to me that the seamen, in these cases, have two dis-
tinct claims, one for wages and another for salvage. Their
wages are to be paid exclusively from the materials of the

142 DISTRICT COURT,

The Dawn.

ship, they being pledged for that purpose, and the full
amount due is to be paid without deduction. But they have
no claim for wages against the cargo, except for the freight
due upon it. Their claim for salvage is against the general
mass of the property saved, and, as in all cases of salvage,
the amount is uncertain, depending upon the particular cir-
cumstances of the case.

Upon the whole, after the best consideration that I have
been able to give to the subject, it appears to me that on these
melancholy occasions the crew are bound to remain by the
vessel and contribute their utmost exertions to save as much
as possible from the wreck ; that if this is done they are al-
ways entitled to their full wages if enough is saved for that
purpose ; but if they abandon the wreck and refuse to aid
in saving it, their wages are forfeited. But that they may
not rest satisfied with saving what is merely sufficient to pay
their wages, and may be induced to persevere in their exer-
tions so long as the chance of saving anything remains, the
law, from motives of policy, allows them, according to the
circumstances and merits of their services, a further reward
in the nature of salvage. The wages are to be paid exclu-
sively from the materials of the ship, but the salvage is a
general charge upon the whole mass of property saved. I
is not, however, intended to be said that they can claim as

•

general salvors, that is as persons who being under no obli-
gation to the ship engage in this service as volunteers, or
that they are entitled to be rewarded at the same liberal
rate. Such a rule might sometimes increase the hazards in-
stead of contributing to the safety of commerce. A crew,
who had from any cause become dissatisfied with their offi-
cers or owners, might be willing to see the vessel placed in
danger, at the risk of some personal peril to themselves, in
the hope of obtaining a large reward for rescuing her. But
they are to be allowed a reasonable compensation pro opera
ei labore, as the rule is laid down in many of the old ordi-
nances boiii viri arbilrio. If the disaster happens in a for-

MAINE, 1841. 143

The Dawn.

eign country, it ought to be at least a sum sufficient to pay
the expenses of their return home. Such, I think, are the
principles of the general maritime law. And if they have
not been directly, and to their full extent, sanctioned by any
judicial decisions in this country, the reasoning of the Courts,
in the cases which have been cited, appears to lead to the
same conclusion.

But it was contended at the argument, whatever may be
the doctriues of the general maritime law on this subject,
that it has been superseded in this country by the acts of
Congress, which provide for sending home destitute seamen
from foreign countries, at the public expense. The argument
proceeds on the ground that the only motive for this allow-
ance is, to furnish the seamen the means of returning home.
But the maritime law, as we have seen, places it upon a
broader foundation, that of general commercial policy, as
well as the intrinsic equity of the claim. It never could
have been the intention of these statutes, made for the ben-
efit and relief of seamen, to abridge any of the rights derived
from their service under the general maritime law. They
have their origin in a great principle of public policy, that of
preserving to their country the services of this most useful
but most improvident and often destitute class of citizens.

The case at bar was not one of absolute shipwreck, but
rather what has been called semi-naufragium. This vessel
was brought into port in so damaged a condition, and requir-
ing sa large an outlay in repairs to refit her for sea, that for
the interest of the owner she was sold as a wreck. Between
the owners and the crew she must be considered, for the pur-
poses of this case, either as a wreck, or not a wreck. Upon
the latter hypothesis the sale must be considered as voluntary,
and then the two months wages, under the statute, will be
due. On the other, the principles of the maritime law will
apply. Between the owners and the crew, it appears to me,
in the present case, that the true measure of justice will be
to consider her to be what the owners treated her as being, a

144 DISTRICT COURT,

The Dawn.

wreck. And as the libellant faithfully performed his duty,
fSO long as his service was required, he is entitled to the ben-
efit of the rule, that in addition to his wages the master shall
provide for his expenses home. I shall allow for this pur-
pose one month's additional wages.

Jfote. — It is impossible now to determine the precise date of the first
pnblication either of the Judgments of Oleron, or of the Consulate. The
•eommon opinion is, that the Consulate is the oldest. But we think that
Pardessus, afler a very full and elaborate examination of all the eyidence
pn the subject now existing, has shown, not {>erhaps to a certainty, but with
a high degree of probability, that the original articles of the Laws of Ole-
ron, that is \he first twenlf-fivt^ were promulgated, and in force, as cnttoma-
vy law, long before the existence of the Consulate, in the form in which we
now have it. The other articles were added aflerwards, at different tines
^nd in different places.

It is said by Cleirac, in his preface to the Judgments of Oleron, that they
.were established by Eleonora, Duchess of Guienne, on her return from the
Holy Land, and were aflerwards republished and augmented by her son,
Richard I., of England, on his return from the same country. This would
<arry back the first publication to 1152, and the republication to 1192. Clet-
«ac cites no authority for his statement, but gives it, apparently, as the
iCommonly received opinion of the time ; and, on his authority alone, it has
l>9en repeated by succeeding writers. His work was published in 1647, five
centuries afler the supposed establishment of this code by Eleonora. It is
abundantly shown by Pardessus, in his introduction to these laws, that the
story of Cleirac is a fable. For instance, Richard did not return from the
Holy Land by the way Aquitaine. He was shipwrecked on his return, at
Aquilea, seiied and confined as a prisoner by order of the Emperor, Henry
VI., from December, 1192, to 1194; and there seems to be about as little
reason for believing that these laws were originally framed by Eleonora, as
-there is that they were republished by her son.

Pardessus supposes that the first publication of these laws was in the lat-
ter part of the eleventh century, and before the year 1200. But the first
certain evidence we have of their existence, is in 1266. They were then
translated by order of Alphonso X ., King of Castile, incorporated into a
code under the name of Partidas^ and ordered to be observed in all suits be-
tween navigators. Pardessus^ Lois MaritimeSf vol. 1, page 201. They must
have been in existence for a considerable period, and have acquired an ex-
tensive authority as a common law of the sea, before they would be formally
adopted into the legislation of another country.

It seems to be equally uncertain where they were first promulgated. All

MAINE, 1841. 145

The Dawn.

the editions bear the attestation, fFUness tht Seal of the Isle of Oleron^
1266; bat as they were certainly published before that time, this is probably
only a notarial certificate of a copy taken from one in the pablic archives of
that place. They bear no internal marks of having been originally made
at Oleron, and they in fact constituted the common law, not only of the
ports of Aquitaine, to which Oleron belonged, but of the ports of Brittany,
Normandy, and the whole western coast of France.

There is quite as much uncertainty as to the precise epoch of the appear-
ance of the Consulate of the Sea. It was probably sometime in the four-
teenth century. The first document in which it is mentioned is an ordi-
nance of the magistrates of Barcelona, in 1435. Some of the editions of the
Consulate contain a document which declares that it was adopted as law by
the public authorities of a large number of states on the Mediterranean sea,
commencing with the year 1095, and ending in 1270. But this document is
manifestly spurious.

The original Consulate was written in the Romanesque language, a dia-
lect of the Provencal and Catalan, which was the common language of the
southern coasts of France and Spain. It may, therefore, safely be presum-
ed that it had its origin in one of these countries, and probably the author, or
authors, if there were more than one, belonged to Marseilles or Barcelona,
as the usages, moneys, and measures mentioned in the Consulate were com-
mon to these two ports. But the work itself shows that it was not all pro.
duced at once, but additions were made from time to time. Fardessus thinks
that the probabilities are in favor of Barcelona ; the language in which it
is written is in fact still spoken in that part of Spain.

In comparing the Roles of Oleron with the Consulate, one can hardly
doubt that the former are the more ancient. They have all the marks of a
primitive compilation, a first rude and imperfect essay towards a digest of
the Jaw of the seas. The whole of the primitive Roles is comprised in
twenty-five short articles, treating but few subjects, and those in a style of
great simplicity, with very little development. But the Consulate is extend-
ed to two hundred and fifly-two chapters, and was evidently intended as a
complete and systematic digest of the whole law, as far as it was \hen es-
tablished in practice. Principles are largely developed, with distinctions and
limitations, showing that the law must then have arrived to a state of great
maturity. Most of the original articles of the Laws of Oleron are found
in the Consulate, and some of them in the sime words. Cleirac has infer-
red from this fact that the compilers of the Laws of Oleron borrowed from
the Consulate. But if they had possessed this rich and copious collection,
is it probable that they would have confined themselves to so small a number
of articles ? It is scarcely credible that they should "not have taken more.
Besides, when the articles of Oleron appear in the Consulate, they are
found improved and more fully developed, showing that they were probably
borrowed from that source, and were altered and amended to conform to the

146 DISTRICT COURT,

The United States 9, Bradbarj et al,

jnrispradence of that time. The Consulate most have been written at a
time when the science of maritime law was in a mach more advanced state
than it was at the era of the Roles of Oleron. Pardessus has shown, in his
introduction to these two compilations, that the Consulate must have been
nearly two centuries posterior to the Roles. Many, however, of the laws
and customs from which the authors of that work have derived their mate-
rials, may have existed, and probably did exist, as customs in the Mediter-
ranean, before the epoch of the Laws of Oleron.

THE XJNITED STATES versus BRADBURY bt al.

When a debtor owing another several sums and on various accouDts •
makes a payment, he may appropriate the payment to which debt be
pleases. If he does not make the appropriation, the creditor may.

If neither party makes an appropriation at the time of payment, the law
intervenes and makes the appropriation.

In open and running accounts, the law appropriates a partial payment to
extinguish the oldest item in the account

When an appropriation is made by a receiptj prima facie it is the creditor
who makes it, because the language is his.

By the Roman law, when no appropriation of a payment is made by ei-
ther party, the law applies it to the extinguishment of that debt which
will be most beneficial to the debtor.

June Term, 1841. This was an action of debt on a bond
given by William Bradbury, late Postmaster at Levant, with
sureties for the faithful performance of the duties of that of-
fice, dated January 26, 1838. The bond was in the penal sum
of $500, with the condition, among other things, that **he shall
pay the balance of all moneys that shall come to his hands for
the postage of whatever is by law chargeable with postage, in
a manner prescribed by the Postmaster General for the time
being; and shall account with the United States for all mon-
eys, bills, bonds, &c., which he shall receive for the use and
benefit of the General Post Office," then to become void. It
appeared in the case that Bradbury had been appointed post-

MAINE, 1641. 147

The United SUtes o. Bradbarj et al.

master as early as 1831. In January, 1838, in conformity
with the act of Congress of 1835, ch. 270, § 37, he was re-
quired hy the Postmaster General to give a new bond, which
is the bond in question. At the time of its execution he was
indebted, for arrearages of postage, to the amount of $46560,
and on the same day when the bond was executed, he paid
the sum of $22791, and took a receipt therefor, in the fol-
lowing words : " Mail Route No. 93. Received this twenty-
sixth day of Jan'y) 1838, from William Bradbury, Postmas-
ter at Levant, State of Maine, two hundred and twenty-sev-
en dollars and ninety-one cents, being the amount due from
him to the United States for the quarter ending December
31, 1837, as shewn by his account current, including all pre-
vious dues, back to October 1, 1836." The receipt was print-
ed, except the filling up with the name, date and sum, and
the last words, back to October 1, 1836, which were added
to the printed form with a pen. Bradbury remained post-
master until the close of the quarter ending September 30,
1838, when his account terminates. From January 1st to
September 30, he is charged with three quarters of postage,
amounting $157, and he is credited with three .payments,
made April 6, July 7, and October 8, meeting the three quar-
terly debits precisely in amount, excepting the first, when the
payment is nine cents less than the debit. The balance due,
on the whole account, is $237 78. The receipts taken for
the last thre^ quarters were in the same form with that above
copied, with the exception of the additional words at the
close — back to October. The jury, under the direction of
the Court, returned a verdict for the penally, and now a mo-
tion was made by the defendant's counsel to set aside the
verdict and grant a new trial for misdirection of the Court
in matter of law.

The case was argued by flbZmc^, District Attorney, for the
plaintiffs, and by C iS^. Daveis^ for the defendants.

148 DISTRICT COURT,

The United States o. Bradbury el aZ.

Ware, District Jvdge.

The instruction to the jury was, that when a debtor makes
payment to a creditor, to whom he is indebted in several
sums and on various accounts, as by note, bond, and book ac-
count, he has a right to direct to what account or what debt
the payment shall be appropriated. This is a rule which
arises out of the nature of the act. The payment is the act
of the debtor, and he has a natural right to determine the
quality of his own act, that is to make the appropriation of
his own money. If the debtor pays generally on account,
this right results to the creditor ; he may then make the ap-
propriation, and apply it to the payment of which debt he
chooses. But the imputation, whether made by the debtor
or creditor, must be made at the time of payment; in re pre-
sently hoc est statinij atque solutum est Dig, 46, 3, 1. If
not then made, it is not permitted to either party to go
back afterwards and apply the payment, but the law inter-
venes, and makes the application according to its own no-
tions of justice, between the parties. In cases of open, run-
ning accounts, where there have been a number of succes-
sive charges and payments, from time to time, if neither of
the parties has imputed these payments to extinguish any
particular charges in the account, the law applies them to the
payment of the debits in the order of time in which they stand
in the account, each payment being appropriated to the ex-
tinguishment of the oldest charge on the debtor side of the
account. Such was the direction to the jury, and, as
a general rule, this is too well established to be brought into
doubt. U, S. vs. Kirkpatrick, 9 Wheat, 720. Postmaster
General vs. Furber, 4 Maso?i, 333. U, S. vs. Wardwell, 6
Mason, 82. Clayton^ s case, 1 Merivale, 572.

The Roman law, from which our rules for the imputation
of general and unappropriated payments are in part derived,
looks generally to the interest of the debtor, and is governed
by what may be presumed to have been the will of a prudent

MAINE, 1841. 149

The United States v. Bradbarj el al.

and discreet man, if his attention had been particularly call-
ed to the subject; quod vcrisimile videretur diligentem cfe-
bitorem admonitu ita suiim negotium gesturum fuisse. Dig,
46, 3, 97.

When there were several debts, and the pajrments were gen-
eral, the law imputed it to a debt which the debtor owed on
his own account, rather than to one for which he was liable
as surety; to one which bore interest, before one which did
not ; to a debt secured by mortgage or by sureties, rather than
to one which was not; to one having a penalty attached to
it, rather than to one which had none, and generally to ex-
tinguish the debt which was most onerous to the debtor. It
pioceeded upon this principle, that, as the right of mak-
ing the appropriation belongs of right to the debtor in the first
instance, when none is made by either party and it is left to
be made by the law, that ought to look to the supposed will
of the debtor rather than that of the creditor. But if the
debts were all of the same character, this preference was aban-
doned ; for though the debtor, on some accounts, may have
an interest in extinguishing the more recent rather than the
more ancient debts, the law adopted the more equitable rule
between the parties, and applied the payment to the oldest
Si nihil eorum interveniaiy vettistior contractus ante solvitur.
Digest 46, 3, 97 and 5. Pothier des Obligations, No. 565,
671. TouUier, Droit CivU, Vol 7, Nos. 173, 186. In this
rule, therefore, the common and civil law agree, and the rule
itself has its foundation in principles of natural justice. There
was then no error in the instruction given to the jury in lay-
ing down the principles of law applicable to the general
question, independent of the specialties belonging to the par-
ticular case.

The only question which can considered as fairly open, is
whether there is in this case such an appropriation, of the
payments made by the debtor, as will take it out of the com-
mon rule. It is contended that there was, and that this as a

150 DISTRICT COURT,

The United States v, Bradbury et al.

fact may be justly inferred from the circumstances under
which the payments were made, and from the receipts which
were taken.

The bond bears date January 26, 1838. Bradbury re-
mained postmaster for three quarters after ; and at the end
of each quarter paid the amount of postage which had ac-
crued during the quarter, and took a receipt for the sum,
which described it as " being the amount due from him to
the United Slates for the quarter ending, &c., as shown by
his account current, including all previous dues." It is ar-
gued that this receipt makes an appropriation of the payment,
first to extinguish the debt which accrued the past quarteti
and that the excess only, if any there were, was to be appli-
ed towards paying the old balance; and that such was the
intention of the debtor is a just inference from the fact that
each payment was the precise amount of postage which
had accrued during the preceding quarter. Undoubtedly it
was the right of the defendant to have the money so applied,
if he chose to make the application. But to carry this inten-
tion into effect it must be made known in a clear and intelli-
gible manner, either by positive directions or by circumstan-
ces equivalent to a direct order. The fact that the payments
were in each case precisely equal to the postage of the pre-
ceding quarters does undoubtedly raise a strong presumption
that they were intended to be applied to the extinguishment
of that part of the debt In the case of MarryaM vs. WhUe^
2 Starkie Rep. 101, Lord EUenborough seemed to consider
this circumstance as conclusive in a case which in its leading
features resembles the present That was an action on a prom-
issory note, against the surety, given to secure the paym^it
for flour to be afterwards delivered to the principal on the
note. He was at the time indebted to the plaintiff for goods
previously delivered. There was, therefore, an open running
account By the usage of trade a credit was allowed of three
months, and if pajrment was sooner made, the debtor was
entitled to a discount Lord EUenborough observed " that

MAINE, 1841. 161

The United SUtes v. Bradbury et al.

the payment of the exact amount of goods previously deliv-
ered, is irrefragable evidence to show that the sum was in-
tended in payment of those goods, and the payment of sums
within the time allowed for discount, and on which diseowU
has been allowed^ affords a strong inference, in the absence of
proof to the contrary, that it was made in relief of the sure-
ty."

It will be observed that this case, in one important cir-
cumstance, differs from the case at bar. A discount was, by
usage, allowed when payment was made before the expira-
tion of the credit, and on some of the payments a discomit
was, in fact, allowed. This conclusively proved that the
imputation was to the new, and not to the old debt ; because
if it had been applied to the old account no discount could
have been claimed. Two circumstances here concurred to
indicate the intention of the debtor, but one of which exists
in the present case. That, it is true. Lord Ellenborough
seems to have considered as conclusive when standing alone
and unconnected with any circumstances contributing either
to confirm or weaken the presumption.

As a universal proposition, this will perhaps be found to
be not wholly free from difficulty. But in the present case
it does not stand alone ; a receipt was taken, and an appro-
priation of the payment may be made by the form of the re-
ceipt 2 Vernon JR. 607, Manning vs. Westeme. Does
this receipt, in its legal construction, make the appropriation
which is contended for 1 In its terms it professes to be for
the amount of the last quarter, including the previous dues.
This form of expression seems to contemplate the whole debt
due as one mass, and to impute the payment to the aggre-
gate. The language of the receipt also implies that it is in
satisfaction of the whole debt, the old balance, if any there
was, as well as the last quarterly charge. It appears to me
that the legal and proper import of the words renders it a
payment on the general account ; and if so, the law applies

152 DISTRICT COURT,

The United States v. Bradbury ct al,

it to extinguish the oldest debits, leaving tlie last quarter un-
satisfied.

But if tlie receipt admitted the construction for which the
defendant's counsel contends, it would not relieve his case.
When the appropriation of a payment is make by a receipt,
it is by the creditor and not by the debtor that it is made.
He executes the instrument, and the words are his. If the
debtor objects to the appropriation, he may require a receipt
in a different form, or he may by his own act impute the
payment to the extinguishment of a different debt ; for he is
not bound, provided he objects, by the imputation of the
creditor. But he must object at the time, and if he takes
it without objection he will be considered as consenting to
the application made by the creditor, and it will be binding
upon him unless he has been overreached by fraud or sur-
prise. Pothier des Obligations^ No. 566, Pari 3, Ch, 1,
Art, 8. Now, if it had been the intention of the agent of the
post otfice to impute the payment to the last quarter, to the
exclusion of the antecedent balance, and this had been done
in terms ever so precise, it would not have been binding on
the United States, because it would have been in direct op-
position to the law. Nothing can be clearer both in princi-
ple and authority, than that a public agent, acting under the
authority of law, cannot bind the government when he ex-
ceeds his powers, or when his act is repugnant to the law.
Johnson vs. United States, 5 Mason, 425. The agent who
gave the receipt had no authority to impute the payment to
any particular part of the debt, for this had been already
done by law. By the act of July 2, 1836, ch. 270, '^ 37, it
is provided, when a new bond has been given by a postmas-
ter, and there is an unpaid balance remaining agamst him,
" That payments made subsequent to the execution of the
new bond by said postmaster, shall be appUed first to dis-
charge any balance which may be due on the old bond, un-
less he shall at the the time of payment expressly direct
them to be applied to the credit of his new account" The

MAINE, 1841. 16S

The United States v. Bradbury ei aL

M)Dstruction of a receipt is therefore wholly immaterial, un-
ess it be shown by other evidence that a receipt in this form
nras specially required by the debtor, or that the appropria-
tion might be considered as his act. But there was no evi-
lence of this kind in the case. In whatever point of view
this case is considered, it appears to me that judgment must
be for the United States.

Another question remains, and that is, for what sum the
parties on this bond are liable. The whole balabce due and
aow claimed is $ 227 78. If the payment made at the time
when the bond was executed be imputed upon the debt
which accrued back to October, 1836, then the whole of the
old balance will be of more than two years standing, and by
ihe act of Congress of 1825, ch. 275, $ 3, (Story's edit) the
sureties of a postmaster are not liable for any default which
occurred more than two years before the suit was brought.
This period of limitation had passed before the date of the
writ. The receipt expressly imputes the payment upon that
part of the debt But, as has been already observed, when
an appropriation is made by a receipt, it is, prima facie, the
act of the creditor. It can only be construed to be the act
of the debtor when it appears by other evidence that he re-
quired the receipt in that particular form. But if it be taken
as the act of the agent of the General Post Office, he had no
authority to make the appropriation. It was already made
by a general law. The bond however by its terms is made
to operate only prospectively. The condition is that "if the.
said JBradbury shall well and truly execute the duties of said"
office, &c., and shall pay the balance of all moneys that
shall come into his hands. &c., and shall faithfully account
with the United States for all moneys, &c., which he shall
receive, &c." The bond, therefore, can have no retroactive
eftct to render the parties liable for antecedent defaults.
Now, the whole amount of postage which accrued, after the
date of the bond, was $157, and for this amount, and this
only, are the parties in this action liable.

154 DISTRICT COURT,

ThB United State* >. The InhsbiUDU of Walartioioiigh.

Judgment for the penalty, and execution to be issued foi
$IB7 and interest from the date of the service of the writ,
December 31, 1839.

THE UNITED STATES versus THE INHABITANTS
OP WATERBOROUGH.

A fiwduletitly obtsined a pension from ihe United State*, and B receiv-
ed the money u the agent or A, and retained 9300 u a compeosodoB
for ^ding in obtaining the pennon. The tovra of Waterborough hav-
ioft a claim sgaioit A, the peDsioner, for support as a pauper, com-
menced an actioD ngaioBt him to recorer it, and nimmoDed B as gar-
nishee, the town having notice of the fiaud in obtainbg the certifieaK.
The suit WBB compromiBed by the pajmeot of s corhun sum. Held,
that the United Btatea might recover of the town the amount they re-
ceived in an action for money had and received.

Wlien ptxtpeiqr is transferred, which is subject to a. lien, or is aSbcted
nitfa a trust, milk nolkt, the lien, or trust, follows it into the hands of
the assignee, and remains attached to it as long as the identic of
the thing continues.

The identity of « sum of money, era debt due, does notesist in the |nee«
of coin, hut in the fbnd. If it is affected by a trust, it nmy be ftUvH^
ed as long as the identity of the limd can be traced, and wboever ra-
ceivBs it, with notice, will be affected by the trust

September Term, 1841. This
sit, for money had and received,
facts. One Susannah Brown,
had applied for, and obtaini
as widow, of Flood, her
tionary soldier. She ei
her husband, lo
sioa was obtained
with her consent
sation and m

sst -i .twr xitcTiM. Riin -.w i<vi-
tbtQBHwfbm tliKMini-
HiL !■< M«K« that It
{tM tl WU nnl
NiMr iiHDirjr vr

igh iIh> idnitKtl
htd nni bmi
UniRCtigMnwl

•y hid ■ttnrtllv

166 DISTRICT COURT,

Hie United Statei «. The Inhabitanta of Wateiboroii|[l^.

misdirection of the judge in matters of law. It was argued
by Holmes^ District Attorney, for the plaintiffs, and by Ap-
pleton, for the defendants.

Ware, District Judge.

The ground on which it is sought to charge the defi^dants
in this case is, that the money paid to them by Nathaniel
Brown, on the trustee process, was part of the same money
which was received by him of the plaintilSfs, for the pension
of Susanna Brown. While that was in Nathaniel's hands,
there does not seem to be any good reason for questionii^
the plaintiff's right to recover it back. He received it as the
agent and attorney of the pensioner, and holding it for h^,
the plaintiffs would have the same right to recover it from
him as they would from the pensioner herself. She had
clearly no legal or equitable right to retain the m<mey. It
is altogether immaterial whether it had been obtained by
fraud and deceit on the part of the person receiving it, or
had been paid under an erroneous opinion of both parties,
innocently entertained, that she was legally entitled to it In
either case, it might be recovered back as money unduly paid,
or as money paid that was not due. The private agreement
between the pensioner and her agent, that he might retain a
part of it as a reward or compensation for his services, could
not affect the rights of the plaintiffs. They were strangers
to any considerations of that kind, and this was an affair
that must be settled between the principal and her agent.

If it might be recovered from Nathaniel Brown, why may
it not from any one into whose hands it hsis passed, with no-
tice of the infinnity of his title. The maxim that no one can
transfer a better title than he possesses himself, — nemo plus
juris in cdium trans ferre potest quam ipse haberet, — applies in
all its force, both in law and equity, when the assignee takes
the thing with notice of the infirmity of the title of the assign-
»or. As the defendants were apprised of the circmnstances un-
der which the money was obtained, and of the equitable

MAINE, 1841. 157

The United Steles o. The Uhabitento of Waterboioo|rh.

claim which the plaintijffs had to recover it back, they can
have no better right to retain it, against the party from whom
it had been unduly obtained, than Brown himself. Suppose,'
instead of money, it had been a chattel or a quantity of mer-
cbandise, and this had been transferred to the defendants,
with notice that it had been delivered to Brown by mis-
take, or that the plaintifl^ had been circumvented by firaud.
There can be no doubt that the plaintifiis could recover either
the property itself or its value.*

Indeed I did not imderstand it to be denied at the argu-
menl, that the plaintiffs might have recovered, provided the
identical pieces of money which Brown received of the plain-
tiffi had been paid over to the defendants. But it was argu-
ed that the suit could not be maintained unless the identical
thing could be traced into the defradant's hands. If it should
be admitted that this would )>e necessary in an action of tro-
ver,! i^ ^iW Jiot follow, as a matter of course, that this is
essential to maintain the present action. The action for
money had and received, is an equitable action, and lies in
abnoet all cases where a party has received money which
ex €Bquo et bono he ought to refund, or pay over to the person
who is entitled to it 3 Black. Comm. 163. The suit is not
to recover the possession of any particular pieces of money,
but so much money, belonging to the plaintiffs, as the defend-
ants had received and withhold against equity and good
conscience. The real question then in this case is, whether
the money, which the defendants received of Nath'l Brown,
was the plaintiffs' money ; that is, whether in the legal sense
of the words it was part of the pension money of Susanna
Bsown. If it was, then it was taken subjec\ to all the legal
and equitable claims which the plaintiffs had against it
while it was in his hands ; for as they had full notice of these
daims, they succeeded only to his rights.

* fioffiingtoB V. Gerrieh, 15 Mass. Rep. 156.

t MftMn V. Waite, 17 Mass. Rep. 560. Bat see Viner's Abr. Action TroTer
R. fiaeoii*s Abr. Trorer D. Chitty's PleadiDg, 149.

168 DISTRICT COURT,

The United SUtes «. The inhabitanUi of Waterboroaf h.

The facts proved in the case are, that after Nathaniel
Brown had received the pension, and while he still retained
in his hands about two hundred dollars of it, the defendants
in this action commenced a suit against Jeremiah Brown, his
father and the husband of the pensioner, for money expend-
ed by them for the support of him and his wife, as paupers,
and summoned Nathaniel as his trustee. Whatever money
of his father's Nathaniel had in his hands, was attached by
that process to answer the defendant's claim. But it has not
been pretended that he had in his hands any money to which
his father had a claim, unless it was that which he received
for the pension, or that he was indebted to him on any other
account. It was on the ground of his having that money,
and to obtain it as money belonging to his father, that he was
summoned as trustee. If any thing was attached, it was then
this money, and it was this that was intended to be attached.
The suit was not prosecuted against the trustee, but was com-
promised by the payment of part of the sum claimed. The
payment was an admission on the part of Nathaniel that he
had money of his father's, to that amount, in bis hands. If
he had, what money was it, and from whence was it receiv-
ed? Certainly it was that which he received for the pen-
sion, for there is no pretence that he was indebted to his fa-
ther on any other account. The payment was then from this
money ; not indeed made in the same pieces which he had
received, but from that fund. Why then was it not, in a le-
gal sense, part of that money ? The identity of money con-
sidered as a debt due, or a credit, that is, as a general value
in account, does not consist in the identity of the coins or
pieces, but in the identity of the fund. If Nathaniel had
been indebted to his father on several accounts, he might
have imputed this payment to either of the accounts he pleas-
ed. It would then have been payment from that fund to
which it was imputed, and would have reduced that debt in
his account, and that credit in his creditor's, to the amount of
the pajrment As he owed but a single debt, it must be im-

MAINE, 1841. 159

The United States o. The InhabiUnts of Waterborongh.

pated to that. It reduced his father's credit so much, and' of
course it was a payment from that fund ; and it passed into
the hands of the defendants with notice of the claim which
the plaintiffs had against it. Why then should this transfer
withdraw it from the claim of the plaintiffs, and defeat their
right to recover it ? Certainly no reason can be given which
has its foundation in justice, nor does any occur to me de-
rived from positive law or public policy. When property
of any description is transferred from one to another, which
is affected by a trust, or upon which auy lien exists in favor
of a third person, and the person to whom it is transferred
has notice of the fact, the trust or lien will follow it into his
hands. The assignee will be bo\md by the trust. The
property vrill be subject to the lien, to the same extent as be-
fore the transfer was made and the possession changed. The
assignee will merely succeed to the rights of the assignor,
and will be subject to the same duties and liabilities with re-
spect to the property. This is not only a principle of natural
justice, but one that is familiarly enforced by Courts of Equi-
ty, in a great variety of cases. 1 Slory^s Equity, $ 533. If
this is a rule with respect to specific property, as real estate or
chattels, it is no less^just that it should be applied to money,
80 long as its identity is preserved; and its identity as money
is preserved so long as it can be followed and distinguished
from all other money, not regarding the individual coins or
pieces of money, but so long as it can be followed as a sepa-
rate and independent fund or value, distinguishable from all
other funds.

This principle was acted upon by the Court of King's
Bench, in the case of Taylor et cU., assignees, vs. Sir
Thomas Plummer, 3 Maid, and Selw., 562, after a very
full and elaborate argument. Sir Thomas Plummer had
placed in the hands of a broker, £22,200, to be invested for
him in Exchequer Bills. Part was invested, and the bills
delivered. The residue, the broker invested in American

^60 DISTRICT COURT,

The United States v. The lBhii>itaiU8 of WaterbaBov^h.

Stocks and bullion, intending to abscond with them, thus con-
verting the money to his own use. He was arrested, and the
stocks and bullion obtained. It was contended that the prop-
erty having been wrongfully converted by the bankrupt to
his own use, it became incorporated into the general mass of
the bankrupt's property, and passed to his assignees as part
of the assets of the bankruptcy. But the Court decided that
the money having gone into the hands of the brdker covered
with a trust, notwithstanding any change it had undergone
in form, that it remained affected by the trust, and the lien
of the owner continued as long as the property was capable of
Jl)eing identified and distinguished from all other property. The
argument that the owner loses his right to follow his prop-
erty after it has been tortiously converted into another form,
is unfounded in principle and unsupported by authority. It
being proved that the stocks and bullion were purchased witli
the money of Sir Thomas, it was decided that he was euti-
fled to hold them against the assignees.

Upon the whole, after the best consideration that I have
been able to give to the case, it appears to me that the money
which Nathaniel Brown paid to die defendants was, in the
legal sense of the words, part of the mdhey which he receiv-
ed of the plaintiffs for the pension of Susanna Brown. It
was paid to them with notice of the infirmity of his title,
and of the claim which the plaintiffs might have against it,
and they therefore merely succeeded to his rights, and it is
in their hands equally subject to repetition as it would be in
hands of the pensioner herself, or of her agent.

Judgment for the Plaintiffs.

MAINE, 1841. 161

The Waldo.

THE WALDO.

The master of a vessel is bound to secure the cargo under deck. If he
carries goods on deck they are at his own risk, and if they are lost or
damaged he cannot protect himself under the usual exception of the
dangers of the seas, — at least, unless the accident by which they are
lost would have been equally fatal if diey had been under deck.

A shipper, whose goods are lost or damaged by the fiiuh or neglect of
the master, has for his damages a remedy against the owners, and a
lien ou the ship.

But it is only those acts ef the master which are within the scope of his
duty as master, that bind the owners and create a lien on the ves-
seL

If the shipper consign his goods to the master for sale, the master, in all
that relates to the safe stowage and transportation of the goods, acts
in his quality as master. He is the agent of the owners, and his acts
bind the owners of the ship.

But in what relates to the sale and disposition of the goods, after they
are carried to the port of destination, he acts as agent of the shipper,
and neither the owners nor the ship are responsible.

December Term, 1841 . This was a libel in rem, brought
for the non-performance of a contract entered into with the
master by a bill of lading. The libellant shipped at Bath,
on board the schooner Waldo, bound for Atakapas in Lou-
isiana, 144 barrels of potatoes, to be delivered at that port,
at the freight of fifty cents a barrel, and consigned to T. H.
Merrill, the master, who signed the bill of lading. It is in
the common form and is dated November 23, 1840. The
potatoes were stowed on deck and well secured there and cov-
ered with boards. About the time they were laden, the master
was taken sick and unable to go the voyage, and after the
vessel was prepared for sea, she was delayed some days be-
fore another master was engaged. She sailed December 2,
under the command of W. C. Wyman, the new master.
A few days after leaving port, they met with heavy gales.
The sea run high, and broke over the vessel, and wet every

162 DISTRICT COURT,

thing that was exposed to the water on deck. When about
ten days out, the weather having become more moderate, the
potatoes were partially overhauled, and found to be wet, and
many of them rotten. On their arrival at Key West, there
was a more thorough examination ; the rotten potatoes were
separated from the sound and thrown away, and forty bar-
rels of sound ones were repacked. With these, and forty
barrels more, which had not been examined, they sailed for
Atakapas. When they arrived there, it was found that all
the potates were rotten and spoiled, except fifteen barrels,
which were sold at two dollars a barrel, and pay taken in
molasses. On the return of the vessel, no account of sales
was rendered to the shippers, and this libel was brought
against the vessel for the non-performance of the contract.

It was argued by SewaU and Howard, for the libellant, and
Qroton, for the respondents.

Wabe, District Judge.

In a contract, by a bill of lading, for the transportation of
merchandise, the master and owners of a vessel take upon
themselves the responsibilities of common carriers. Thejr
can excuse themselves for the non-delivery of the goods, on-
ly by showing that it was prevented by some fatal accident,
against which human prudence could not provide, by an
act of the public enemy, or by some event expressly except-
ed in the instalment itself. 3 Kent's Comm. 2Iti. The maa*
ter is bound to take the greatest care of the goods, so tbU
they shall not be liable to injury by the motion o
the vessel, or exposed lo damage t
Shipping, 224. in respect botli to tl
of the goods, he is chargeable with d
In ail cases he is bound l
der deck, unless he is author
usage, or by the consent
all other cases, if h

MAINE, 1841.

163

The Waldo.

his own risk, and he becomes an insurer against the usual
perils excepted by the bill of lading.

If the goods of the shipper are lost, or receive any dam-
age through the fault or neglect of the master or of the crew,
his remedy is not confined to a personal action against the
master or owners. The ship in specie stands as his security,
and is by the maritime law hjrpothecated to him for his in-
demnity. But then it is not every wrongful act of the per-
son who acts as master that will bind the owners, or will
operate an hypothecation of the ship. It is only those which
fall within the legitimate range of his authority, as master,
that have this effect. While acting within these limits he
binds the owners, because he is their authorized agent, and
he binds the ship directly, because the policy of the maritime
law has given to the shipper this additional security. The
duties of the master as carrier extend to all that relates to the
lading, transportation, and delivery of the goods. But when
they are carried to the place of destination and delivered, his
duties and responsibilities as carrier terminate. His functions
as master are then accomplished.

If the shipper consigns his goods to the master for sale
and returns, in proceeding to dispose of them he does not
act under any authority derived from his appointment as
master, but in an entirely new character, that of supercargo
or factor. And his duties and liabilities under these two
characters are as distinct and independent as they would be
if the trusts were confided to difierent persons. Stmry^iAgm-
cy2$36b lAvermm^€ntkeLawofAgeniandPrine^fal,vU8,

.that relateslr^' ^ansportation of the goodf
the "h^^^H \s master, and all ttist be
the l^V 4 rthe 2neichaixlia0^if/e-

J these chandns be is
JkAeSntbe kdie agent
an ioipiiii&b 19 cbem : in
and fhrf an no more
those of a

164 DISTRICT COURT,

Tlie "Waldo.

third person, to whom the shipper should consign his goods.
In the transaction of that business he is the agent of the
shipper.

In the present case, the goods of the libellants were con-
signed to the master, Capt Merrill. It is true that he was
prevented from going the voyage by sickness; but that por-
tion of the potatoes, which arrived at the port of destination
in good condition, were sold by the new master, not by vir-
tue of his general authority as metster of the vessel, but un-
der the authority of that consignment. In the sale, there-
fore, he acted as the agent of the libellants and not of the
ship-owners. It is clear, then, upon principle, that the
owners cannot be chargeable for so many of the potatoes as
were sold. With respect to them, all was done which the
master had contracted to do, as master. They were carried
to the port of destination and delivered ; that is, the master
had transported them as the agent of the ship-owners, and
he had sold them as the agent of the shippers. The pre-
cise question which arises in this part of the case, was pre-
sented in the case of Williams vs. Nichols^ 13 Wendell R,
68, and it was decided, on the grounds that have been stated,
that when goods are consigned to the master for sale, and he
sells them, and neglects to account for the proceeds, no action
will lie against the ship-owners. It is an aflfair exclusively
between the shipper and the master, to which they are stran-
gers.

If no action will lie against the owners in personam,
for an equally good reason none will lie in rem against the
vessel. It is only those acts of the master which come with-
in the scope of his duty as master, that bind the vessel.
When a new character is superinduced on that of master, by
his being made by the shippers the consignee of the cargo,
his responsibilities in this capacity are entirely distinct from
his obligations as master. In the latter case he is a common
carrier, in the former a factor. And for any want of fideli-
ty in that trust, his employers have the same remedies against

MAINE, 1841. 166

The Waldo.

him that they would have against any other person, and no
other. As consignee he neither represents the vessel nor its
owners.

Perhaps when by a known custom of a particular trade
the master is entrusted with the disposal of the cargo, a dif-
ferent rule may apply. This was the case in Kemp vs.
Coug/Unfj 11 Johns R. 107. That arose in the trade be-
tween New York and Albany. It was proved to be the usu-
al coiurse of the trade, to send goods with orders to the mas-
ter to sell either for cash or credit, and for him to return the
proceeds to the shipper. No commissions were allowed the
master for this service, nor to the owners, beyond what was
involved in the freight It was decided when the master had
sold the goods, and failed to pay over the proceeds to the
shipper, that the owners of the vessel were liable. The lia-
bility, in that case, was not founded on the general maritime
law, but arose out of the particular custom. Under that
custom the ship-owners undertook to act in the character of
factors, as well as carriers, and entrusting the whole busi-
ness to the master as their servapt, they would be answera-
ble for him personally in one character or the other. It is
another question, whether for his defaults in the character of
factor the shippers would have a remedy against the vessel
in rem, which it is unnecessary to consider in the present
case, as in this trade no such custom is proved. The case
of Emery vs. Hersey, 4 Crreenleaf, 407, turned upon the
same principles, and was decided upon the ground of a sim-
ilar custom prevaihng in the trade between Saco and New-
bnryport See also, Emerigon, Controls a la Grosse, Ch.
4| Sect. 11, and Des Assurances, Ch. 12, Sect. 3.

As to that portion of the potatoes which perished on the
passage, the evidence leaves no room for doubt that the loss
arose from the damage they received by exposure on deck.
They appear to have been as faithfully secured in that place
as they could be, but nothing could protect them from wet,
when the sea was breaking over the vessel. It appears prob-

166 DISTRICT COURT,

The Waldo.

able, also, that they were injured by the frost. The double
injury, of frost and wet, will in a short time destroy so per-
ishable an article as the potatoe. And it was accordingly
found, when they were overhauled at Key West, that out of
144 barrels examined, only 40 remained sound and fit for
use; and when they arrived at Atakapas there were but 15
sound and merchantable barrels left out of the whole 144.
They were undoubtedly lost by sea damage, and although
the damages of the seas are excepted by the bill of lading,
the master, by carrying the goods on deck, waives the ex-
emption in his favor, and takes the responsibilities of sea
damage upon himself; at least, of any damage that would
not have happened to them if they had been secured under
deck. It was the right of the shipper to have his goods stow-
ed under deck, and it was the fault of the master that they
were placed above. And it is a general rule, that a party
will render himself liable for loss or damage, to which
he would not usually be subject, by the law of the contract
when this loss has been preceded by some fault on his part,
without which it would not have happened. TouUier, Droii
Civile vol 6, No. 227. Pothier, Des Obligations^ No. 142.
Upon general principles, therefore, there is no room for
questioning the Uability of the master, and through him that
of the vessel, for the potatoes that were lost, unless the re-
spondent can bring the case within some special exception to
the general rule.

The defence set up in this case claims the benefit of such
an exemption. It is contended that the goods were carried on
deck with the consent of the shippers. This does not ap-
pear by the bill of lading. That is what is called a clean
bill; that is, it is silent as to the mode of stowing the goods,
and contains no exceptions to the master's liability, but the
usual one of the dangers of the seas. The usual, and only
safe mode of carrying goods, is under deck, and when the
contract is entered into, it is presumed to be the intention of

MAINE, 1841. 167

The Waldo.

the parties, that the goods shall be stowed and carried in the
usual way, unless there is a special agreement to the contra-
ry. This is a condition that is silently understood by the
parties, and implied by the law. A bill of lading therefore
imports, unless the contrary appears on its face,- that the
goods are to be safely secured under deck. The written
contract therefore not only fails to show any such consent,
but impliedly negatives it. 3 Kent. Com. 206. 3 Sumner
R. 405. Curtis^ Rights and Duties of Seamen, 212.

The respondents then proposed to prove this consent by
parol evidence. The general rule is, that parol evidence
cannot be received to contradict, vary or control, the effect of
a written instrument. It is true that the bill of lading does
not say, in express terms, that the goods shall be stowed un-
der deck. But this is a condition tacitly annexed to the con-
tract by operation of law; and it is equally binding on the
master, and the shipper is equally entitled to its benefit, as
though it was stated in express terms. The parol evidence
is offered then, to control the legal operation of the bill of
lading, and it is as inadmissible as though it were to contra-
dict its words.

But, admitting this rule of evidence, it is contended that
the bill of lading was executed under such circumstances
that it is not legally binding upon the master, as a written
contract The testimony is, that when he signed it, he was
confined to his bed by sickness, and was so feeble as to be
unable to sit up, but was supported by others while he wrote
his name; and that he had been delirious before, and was
after it was signed. The papers were brought to his house,
filled up, and ready for his signature. His friends objected
to his being called upon to execute them, on account of his
sickness, but when he was informed that the shippers were
in the house, and of the purpose for which they had come,
he said it was proper that the papers should be signed by
him, and they were accordingly brought to him and signed.
It is not pretended that he was in a state of mental aliena-

16a DISTRICT COURT.

The Waldo.

tion at that time. On the contrary, his physician, who was
present, states that he was in the possession of his faculties,
and that he perfectly understood the nature of the business
he was doing. The agreement had been made with the
shippers before he was taken sick, and he had himself di-
rected the manner in which the goods should be stowed. It
appears, that at the time when he executed the papers, he
recollected and understood what had been done.

Although, upon the whole evidence, it does not appear
that the roaster was laboring under such a degree of mental
debility as to be legally incompetent to an act of this kind,
yet it is true that he was in a state of extreme weakness,
with the powers of his mind probably enfeebled by disease.
And if there was anything in the evidence, which looked
like a design, on the part of the shippers, to take advantage
of his condition, and draw him into different engagements
from what had been understood and intended, I have no
question but it would be the right of the Court, and I think
its duty, to look into the matter with great care. A Court
of Admiralty is not, in such cases, governed by the narrow
doctrines of the common law, which will not allow a man
to plead his own disability, or, in the ungracious language of
that law, to stultify himself. Coke, Lilt, 247 a and b. 2
Black. Com. 291. 1 Stanfs Equity, § 225. But the only
circumstance that has the slightest tendency to awaken such
a suspicion is, that the shippers brought the bill of lading
ready filled up, and this alone, when the state of the mas-
ter's health is considered, would be a very narrow founda-
tion for supporting a charge of fraud. But still, under the
circumstances of the case, the Court may have a right to
look into the evidence, as it will probably be most satisfac*
tory to the parties that it should. It seems hardly proper for
a Court, which is, by the Constitution, required to decide be-
tween parties ex cequo et bono upon the most liberal princi-
ples of Equity, to close its ears against evidence on techni-
cal objections, if it be doubtful whether the objection be fair-

MAINE, 1841. 169

Tlie Waldo.

ly applicable to the facts; and being less restrained in its
course of proceedings by technical and arbitrary rales, it is
perhaps its habit to be less rigorous in upholding such ob-
jections.

I have therefore looked into the whole evidence to see if
there is any satisfactory ground of belief, that there was
any agreement or understanding between the parties that the
goods should be carried on deck. In the first place, it is to
be observed that the presumption in every contract of af-
freightment is, that the goods shall be sectired under deck.
It is for the master who would exempt himself from the
risks of a deck passage, to remove that presumption. The
ordinary and proper evidence would be a memorandum to
that effect on the face of the bill of lading. But in the pres-
ent case the only evidence, which has any tendency to prove
the fact, is the testimony of the mate and one of the crew.
The mate says that the libellants were on board the vessel on
the 23d of November, after the goods were laden ; that they
were then on deck, carefully covered with two thicknesses of
boards on the top and at the sides, and as well secured from
the weather as they could be in that situation, and that the
libellants expressed themselves satisfied with the manner in
which they were secured. On a further examination he said
that he did not understand them as expressing themselves
satisfied with the fact that the potatoes were on deck, but
only that he had done his duty in securing them well in that
place. The other witness said merely that they knew that
the potatoes were on deck, and made no objection to it. It
appears also, that when the bill of lading was executed, no
complaint was made to the master on this subject If this
evidence stood alone, it might justify the inference that the
shippers assented to their goods going on deck, and in that
case the risk of a deck passage would be shifted from the
master to them. But although there is no testimony direct-
ly contradicting it, there is evidence leading to an opposite
conclusion. The contract of affreightment was made sever-

170 DISTRICT COURT,

The Waldo.

al days before the goods were actually received and laden,
and the price of the freight settled. The potatoes were tak-
en by the master in his boats at Bath, and carried to Phips-
burg,|where the vessel lay, several miles from the residence
of the shippers. When they went to get their bill of lading,
the vessel was completely loaded and ready for sea, and it
was evident that the goods must go as they were, or not go
at all. Now there is no evidence that when the agreement
was made any thing was said of the goods being carried on
deck, or that any thing was said between the master and
shippers at any subsequent time. The bill of lading was
executed in pursuance of this previous agreement, and no
objection to it was made by the master. And if it be said
that the state of the master's health will account for his not
giving particular attention to the form of the bill of lading,
it will equally account for the shippers not making the lad-
ing on deck a matter of discussion at that time. Now it is
very material to be remarked that the full under deck freight
was agreed to be paid, and was secured by the bill of lading.
Certainly, it is not easily to be behevcd, that any prudent
merchant would consent to take upon himself all the risks
of a deck passage, after agreeing to pay full freight. The
most then that can be said of the parol evidence is, that
part of it leads to the inference that the shippers may have
consented that their goods should go on deck, and another
part, of quite as much stringency, leads to an opposite con-
clusion. Indeed, it seems to me that it would be putting the
case quite as favorably to the master as the facts would war-
rant, if it stood on this testimony alone, to say that it was a
balanced case. And then the common presumption which
arises in the absence of any special agreement, that the goods
are to be secured and carried in the usual manner, turns the
scale in favor of the shipper; because this presumption must
prevail until it is removed by the master.

There can be no doubt from the evidence, that the pota-
toes were destroyed by being wet by the sea breaking orer

MAINE, I84JL 171

The Waldo.

the deck of ihe vessel, and in part probably by being touched
by frost The bill of lading contains the usual exceptions of
the master's liability for the dangers of the seas. But, as has
been already observed, this will not excuse him if he carries
the goods on deck, unless the calamity by which they are
lost would have been equally fatal, if they had been proper-
ly secured below deck. But if this had been done it is plain
that they would have gone safely, as was the case with the
rest of the cargo. Some evidence was introduced to show
that potatoes are as liable to rot under as above deck. That
may be the case if the vessel has uniformly moderate and
dry weather, but it cannot be if they are exposed as these
were to wet and frost It is to secure goods from such dan-
gers, as well as for other reasons, that the master is required
to have the cargo put under deck. If after filling the hold
be chooses to encumber his deck with goods, in order to in-
crease the amount of his freight, he voluntarily assumes the
responsibility upon himself. The additional expected profits
of the voyage constitute the premium for the risk of the
deck load.

The damage which the libellants have sustained is the
value of the potatoes which were lost, at the port of delivery,
deducting the freight. The testimony of the mate is, that
the potatoes which arrived sound were sold for tmro dollars a
barrel; and 129 barrels, the amount that perished on the
voyage, after deducting 50 cents for freight, will amount to
$193 60; for which sum a decree is to be entered for th.^
libellants.

172 DISTRICT COURT,

Stinton v. Wymmn el U.

STIN80N VBB8XJ8 WYMAN vt al-

]^ the common law, the owners are reipoiiflible for all the obfigations
contracted by the master, whether arising ex contractu or ex dbiiefo,
within the scope of his authority as master, to their fiill extent

Bttt by the general maritime law of Europe, their liability for his obliga-
tions ex deticto is limited to the amount of their interest in die ship and
cargo, and by abandoning these they are discharged from all personal
responsibility.

The Revised Statutes of Maine, Ch, 47, § 8, (and the act of 1811, Ch. 14,
§ 8,) limit the responsibility of the owners <* for any embezzlenient,lofli,
or destruction, by the master or marinen, of any goods or merchandise
or any property put on board a ship or Tessel," to the amount of their
interest in the ship and freight The reason and policy of the act ex-
tend the exemption so as to include losses occarioned by the negli-
gence of the master or crew, as well as those directly caused by their
wrongflil act This construction makes the act conformable to die
general maritime law, and the owners by abandoning the ship and
freight will be discharged from personal responsibility.

December Term, 1841. This was a libel on a bill of lad-
ing against the owners of the Schooner Waldo. The facts
are stated in the opinion of the Court SeweU and Howard^
for the libellant, and Choton, for the respondent.

Ware, District Judge.

This is a libel in personam founded on a bill of lading,
against the master and owners of the Schooner Waldo, and
arising outof the same voyage as is described in the case just
decided. The Ubellant shipped on board the Waldo, Wm.
C. Wyman, master, 28 barrels of No. 1 Magdalen herring and
20 barrels of potatoes, consigned to Capt. Merrill, the former
/master, and his assigns, for a market, he to have for freight
lialf the profit for which the goods were sold, above the
invctice price. At Key West no sales could be made, but on
.their jirrival at Atakapas, six barrels were sold by a barter
ixai^iot five barrels of molasses, the molasses being valued

MAINE, 1841. 17S

Stinson «. Wyman ei al.

at twenty cents a gallon, or six dollars a barrel. The rest
were 80 much injured that they were unsaleable at any price,
and were brought back to Phipsburg, where they were found
to be entirely worthless and thrown into the dock. The po-
tatoes were wholly rotten, and the empty barrels sold at fifty-
fiire cents each. The goods were carried on deck, and the
potatoes were spoiled by exposure to wet and the frost.
Magdalen herring is an article that has lately come into the
market They are dry ^salted, and when carried by sea are
stowed with the bungs of the barrels down, or holes are bor-
ed in them, to drain oS the pickle ; because unless they are
kept dry they are spoiled in a short time. Some evidence
was introduced to show that this kind of herring i« of so
perishable a nature, that it will not, under any circum-
stances, bear a sea voyage into a warm latitude. One wit-
ness, Capt. Webb, says that in 1839 he carried 100 barrels
from Bath to Martinique, that they were carefully and well
secured under deck, and on his arrival they were all found to
be entirely ruined and worthless; and that the same season
there were several vessels at that place with these herring, and
all, without a single exception, were spoiled ; and he states
that he had never known any of that kind of herring arrive
at the West Indies in good condition. But these were all of
the fares of 1839, and it appears from the testimony of their
witness and also from that of Captain Bailey, who was ex-
amined for the libellant, that the fares of 1839 were badly
cored, and although they looked well were all spoiled when
brought in. Capt Bailey said that he had some of the fares
of 1840 which were well cured, and were found to be in
good order when they arrived at a market The fish in
this case were of the fares of 1840, and it appears therefore
that although these herring are an article of an unusually
perishable character, yet when well cured, as those of 1840
were, they will with proper care in stowage bear transport-
ation into warm countries. But for this purpose great care
is required in stowing them so that they shall not only be

174 DISTRICT COtTRT,

Stinson v. Wyman et al.

protected from wet externally, but also so that the liquor that
is evolved from the fish may drain o£f and leave them en-
tirely dry. The evidence in this case is, that being carried
on deck, they were for several days exposed to the water
breaking over the vessel, and there does not seem to be much
reason for doubt that the fatal injury they received was from
this cause. If they had been properly secured under deck
they might have arrived at a market in a merchantable
condition.

With respect to the herring which were sold by the mas-
ter and the proceeds not accounted for, my opinion, for the
reasons given in the other case, is that the owners were not
responsible. In the capacity of consignee he was not the
agent of the owners, but of the shipper. It is only in cases
where it is the known usage of the trade, that the owners
can be held for his default as consignee.

As to the residue of the herring and the potatoes, the
strong presumption from the evidence is, that the loss arose
from their exposure on deck. They were shipped by what is
called a clean bill of lading, ihat is, it contained no other ex-
ception to the master's liability but the usual one of the dan-
gers of the seas; and such a bill of lading imports that the
goods are stowed under deck. Curtis^ s Rights and Duties of
Seamen, p. 212-13. The Schooner Reeside, 2 Sumner R.
567. If the master takes them on deck, he stands as insur-
er, and will not be protected by the exception of the dan-
gers of the seas ; at least not unless he can show that they
would have equally perished if they had been below deck.
It would not be enough for him to show that, being a per-
ishable article, they might have sustained the same injury;
he must show that they would not have been exempted
from it by being under deck. Whether in that case he
would be protected, it is not necessary now to consider, as
it is certain that if they had not been exposed to the frost
ancT the wet upon deck they might have gone safely.

MAINE, 1841. 176

Stinson o. Wyman et al.

The ^oods were shipped on an agreement that the master
was to have, for freight, one half the profits beyond the in-
voice price. This for the herring is $2 76 a barrel, to
which is to be added eleven cents a barrel for inspection.
This for 22 barrels, after deducting six which the master
sold, is $62 92, and 20 barrels of potatoes at $1 06^, is
$21 25. Total, $84 17.

The common law, as well as the civil law, holds the own-
ers responsible for all the obligations of the master, contract-
ed within the scope of his authority as master, to their full
extent, whether they result from contract or tort. But, by
the general maritime law of Europe, their responsibility for
his obligations arising out of his wrongful acts, is limited to
the amount of their interest in the ship and freight. By
abandoning these they exempt themselves from all personal
liability. 3 KerWs Cam. page 218, 4th edition. This prin-
ciple of the general maritime law has never been received
in this country as part of our customary law, but we have
followed the common law of England, and hold the owners
responsible for the full amount of any damage occasioned
by the faults or negligence of the master or any of the crew.
They are strictly held to all the severe liabilities of common
carriers. But in this State, by statute in conformity with
the principles of the general maritime law, their liability is
restricted to their interest in the ship and freight. "No ship
owner shall be answerable beyond the amount of his interest
in the ship and freight, for any embezzlement, loss or destruc-
tion, by the master or mariners, of any goods or merchan-
dize, or any property put on board of such ship or vessel,
nor for any act, matter, or thing, damage cnr forfeiture, done,
occasioned, or incurred by said master or mariners, without
the privity or knowledge of said owners." Revised Statutes^
Ch. 47, 4 8.

The statute limits the owner's responsibility "for any em-
bezzlement, loss or destruction by ike nuister or mariners^ of

176 DISTRICT COURT.

The Oertrnde.

any goods or merchandise." The loss in this case was not
occasioned immediately by any act of the master or marin*
ers. The proximate cause of the loss was the violence of
the seas. But it would not have happened in this way, but
through the fault of the master in carrying the goods on
deck. The reasonable construction of the statute, it appears
to me, is to Umit the owner's responsibility for losses, which
are occasioned by the fault or negligence of the master,
as well as those which arise from direct and willful fraud.
This construction of the statute brings it into harmony with
the general maritime law of Europe, dnd is fairly within the
policy and general intent of the act, though not perhaps
within its very words.

If the decree which has just been pronounced should ex-
haust the whole value of the ship and freight, the respond-
ents, by abandoning them, will be discharged from all per-
sonal responsibiUty. The damages in that case will not, I
presume, absorb the whole fund; but if it should, the own-
ers will be entitled to show the fact, and then no execution
can be issued against them personally.

THE GERTRUDE.

The tackle, apparel, and ftiraiture of a foreign vesse], wrecked upon our
shore and landed and sold separate firom the hull, are not goods, wares,
and merchandise imported into the United States, within the meaning
of the revenue laws.

Goods taken and landed firom a foreign vessel wrecked upon the coast
are not subject to forfeiture under the 50th section of the Act of March
% 1799, ch. 122, by being landed without a permit from the col-
lector.

December Term^ 1841. This was a libel for a forfeiture,
founded on the 60th section of the Collection Act of 1799, ch.

MAINE, 1841. 177

The Gertnide.

12a The libel alleged that on the first of January, 1840, cer-
tain goods, wares, and merchandise, of the value of $ 400,
brought from a foreign port, were unladen from the brig Ger«
trude without a permit therefor having been first obtained
from the collector of the port, against the form of the statute,
whereby said brig became forfeited to the United States. It
appeared from the evidence that she was a British brig, and
that on the 9th of December, 1840, she was driven on shore
in a storm, and wrecked on the north side of West duoddy
Head. On the application of the master, surveyors were
appointed by Solomon Thayer, a notary public, to examine
the vessel, who after visiting and examining her reported
hfix to be a wreck, and in consideration of her exposed situ-
ation and the danger that she would go to pieces in the event
of another storm, advised that she should be sold the next
day where she lay, and she was sold accordingly. The day
following the sale she was got off the rocks and towed into
the harbor of Eastport. She had at the time no cargo on
board, but her cables, anchors, and rigging appear to have
been taken on shore while she lay on the rocks at duoddy
Head and before she was carried to Eastport, and this was
the unlading which was relied upon as involving a forfeit-
ure of the vessel.

Hobnes, District Attorney, for the United States, and
C. S. and E. H, Daveis, for the claimant

Wake, District Judge.

The single question in issue, between the parties in this
case, is whether there has been a forfeiture by unlading
goods, wares, and merchandise from the brig Gertrpde, of the
value of $400, without a permit having been first obtained
therefor from the collector of the district within which they
were landed. The argument has indeed taken a somewhat
wider range, but the judgment of the Court must follow the
attegata ei probata, and be confined to the matters that have

178 DISTRICT COURT,

The Gertrude.

been put in issue by the parties in their pleadings, and which
are made out by the proofs.

By the acTt of Congress, March 2, 1799, ch. 128, ^ 50, under
which the forfeiture is claimed, it is provided that no goods,
wares, or merchandise, brought in any ship or vessel from
any foreign port or place, shall be unladen from such ship or
vessel, within the United States, without a permit from the
collector of the port, and the naval officer if there be one;
and if they are unladen contrary to the act, the master and
all others knowingly concerned in aiding in the unlading or
delivering are subjected to a penalty of $400 : and when the
goods so unladen shall amount to $400 in value, the ship
herself, with her tackle, apparel and furniture, shall be sub-
ject to forfeiture.

There is no direct evidence that anything was unladen
from the vessel, and it is conceded that she had no cargo on
board. But it appears when she went ashore that she had
on board two anchors and two chain cables, and certain oth-
er furniture and rigging enrployed in the navigation of a ves-
sel, which were not on board when she was brought into
Eastport. As no account is given of them by the claimants,
it must be presumed that they were landed while she was
lying on the shore near West Quoddy Head. If it were
otherwise it would be easy for the claimants to show it It
is also clear from the evidence, that the value of the rigging
of which the vessel had been stripped, including the cables
and anchors, was more than $400.

Upon these facts two questions have been raised and argu-
ed at the bar. First, whether the tackle, apparel, and furni-
ture of a vessel thus cast on shore, a wreck, which have been
actually used or have been specially destined for the use of
the vessel in navigating her, are goods, wares, and merchan-
dise imported into the United States, within the true intent
and meaning of the revenue laws. At the first blush this
question would seem to admit of a very easy answer. The
rigging and apparel of a ship are a part of the ship, and

MAINE, 1841. 179

The Gertrude.

lierefore not merchandise in any other sense of the word
han that in which the ship herself is.

But it is said that when the ship is wrecked and the rig-
^g separated from the hull, it becomes merchandise in the
>rdinary sense of the word. It is sold as such and becomes
nixed in the general mass of consumable commodities in the
country. When thus separated with the intention of being
hrown into the market and sold, as these articles take the
>lace of others of the same character which are regularly
mported, the argument is that there is the same reason for
diaiging them with duties as there would be if they were
mported as cargo, and of course subjecting them to all the
lestraints and safeguards imposed by the revenue laws upon
egular importations. All this may be admitted to be true,
md the question will still return, whether this has been done
>y the legislature. However just and reasonable it may be
hat goods thus introduced into the country and sold for
K>mmon use and consumption should be subject to duties, it
s quite clear that the Court has no authority to impose the
ax. Our duty is limited to the inquiry whether it has been
mposed by the legislature.

If we look through the whole of the numerous acts of Con-
fress laying duties on merchandise imported, as well as those
Bgulating the collection of the «ame, we shall find they imi-
brmly contemplate the cargo ; they refer to articles having
lie quality of merchandise in the ordinary and most popu-
ar sense of the word. They refer also to goods intend-
ed to be introduced into the country for sale and con-
lumption, or for the general purposes of commerce. Although
hey speak generally of goods imported or brought into the
Jnited States, it has been uniformly held, that to constitute
in importation within the true meaning of these laws, the
irrival must be voluntary, with the intent to import them,
f therefore a vessel not bound to the United States is by
tress of weather forced into our ports, this will not consti-
ate an importation, upon which the right to duties will at*

180 DISTRICT COURT,

The Gertrnd*.

tach. This, as the authorities cited at the argument abund-
antl7 prove, has been the uniform construction given to the
revenue laws. The Mary, 1 GalL R. 206. United Siatea
vs. Vowett, 6 Cranch, 368. United States vs. Arnold^ 1 CralL
R. 348. PHnce vs. United States, 2 GalL R. 204 Prat
vs. United States, 1 Peters C. C. R. 256. Peisch vs. TForc,
AOranch, 347.

A like construction has been given to the navigation laws
of England, {Reeves^ s Law of Shipping, 203,) and probably
the same rule prevails in every civilized community. It can
only be a people who have made but little progress in civili-
zation that would not permit foreign vessels in distress to
seek safety in their ports, except under the charge of paying
import duties on their cargoes, or under penalty of confisca-
tion if they were prohibited goods, which would be the con-
sequence of applying to such cases the rigor of the fiscal
law. Against such a country, the unfortunate mariner might
justly exclaim —

** QuflB banc tarn barbara moren

Permittit patria ? boipitio probibemar aren*.'*

To hold then the rigging of a vessel cast by misfortune
a wreck on our shores, to be goods, wares, and merchandise
imported into the United States, would be extending the op-
eration of the revenue laws beyond what their natural and
obvious meaning requires. The fiscal laws of the country
which furnish the means by which the whole machinery of
the government is sustained, although they impose burthens
on individuals, are not to receive the strict and and narrow
construction that is given to penal laws. Neither are they,
like remedial laws, to be enlarged by construction, so as to
include cases which seem to.stand on the same reason with
others which are within the express words and plain intention
of the law, if it is not apparent that they were intended to
be included by the legislature. They are to be applied ac-
cording to their plain, natural, and obvious meaning, regard-

MAINE, 1841. 181

The Oertnide.

ig as well the general tenor as the particular words of the
iw; as comprehending all cases which from the general
cope of the law appear to have been intended and contem-
lated by the legislature ; and neither to be extended by anal-
gy, nor restrained by a strict constniction from the notion
bat they belong to the class of penal laws bepause they im-

looe burthens on individuals as a condition of their being al-
owed the free disposition of their property. Sumner R. 16.
The revenue laws, in all cases, contemplate a ship as a
ingle object, and when it is subjected to any fiscal charge it
I imposed ui^der the name of a tonnage duty. The rigging,
umiture, and appurtenances are a part of the ship. In the
ase of the United States vs. a Chain Cable, 2 Sumner R.
162, the very question was presented, whether a chain cable,
rhich had been purchased in a foreign country for the use
f the vessel, was embraced by the revenue laws under the
erms "goods, wares, and merchandise" which could not be
anded without a permit The Court held that it was not
f this vessel had gone to pieces on the rocks, so that there
lad been nothing but fragments remaining, it would hardly
le pretended that the broken yards, the torn sails, and dam-
iged cordage, with the fragments of the hull, would come
rithin the descriptive words of goods, wares,' and merchan-
liae imported, and liable to duty, or that it would be neces-
lary for the master, under penalty of confiscation of the
vreck, to obtain a permit from the collector before he could
ioUect the disjecta membra on the shore. And yet in what
liscriminative features would that case differ from the pros-
sit 1 It might be said of every part of these fragments that
hey were goods, wares, and merchandise brought into the
Jnited States from a foreign country, with the same reason
18 it is said of the rigging in this case. My opinion is, that
he materials and rigging of a foreign vessel, cast upon our
bores a wreck, when landed and sold do not c<mie with-
Q the purview of the revenue laws as merchandise im-
wrted.

182 DISTRICT COURT,

The Gertrade.

But if this opinion is erroneous, then the second question
which has been argued will arise, whether in this case a
forfeiture of the vessel has been incurred by landing the
goods without a permit It is not to be readily supposed that
a provision so highly penal, as this section of the law is, was
intended to be applied to a class of cases in which a compli-
ance with its terms would in some instances be impossible,
8Lnd in all involve the most imminent danger of the entire
loss of the property. When a vessel is thrown upon the
coast a. wreck, the cargo must be saved by such means as
are practicable, or not saved at all ; if the master, before tak-
ing measures for placing it beyond the reach of the waves,
must wait until he can obtain a permit of the collector for
that purpose, whose residence may be a day's journey firom
his vessel, it is very evident that in many cases the entire
cargo would be swallowed up by the waves before the per-
mit could be obtained. To require a compliance with this
section of the law in such cases would be nearly equivalent
to the revival of the old and barbarous custom by which all
wrecked goods were confiscated. Such a construction of the
law is wholly inadmissible if it will admit of any other.
Now, if we look at this section in connection with the whole
tenor of the law, it is evident that the legislature contempla-
ted only cases of vessels which had arrived in safety at the
regular port of their destination, and certainly did not con-
template cases where a compliance with the law would be
impracticable. Upon the common principles therefore of
construing statutes, the words of this section must be so in-
terpreted as to carry into eflfect the general intent of the law-
giver, and not to defeat it, or to extend it to cases clearly be-
yond the purview of the law.

But this can hardly be considered as an open question. It
was, as it seems to me, conclusively settled in the case of
Peisch vs. Ware, 4 Cranch, 347, more than thirty years ago-
For though in that case there was no allegation in the libe^
founded on this section of the law, there was one founded on

MAINE, 1841. 183

The Gertrude.

the fifty-first section, and in deciding it the Court thought
necessary to give a construction to the fiftieth. In that case
the goods were landed from a wreck without a permit, and
it was held that upon just legal construction the landing of
the goods did not subject them to forfeiture under the fiftieth
section. The act of landing in such a case, the Court said,
is not within the law, which is calculated for cases in which
the general requisitions of the law can be complied with,
and not for salvage goods in cases where they cannot be.

Upon the whole, the conclusion to which I am brought is,
first, that the tackle, apparel, and furniture of a foreign ves-
sel wrecked upon our shores, landed and sold separate
from the hull, are not goods, wares, and merchandise import-
ed into the United States, within the meaning of the revenue
laws. And in the second place, if they are to be so consid-
ered, that they are not subject to forfeiture under the fiftieth
section of the act of March 2, 1799, ch. 122, by being landed
without a permit from the collector. At the same time it
may not be improper to remark that there is something of
mystery hanging over this case. The evidence before the
Court is sufficient to raise the questions which have been con-
sidered, and yet it is clear that all the evidence, which it was
in the power of the parties to produce, has not been before the
Court It is a little singular that the informer in this case is
the purchaser of the vessel at the sale that was made in
' conformity with the recommendation of the surveyors ; that
he.does not insist upon his title, and that the claimant now
resisting the forfeiture is the original British owner. What
might be the result, if every fact in the power of the parties
to prove was spread upon the record, is not for me to say. I
can act only on the allegations that are made and the facts
that are pr oved, and on them my opinion is that the law re-
quires me to pronounce for the restoration of the vessel ;
but I shall grant a certificate of probable cause of seiz-
ure.

184 DISTRICT 0(HJRT,

The Briff CaMo.

THE BRIG CASCO.

In eveiy oontnet of affivigfatment, whether by charter party or' bill ef
kdiDg, the ship is, by the mariDe law, hypothecated to the shipper ftr
any damage his goods may sustain from the insufficiency of the vesnl,
or the fiiult of the master or crew.

If A vesnl is let on a contract of affireightment, by charter party» the
owners will not be held responsible for a loss occasioned by die linh
lence of the elements, although the dangers of the seas are not ez-
preariy excepted by the charter party.

But if they are chargeable with any neglect or ftult without which the
ion would not have happened, they will be liable.

February 10, 1842. This was a libel on a charter party.
The master of the brig Casco chartered her to the libellant
for a voyage to Porto Rico, to carry a cargo of lumber, and
from thence to her port of discharge in the United States,
touching at Turks Island for a cargo of salt, if required by
the charterer. The voyage was performed to Porto Rico
and the cargo delivered. From that place she went to Turks
Island and took a cargo of salt On her return from Turks
Island she was found to leak so badly that a large part of
the salt was lost Of 6676 bushels laden, only 3132 bushels
were delivered at Portland, the deficiency amounting to 2544
bushels. This libel was brought by the charterer against the
vessel, to recover damages for the loss. The questions of
law which arose and were discussed in the case, together
with the substance of the testimony, appear in the opinion
of the Court

The case was argued by Rand^ for the libellant, and
T. A. Deblois, for the respondents.

Warb, District Judge.

The first question, which was raised and discussed at the
bar, was whether, under this charter party, the vessel in
specie is liable for any loss, which the charterer may have

MAINE, 1841. 185

The Brig CaMO.

sustained from damage to the cargo. It is contended on be-
half of the respondents, that there was a demise of the ves-
sel herself to the charterer, by which the possession was
transferred to him ; that he, under the charter party; became
owner for the voyage, and thus his own carrier, and conse-
quently, if any damages have been sustained from the fault
of the master or crew, his remedy is solely against the mas-
ter, and not against the vessel. This is a question which
must be determined by the terms of the instrument itself.

The charter party is in its form somewhat special and pe-
culiar. It sets forth that it is made and concluded between
Allen G. York, the master, (who is also a part owner) and
John B. Brown, the libellant; and the master, in considera-
tion of the covenants and agreements of the libellant, does
covenant and agree on the freighting and chartering of said
vessel to the said party of the second part, (the libellant) for
a voyage from the port of Portland, '4o one port in the Is-
land of Porto Rico, and from thence to her port of discharge
in the United States, touching at Turks Island for a cargo of
salt, if required by the party of the second part." The
charter party then proceeds to state the covenants ou the part
of the master; first, that the vessel shall be kept, during the
voyage, tight, staunch and well fitted, tackled and provided
with every requisite, and with men and provisions necessary
for such a voyage ; secondly, that the whole vessel, with the
exception of the cabin and the necessary room for the crew,
and the sails, cables, and provisions, shall be at the disposal
of the charterer; and thirdly, he engages to receive on board
all such lawful goods and merchandise as the charterer or
his agents may think proper to ship. The libellant, ou his
part, agrees to furnish cargoes for the vessel at Portland and
Porto Rico, or Turks Island, and to pay, for the charter of
the vessel, 1176 dollars, one half to be considered as earned
at her port of discharge, and so much to be paid as may be
required for the vessel's disbursements, and the balance on

186 DISTRICT COURT,

The Brig Caieo.

the delivery of the cargo in the United States, and also to
pay all the expenses of loading at Portland.

It seems very clear from these covenants that the posses-
sion of the vessel wasi intended to be in the master. He is
to victual and man, he agrees to receive on board such goods
as the charterer shall choose to ship. The charterer agrees
to furnish the cargoes, to pay the expenses of loading at
Portland, and to advance, at her outward port of delivery,
so much of the freight as may be required for the vessel's
disbursements. Why should these covenants be inserted if
the possession of the vessel was to be transferred to the hirer,
and to be navigated by him? It is quite evident that this
charter party was a contract of affreightment for the trans-
portation of goods, and not a demise of the vessel ; that the
owners retained possession under their master, and must be
considered therefore as carriers.

There is, in the conunon form of charter parties, a clause
by which the ship and freight are specifically bound for the
performance of the covenants in the charter party. There is
none such in this, but this is a condition which, by the ma-
rine law, is tacitly annexed to every contract entered into by
the master for the transportation of goods, whether by bill
of lading or charter party. The jship is, by operation of
law, hypothecated to the shippers for any loss she may sus-
tain from the insufficiency of the vessel or the fault of the
master or crew.

There is another peculiarity in this instrument It is uso •
al, in charter parties of affreightment, as well as i^ bills of
lading, to insert a clause specially exempting the master and
owners from losses occasioned by the dangers of the seas.
This instrument contains no such exception, but this, as was
justly contended in the argument for the respondents, is an
exception, which the law itself silently supplies without its
being formally expressed. It is a general rule of law, found-
ed upon the plainest and most obvious principles of natural
justice^ that no man shall be held responsible for fortuitous

MAINE, 1841. 187

The Bng Caieo.

events and accidents of major force, such as human sagacity
cannot foresee, nor human prudence provide against, unless
he expressly agrees to take these risks upon himself. Casus
foriuUos nemo prcBStat, Pothier, Des Obligations^ No, 142.
TouUier, DroU CivU, Vol 6, No. "iSSl, 228. Dig. 60, 17,
23. Story's Bailments^ $ 25. There is an exception to this
rule, that is entirely consistent with the principle of the rule
itself. It is, when the party to be charged has been guilty
of some fault, without which the loss would not have hap-
pened. The liabilities of the owners, in this case, are pre-
cisely the same, and no more extensive than they would
have been if the usual exception of the dangers of the seas
had been inserted in the charter party.

Ebiving disposed of these preliminary matters, we come to
the questions which have been principally discussed at the
bar. They are partly questions of law, and partly fact. In
the first place, there does not appear to be any sufficient rea-
son for questioning the seaworthiness of the vessel, when she
sailed from Portland. She was carefully exammed by Mr.
Fickett, a caulker, before she was loaded, and he states that,
with very sUght repairs which were made by hitn, she was
in perfect order for the voyage. And in point of fact, on her
outward passage, and till after she left Turks Island, she did
not leak more than vessels which are considered tight ordi-
narily do. On the 7th day after sailing on her return voy-
age, she was found to have sprung a leak. The weather
was not at the time, and had not been, tempestuous or un-
usually bad. There had been, part of the time, a heavy
head-beat sea, and the ship at times labored badly. Occa«
siooally there were fresh winds, but not amounting to a gale.
On the 7di of November, at 8 o'clock,, A. M., it was found
that the vessel leaked badly.

The entry in the log is, that the day oomBMAeed with
fresh breezes and cloudy weather, with a heavy cioss-head-
beai sea; at 6 o^cIock, P. M^ took ifk fcretop-gaUuit-mil, the
brig laboring heavily ; tried ihapouqf^ereiyfeMtlf hour; mid-

188 DISTRICT COURT,

The Brig Caoco.

■ — ■ , _ ^^ ^_ ^ m-^jM^i ML I I - - ■!■ I ■ I

die part of the day, high winds and heavy head-beat sea,
tried the pump every quarter of an hour. At 8 o'clock, A. M.,
commenced leaking badly ; double-reefed the mainsail, and
single reefed the foretopsail ; two hands at the pumps. For
the whole 24 hours she kept on her course N. W. with the
wind N. N. E. The testimony of the witnesses substantial-
ly agrees with the account given in the log. There was a
fresh wind with a heavy swell of the sea. The vessel also
had a cargo which tried her strength, but all these causes do
not seem to have been sufficient materially to injure a strong
and staunch vessel.

There can, however, be no doubt that she was strained at
that time, and her seams were opened so as to admit a con-
siderable quantity of water. During the remainder of the
voyage the weather was variable, but the vessel encountered
none of unusual severity, until her arrival oflf Cape Cod.
There she met a heavy gale, and was obliged to carry a press
of sail to keep off a lee-shore. After it was discovered that
the brig leaked, fruitless attempts were made to discover
where the leak was, and she continued to leak more or less
until her arrival at Portland on the 23d of November. The
rmaster then made a protest and called a survey of the ves-
sel.

After the cargo was discharged, the vessel was examined
and repaired by the same caulker who examined her before
the voyage. He stated that he found openings in her seams,
which appeared evidently to be recent, and showed that she
had been strained during the voyage. There was a leak
about a foot in length in the garboard streak. The butt«< and
wood ends were a little slack, and wanted some caulking ;—
there was a small leak under the forecastle, the seams were
a little open at the break of the deck, and the water-ways
were considerably open. The vessel, on the whole, bore ev-
ident marks of having been strained, but the injury could
not have been great, as the caulker used but thirty pounds
ko( oakum in putting her in good order for another voyage,

MAINE, 1841. 189

The Brig Caoco.

and the whole expense of repairs did not exceed fourteen
dollars. It appears also that the ship was easil7 kept free
of water, daring the whole voyage, by one pump, except for
a short time when the leak was first discovered.

If the injury to the vessel was so inconsiderable, the ques-
tion presents itself, How happened it that so large a part of
the cargo was lost ? All the witnesses, who examined the ves-
sel before the cargo was discharged, agree in ascribing the
loss to two causes; firsts the limber holes, (which are small
holes made in the under part of the floor timbers next the
kelson, making a passage for the water to flow from the for-
ward part of the vessel back into th^ well,) it appears, were
choked up so as to prevent the flow of the water. A consid-
erable quantity of water, which should have found a passage
back into the well, was thus constantly kept forward, be-
tween the ceiling or skin of the vessel and the outside planks.
The second was the want of sufficient dunnage at the bilge,
between the first and second thick streaks, in the forward
part of the vessel. All the witnesses agree that there was
sufficient dunnage on the floor, and also on the sides of the
vessel in the »fter part. But at the bilge, between the two
thick streaks, from the mainmast forward, there was on the
starboard side about eighty square feet, and on the larboard
side about forty square feet imcovered with dunnage. On ex-
amining the ceiling here, the seams were found to be open.
On the starbord side, one seam was open for five or six feet,
to the width of five-eighths of an inch, and on the larboard
side there was a seam open as wide, for fifteen or sixteen
* feet ; and generally the ceiling was not sufficiently tight to
prevent the water from being forced through by the motion
of the vessel. The vessel having a flat floor, when she was
sailing with the wind on her beam and thrown down on the
opposite side, the water, which was prevented from passing
through the limbers into the well, was washed down to her
bilge, and by the motion of the ship blown up through the
open seams of her ceiling directly upon the salt. Nearly all

190 DISTRICT CODRT,

Tlie Brif Cafeo.

the witnesses agree that it was in this way that the salt was
lost And in point of fact the whole extraordinary wastage
was in the forward part of the vessel; the loss in the af-
ter part was not more than what is usual The evid^ice al-
so is, Uiat the salt melted most in the larboard wing, though
that was better supplied with dunnage than the other side.
But then it appears from the log, that the vessel, during the
greater part of the passage, was sailing on her larboard tack,
and this would naturally occasion the most waste there, if it
was produced by the blowing of the water through the seams
of the ceiling. On a view of the whole evidence, it may, I
think, safely be taken as an established fact, that the loss of
the salt arose from the two causes that have been mentimi-
ed.

The whole case^ then, seems to be reduced to this, wheth-
er the neglect of the owners to provide means for clearing
the limber holes, and the neglect of the master to place suf-
ficient dunnage on the wings of the forward part of the ves-
sel to protect the salt from the water, are faults of such char-
acter as to render the parties legally responsible for a loss oc-
casioned by these very deficiencies. If no fault can be im-
puted to the master or owners on this ground, the loss must
be ascribed solely to the dangers of the seas, and be borne by
the shipper; for though these dangers were not, by the terms
of the charter party, in terms excepted from the responsibili-
ties of the master, the exception is made by the law. A per-
son is never presumed to take upon himself the risk of inev-
itable casualties, which the common law somewhat irreve-
rently calls the acts of God, unless he expressly agrees so to
do. The law never requires impossibilities. Impossibilium
nulla obligatio est Dig. 50, 17, 25. But when a party is

chargeable with a neglect or fault, without which the loss
would not have happened, he will then be held responsible
for a loss by inevitable accident, or an accident of major
force. It is not that the casualty is imputed to him, but his
own neglect or fault which is the occasion of the accident

MAINE, 1641. 191

The Brig Casco.

proving fatal. Some vessels have moveable boards or plank
placed over the limbers, called limber boards, so that they
may be taken up to clear the limbers when they become
choked; some have a rope or small chain rove through these
limber holes to clear them when necessary. This vessel had
neither. The board over the limbers was fastened down,
and no examination was made to ascertain whether the lim-
bers were free or not Now, if the importance of providing
a passage for the water is such that grooves are cut in the
timbers for that express purpose, it certainly would seem to
be a want of proper care on the part of the owners to pro-
vide no means for keeping them clear; especially as they are
liable to become stopped. If this passage had been kept
clear, so as to admit the flow of water from the forward to
the after part of the vessel, it is certain that the pump would
have easily kept her clear. The accumulation of the water
forward would easily have been prevented, and of course the
salt would not have been dissolved. And, in the second
place, with respect to the dunnage. Upon this point, a num-
ber of witnesses of extensive experience in navigation, either
as ship-owners or ship-masters, were examined. Some were
of opinion that the dunnage in this case was sufficient for a
tight vessel ; others thought that the dunnage, whether the
vessel was tight or not, for a cargo of salt ought to be carried
higher up upon the wings. But all agreed that it was insuf-
ficient if the vessel was not tight It must be admitted upon
the evidence that the vessel was tight when she received her
cargo, and that the leaks were produced by straining with a
heavy cargo and a heavy swell of the sea. But admitting
the vessel to be tight, it is still true that some water will find
its way into a tight vessel ; and it is certain that the ceiling,
or what in the language of the sea is called the skin of the
vessel, was far from being tight The seams were open to such
a width that in the rolling of the vessel the water, if it did
not find its way into the well through the limbers, would be
freely blown through them upon the salt.

192 DISTRICT COURT,

The Brig Casco.

Did then the master or the owner take all the precautions
for the safety of the cargo, which were required by the na-
ture of their engagement? The duty of the owners, under a
contract of affreightment by a charter party, is to provide a
vessel tight and staunch, and everjr way fit and prepared for
the particular service for which she is hired. The sea-wor«
thiness of the vessel, and her fitness for the particular voyage,
is a term of the contract implied by law. The common law
holds the owner to a warranty in this particular, and though
the vessel may have been examined before sailing by skillfnl
shipwrights and pronounced by them every way fit for the
voyage, yet, if the goods of a shipper are injured from some
latent defect of the vessel, the better opinion is that the own-
er will be responsible. 3 Kenfs Comm, 206 and 213. Cur-
Hsy Rights of Seamen, 202. 6 E(ist. 428, Lffon vs. MeBs*
And this warranty against latent defects is held by Pothier
to result from the nature of the contract In every contract
of letting and hiring, the letter undertakes that the thing let
is fit for the purpose for which it is hired. Pothier^ Contrai
Charte Pariie, No. 30. Contract de Louage, Nos, 110, 112.
And then with respect to the stowage of the goods, the mas-
ter is held to the most exact care and diligence, and it is par-
ticularly his duty to provide proper dunnage to prevent the
goods from being injured by the leakage. Abbot on Shipping,
Part 4, Chap, 6, § 1, p. 346. The degree of care will of
course depend on the nature of the cargo, some goods being
more liable to injury by exposure to wet than others. My
opinion upon the whole is, that the neglect upon the part of
the owners to provide means by which the limbers might be
kept open so as to leave a free passage for the water from
the forward part of the vessel to the well, and the omission
on the part of the master to provide proper dunnage for the
wings of the forward part of the vessel, are such neglects as
render them legally responsible for a loss that may be ascrib-
ed directly to those deficiencies.

MAINE, 1842. 193

The Leopard.

THE LEOPARD.

Whether a vessel when engaged in an illegal employment fan maintain
an action for an injury received firom another vessel by collision —
Qu«re?

When there is danger of collision between two vessels, the one that is
sailing before the wind, or with a fair wind, must give way for one that
IB close hauled on the wind.

A vessel moved by steam is considered as always sailhig with a&ir windy
and must, in all cases, give way for a vessel moved by the vrmd.

September Term, 1842. This was a case of collision. The
libellants were the owners of a small steamboat plying on the
Kennebec river, between the towns of Bath and Woolwich,
as a ferry boat. On the 28th of April, while she was passing
on her usual track from Woolwich to Bath, she was run afoul
by the schooner Licopard, and considerably injured, and this
libel was filed to recover the damage. The facts, as they ap-
peared in evidence, were that the schooner was coming up
the river, with a fair wind from the south-west which car-
ried her at the rate of six or seven miles an hour, but having
the tide in her favor she wa:^ actually going at the rate of
eight or nine miles. At the time when the accident took
place the mate was at the helm, and the master on deck
standing between the bulkhead and the mast, in such a po-
sition that he could see whatever was before the vessel and
on her larboard, towards Bath, and could also see three or
four points over her starboard bow, but her sail being spread
hid from his view anything that might be approaching from
the Woolwich side, nearly opposite to her, and anything in
that direction was also by the sail hid from the view of the
mate. The boat was approaching from the Woolwich side,
with the schooner full in sight As the two vessels came
near to each other, Capt. Delano, who was a passenger on
board the boat, seeing that they must come incolKsionif both

194 DISTRICT COURT,

Tha Leopard.

held on their way, called out to the helmsman of the boat to
put his helm up, and at the same time hailed the man at the
helm of the schooner to put his helm down. The helm of
the boat was put up accordingly, but the helmsman in the
schooner, net hearing the call, she kept on her way, and the
vessels immediately came in collision, the bows of the schoon-
er striking against the side of the boat, and doing the damr
age complained of.

Sewall and Howard, for the libellants ; N. L. Sawyer^ for
the respondents.

Ware, District Judge.

A preliminary question has been raised in this case as to
the right of the libellants to maintain this suit, on the ground
that the boat, at the time when the collision took place, was
engaged in an illegal employment It is provided by the
Revised Statutes of Maine, ch. 27, § 1, that no person shall
keep a ferry and receive pay from passengers without first
obtaining a license therefor from the County Commissioners,
which the Commissioners are authorized to grant from time
to time, and to revoke when necessary ; and the 9th section
imposes a penalty on any person, who shall keep a ferry
contrary to the provisions of the first section, of four dollars
for each and every day it shall be so kept. As the libellants
have shown no license for keeping a ferry, the argument is,
that, the boat being engaged in an illegal employment, the
owners can maintain no action for a tort against her by a ves-
sel which was in the lawful use of the waters.

The libellants, in answer to this objection, claim the right
to keep a ferry at this place, under the act of March 7, 1834,
incorporating the Sagadahock Ferry Company. By that act,
John Parshley and others were created a body politic and
corporate, under the name of the Sagadahock Ferry Compa*-
ny, and authorized to establish and maintain a ferry across
the Kennebec river, between Bath and Woolwich, at the
place where this ferry is established, at any time within two

MAINE, 1842. 196

The Leopard.

18 from the October after the passage of the act* In 1836,
act was passed extending the time for establishing the
7 to 1837, and under this act the ferry was put in opera-
1. The company having become embarrassed, a suit was
nmenced against them by a creditor, upon which, in Dec.,
8, judgment was obtained, and the franchise was seized on
execution and sold on the 7th of March, 1839, to Wm. M.
^rs, for the term of one hundred years, to satisfy the judg-
Qt; and Rogers, by his deed of January 26, 1841, con vey-
tfae same to the libellants, who thus became the owners
the franchise, for the term of time mentioned. It is not
ied that the corporation, having by a special act of the
slature been created for this express purpose, might well
iblish and maintain a ferry without a license from the
mty Commissioners, the act itself constituting a license
il the franchise should be forfeited, surrendered, or lost, in
le mode known to the law. The question is whether this
hority passed by the tale on the execution to the purchas-
>f the franchise, and might by him be assigned to the li-
lant In the case of The Mavetick^ reported in the 5th
w Reporter, 106, the question arose whether a license to
tp a ferry was assignable under the laws of Massachusetts,
e Court held that it was not The person who keeps the
7 must have the license. It is a personal trust reposed in
ii upon the confidence entertained in his qualifications and
less for the trust. The whole community have an intet-
in the character of persons who keep public ferries, which
travellers are obliged to use, and that none should be ai-
red to keep them but men of sober habits, and such as
1 be careful and attentive to the safety of those who are
iged to use them. The law, therefore, for the common
lefit of all, requires that no one shall keep such a ferry
il he has been approved and has obtained a license for
t purpose from the prudential Court of the county within
ich the ferry is. The law of Maine appears to be a tran-
pt of that of Massachusetts, having been reenacted in the

196 DISTRICT COURT,

The Leopard.

revision of the laws in 1821, and again incorporated into the
Revised Statutes. v

llie only distinction in this point, between case of The
Maverick and the present case, is, that in the former the ferry
was kept under a license from the Court of Sessions, and in
this it is kept under a special act of the legislature, granting
the franchise, and with it the authority to maintain a ferry,
to the corporation. But, looking to the general policy of the
law with respect to ferries as well as to the special provision
of this act, the franchise granted must be considered as cloth-
ed with a trust, or at least subject to certain duties to be per-
formed on their part. By the 4th section of the act, the cor-
poration are required to keep good boats and in good repair,
suitable and convenient for the accommodation of passengers,
and to cause ready and due attendance to be given at all
times; and for the neglect of any of these duties, they are
subjected to penalties provided by the act. The corporation
are bound themselves to keep up the ferry and manage it by
their own servants. It would hardly be contended that the
corporation, by their own voluntary act, could have trans-
ferred with the franchise a right to keep up this ferry with-
out any supervision or control on the part of the County
Commissioners. Before the purchaser could have kept the
ferry, he would be obliged to obtain the approbation and li-
cense of the prudential tribunal of the county, which the law
has clothed with the authority of supervising and controlling
the management of public ferries, and whose duty it is to
take care that they are kept by suitable and proper persons.
If this would be the case in a voluntary sale, it seems to me
that the same reasons apply with equal force to a forced sale
under the legal process. Otherwise the policy of the law
may be defeated, and a ferry may fall into the hands of a
person entirely unfit to be entrusted with its management
It appears to me therefore that the purchaser, before he can
legally keep the ferry, must obtain a license from the County
Commissioners. If this be a correct view of the law, then

MAINE, 1842. 197

The Leopard.

the case of The Maverick is precisely in point, and this ob-
jection is fatal to the suit

But, independent of this consideration, I am not satisfied
that upon the general principles of the law of the sea, this
suit can be maintained upon the evidence. The rules of the
maritime law on the subject of collision are founded in com-
mon sense, and have for their object the general security and
convenience of navigation. The general principle is this :
when two vessels are under sail in such directions that, if
both hold on their course, there may be danger of their com-
ing in collision, the vessel that has it most in her power to
vary her course and keep out of the way, is bound to do so.
If she does not, and a collision ensues, she is liable for the
damage. Thus, a vessel that is sailing before the wind, or
with a fair wind, is bound to give place to another that is
close hauled to the wind, because she has more control over
her own motions and can more easily change her course.
But a steamboat, that is not moved by the wind, and has her
motive power within herself and en tirely subject to her con-
trol, which can at pleasure be moved backward or forward,
and can stop her motion altogether, has her movements more
imder her control than any vessel that is moved by the wind.
It is always in her power to avoid a collision, if she is man-
aged with ordinary skill and prudence, when it may be en-
tirely out of the power of a vessel that is moved by the wind
and currents and must go where they carry her. For this
reason, when steamboats came into use in the business of
navigation, it was decided by the maritime Courts, not by
making a new rule of law, but by the application of an old
and existing rule to a new species of vessel, that a steam-
boat is to be treated always as a vessel sailing with a fair
wind, and is in all cases bound to give way to a vessel that
is moved by sails. The Shannon, 2 Haggard Adm. R. 173.
T%e Steamboat Portland, U. S. D. C.for Massachusetts^quoi-
ed 3 Kenfs Comm. 231, vol 3, ith edit. On this ground it
was decided in a recent case by the District CJourt of the

198 DISTRICT COURT,

The Leopard.

United States for the Southern District of New York, that
the rule of the maritime law relative to vessels with sails,
viz: that the vessel having the wind must hear away for one
that is sailing on the wind, does not apply between steamboats
and vessels with sails, but that a vessel moved by steam
must in all cases give way to a vessel moved by sails. In
that case a vessel having a fair wind, in conformity with the
old rule, bore away for the boat, and by that means, through
the inadvertence of the master of the boat, a collision took
place, and the vessel was damaged. The Court ruled that
the vessel was in fault for not holding on her course, and
consequently could not recover against the boat.

The decision in that case applies precisely to the case at
bar. The schooner held on her course ; and it was entirely
in the power of the boat to have stopped her motion or
changed her course so as to have avoided the vessel. And
on the principle that has been repeatedly recognized by the
maritime Courts, both of this country and of England, the
collision must be considered as resulting from the fault of
the boat, and consequently no action can be maintined by
the owners for the damage.

Libel dismissed.

MAINE, 1842. 199

The Hull of a New Ship.

THE HULL OF A NEW SHIP.

When the local law gives a lien to material men and mechanics, for their
demands against a ship, it may be enforced in the admiralty.

All the privileged creditors may unite in one libel, or if a libel has been
filed by any one separately, then others may come in by petition and
make themselves parties to the suit

A valid contract of hypothecation may be made not only of things which
the party has at the time of the contract, bat of what he expects to
have, and of things not then in existence. It wiU attach to, and find, the
party's interest in the thing as soon as it comes into being.

A ship builder, before he commenced building the vessel, entered into a
contract "wiih a merchant by which he hypothecated the vessel to be
built, for advances.

This was held to be a valid hypothecation of the builder's interest in the
veae^ and to give a lien upon it

By a statute of Maine, material men and mechanics have a lien on vee-
aeb for materials and labor employed in making it, which has prece-
dence over the claims of all other creditora The lien created by the
contract of hypothecation was postponed to those of the material men
and laborers.

Nor was the hypothecary creditor subrogated to their privilege, merely
by paying their claims on orders drawn by the builder.

But when he actually fiimished materials, he was allowed to claim con-
ctnrrently with them.

When a creditor dransfers his debt, the assignment of the debt carries
with it all the accessory obligations, as pawns, hypothecations, or sureties
by whkh the debt is secured.

But wherea creditor has adebt due to him ona singleooiitract orobBgft-
lioDy be caoBoi divide it by assigning port to one and port toanotberao
as to enable each assignee to maintain a sqiarateaetidii without the »-
sent of the debtor.

September Term, 1842. This was a libel by Richard
Abboc, a carpenter, against the hull of a new ship, for work
and labor performed by him in building her. She was
launched March 31, 1842, and the libel was filed the next

200 DISTRICT COURT,

The Hull of a New Ship.

day, April 1. He claimed a privileged Hen on the vessel for
his pay, under a law of the State which provides, that
»* any ship carpenter, caulker, blacksmith, joiner, or other per-
son, who shall perform labor or furnish materials, for or on
account of any vessel, building or standing on the stocks, or
under repairs after having been launched, shall have a lien
on such vessel for his wages and materials until four days
after such vessel is launched or such repairs have been com-
pleted," {Revised Statutes of Maine, Ch, 125, ^ 35,) and
giving them a priority and precedence over all other credit-
ors of the owner. After the vessel was arrested on this li-
bel, a large number of other creditors, amounting to thirty-
one in all, intervened by petition, claiming to have similar
demands and praying to have their liens allowed, and to be
paid out of the proceeds of the ship.

The libel and all the petitions were committed to S. Long-
fellow, Esq., a Master in Chancery, to examine into the sev-
eral claims set forth, and to report to the Court,

First — What sum is justly due to each of said libellants
and petitioners for labor performed and materials furnished
for and on account of said ship.

Second — Where any of the parties have furnished mate-
rials for or on account of said ship, and the whole of the same
have not been used in the building of the vessel, to distin-
guish and report,

1. Such as have been used, from such as have not been
used.

2. What part of the materials not used were furnished by
the material men, under a just belief and expectation that
they were wanted for the vessel and intended to be used in
the construction of the same.

Third — To report what sums, if any, are claimed as liens
on the vessel for money paid to the workmen for labor in
satisfaction of their wages, or to material men for materials
furnished, and at whose request they were paid.

MAINE, 1842. 201

The Hall of a New Ship.

The vessel was sold on an interlocutory order for $13,000,
and the proceeds paid into the Registry.

The master reported a large number of debts due to labor-
ers and material men about which there was no controver-
sy. With respect to two large debts, which were claimed as
chargeable on the vessel in concurrence with those of the
material men and mechanics, he reported the facts specially.
One was a claim of Purinton for $7,727 15, and one of Rich-
ardson for $1,55820. The owner. Knight, made no defence,
but the question, whether these were liens on the vessel,
and if so whether they were of the same rank and enti-
tled to be paid concurrently and pro rata with the ma-
terial men and laborers, the fund being insufficient to
pay the whole, was argued by Willis and Daveis, for
Purinton and Richardson, and jPot, for the opposing
creditors.

Ware, District Judge,

With respect to most of the claims that were presented
and proved before the master, there was no controversy be-
fore him, and there has been no opposition to their allow-
ance before me. Being for labor performed and materials
furnished for the vessel and actually used, it is admitted that
under the statute they attach to her as privileged debts, and
the suits having been commenced within four days after she
was launched, the vessel is bound for them in specie. Being
maritime liens, there is no doubt that they may be enforced
by process in the admiralty where all may join and have
their rights settled in a single suit, or may intervene
for their own interest, after a libel has been filed, and have
the whole matter disposed of in, or under, one proceeding or
one attachment, instead of having as many suits as there are
creditors. Where the local law gives a lien, it may be en-
forced in the admiralty. Peyroux vs. Howard^ 7 Peters, 324.
The Gen. Smith, 4 Wheat. 438.

202 DISTRICT COURT,

The Hull of a New Ship.

Two of the claims against the vessel have been contested;
not by the owner, he admits them, but by the other credi-
tors, and the contest has been not so mucli whether these are
privileged debts against the vessel, as whether they stand in
the same rank of privilege with the olhers. The first, and
the most considerable, is Purinton's claim.

Before Knight began to build the ship he entered into a
contract by which Purinton agreed to make advances to him
for the purchase of materials and payment of the laborers,
while the ship was being built, and on the part of Knight it
was agreed that he should have a lien on the ship for his se-
curity. A doubt was suggested at the argument whether a
contract for the hypothecation of a thing not in existence at
the tiipe of the contract is not ipso jure void. It is true that
one cannot give an interest or lien on future things by way
of pawn or pledge, because the delivery of the possession is
necessary for the completion of this contract. But an inter-
est may be given by a contract of hypothecation independ^
ent of the possession ; and I see nothing in the nature
of the thing that should prevent one from giving such a right,
not only in what he has in present possession, but in what
he may afterwards acquire. A man may by a valid contract
of sale dispose not only of what he has at the time of the
contract, but by such a contract he may bind his future ac-
quisitions. As when one sells his harvest of corn before it is
grown, or his share in a fishing voyage before the fish are
taken. There is no doubt that such contracts are binding
on the parties when not prohibited by any special law, al-
though there is nothing in being at the time to which they
apply. They attach to and bind the thing as soon as it comes
into existence. If future acquisitions, not in existence at the
time, may be bound by a contract of sale, so that the interest
passes to the vendee as soon as they come into existence, no
obvious reason occurs to me why they may not as well
be bound by a contract of hypothecation. In the case of Ma^
comber vs. Parker^ 14 Pick. 4S7^ such a contract for the hy-

MAINE. 1842. 203

The Hull of a New Ship.

pothecalion of bricks, before they were made, was held to be
a valid and binding contract, and that it attached and gave
to the creditor an interest in the bricks as fast as they were
made. Slory^s Bailments^ ^294. A contract for the hypoth-
ecation of one's future acquisitions not yet in being was clear-
ly valid by the Roman law. Quce nondum sunt, futura la-
men sunt, hypothecat dari possunt ; ut fi^uctus pendentes^
partus ancillcBj foetus pecoriim, ei ea qucB nascantur, slni
hypothecs obligata. Dig. 20, 1, 15. Domat^ Liv, 3,
TU. 1, Sect. 1, No. 5.

There is then no reason why the contract of Knight
should not operate as a valid hypothecation of the vessel, and
bind the property while it was in progress and as fast as it
was built. It was obligatory between the parties, and it binds
Knight's interest in the vessel. Whether Purinton could
hold it under this contract, against a third person, as a pur-
chaser or an attaching creditor without notice, is not neces-
sary to be considered in this case. The only question here
is, whether it gave him a lien holding the same rank of
privilege with those of the mechanics and material men.

The lien of Purinton stands on his contract, and can have
no other force and extent than what is derived from that
That of the material men and laborers has its origin in the
law independent of contract, and is to be allowed such an
extent and operation as will carry into effect the intention of
the law maker. The lien of Purinton covers the whole in-
terest which Knight had in the vessel, but no more. He
could give no more. Nemo plus juris in alium trmisferre
potest quam ipse haberet. Dig. 50, 18, 54. If this had
been a contract of sale instead of hypothecation, the vendee,
when the ship was completed, would have taken precisely
the interest which the vendor then had. That would have
been the whole ship, subject to the impaid demands for labor
and materials used in her construction, and would have ta-
ken precedence of these, if process was not sued out within
lour days after she was launched. But during that time the

204 DISTRICT COURT,

The Hull of a New Ship.

rights of the material men and laborers continued under the
statute, as privileged liens having precedence over all others.
The builder could give no more extensive rights by aeon-
tract of hypothecation than he could by a sale. The title
of Purinton under his contract must therefore be postponed
to the liens of the opposing creditors who claim under the
statute.

There is another ground on which he claims to be paid
part of his demand concurrently with those who claim im-
der the statute lien. It is this, that the advances made by
him were in payment of this very class of creditors. The
amount under this head is $2,368 43, and the argument is
that he may be substituted as a privileged creditor in the
place of those whose claims he has paid. These payments
were made by him on orders drawn by Knight in favor of
the workmen, and the payments extinguished the debts.
They were not kept alive by an assignment of them by the
creditors, but by the payment they were absolutely extin-
guished and gone, and Purinton became a creditor of Knight^
not as assignee of the original debt, but by virtue of the or-
der which was paid. When the debt was extinguished, the
lien which was incidental to it was gone also. The only
way by which the lien could be preserved would have been
by an assignment of the debt, unless there had been a
special agreement with Knight, the debtor, that, upon the
payment, the lien should be continued in his favor. Do-
mat. Lois CipUes, Liv. 3, Tit. 1, Sect 6, No. 5. By such
an agreement, in the Roman law, the new creditor might
be subrogated to the privileges of the old one without an as-
signment of the debt, and in our law perhaps the same
might be allowed where it did not conflict with the rights of
other parties. But these advances and payments were made
under the contract The ship was hypotliecated as a secu-
rity for them, and by this contract Purinton was put in the
place of the owner. If either of these precautioms had been
taken, it is at least doubtful whether it would have strength-
ened his claim.

MAINE, 1842. 206

The Hull of a New Ship.

Another part of his demand, for which he claims an equal
privilege with the material men and mechanics, is for money
procured by him and expended on the ship, in payment for
materials and of the wages of the workmen. In this is in«
eluded $838 75, obtained on notes of Knight, endorsed and
taken up and paid by him, and also $2,500 procured on
Knight's note, endorsed by him, which remains unpaid, and
which, as Knight is insolvent, must be paid by him.

Here again, the security originally contemplated was the
hypothecation of the ship. Purinton agreed to make these
advances on the security of the ship. It is a good and valid
security, and covers all Knight's interest in it. But its oper-
ation is merely to put the lender of the money in the place
of the builder. It gives him no greater rights than Knight
. had. It does not enable him to come in competition with
those who have the statute lien.

There is a small part of his demand, amounting to $30,
which is admitted to be for materials furnished, and which
were actually used in the construction of the ship. For
this, I think, notwithstanding his contract, he maybe allow-
ed to claim in concurrence with the other material men and
mechanics. He claims also another small sum of $11 21
as assignee of Foss. For t'lis, Foss had a lien under the
statute, as it is admitted to have been for materials furnished
for the ship. If Foss had a lien, why should not the privi-
lege follow the debt into the hands of his assignee! The
debt is the principal and the lien is the incident, and the
general rule is that the principal carries with it the accesso-
ry. When a debt secured by a mortgage is assig led, in
Equity it carries with it the mortgagee's interest in the land.
The interest in the land is in fact nothing independent of
the debt, and, after the assignment of the debt, the legal in-
terest remains in the mortgagee as a mere naked trustee for
the benefit of the assignee of the debt. 4 Keni^s Com. 194
2 Story's EquUy, $ lOlG, 1023, note, A payment of the debt

206 DISTRICT COURT,

The Hull of ft New Ship.

extinguishes the interest in the land without any formal re-
conveyance. Gray vs. Jenks, 3 Mason^ 520. Why should
not the same doctilne hold in the mortgage or hypothecation
of personal chattels. There is the same reason in one case
as the other. If a lien creditor cannot transfer his privilege
with his debt, he does not have the full benefit of his con-
tract For if the debtor happens to be insolvent, as in this
case, the creditor cannot avail himself of the debt by an as-
signment unless he can transfer his privilege with it For
this sum, Purinton succeeds to all the rights of his assignee,
and is entitled to the lien. The same principles prevailed in
the Roman law. A creditor, by a simple assignment or ces-
sion of the debt, transferred to his assignee all the accessory
obligations and securities by which it was secured to him.
The assignee had the same benefit from pawns and hypoth-
ecations to which the assignor was entitled. Dig. 18, 4, 6 —
14—23. DanMi, Liv. 3, Tit. 1, Sect 6, No. 1. Warkcsnig
Jus Romannm Privatum^ § 443, 444. Toullier, Droit Civile
vol. 7, No. 120. The accessorial being a mere dependency
on the principal obligation, could not be assigned separately
from it Warkoenigy § 440, No. 3.

It is objected that if a creditor, having a lien, may thus
assign his privilege with his debt, he may, by assigning his
claim to different persons, split a single demand into a num-
ber of debts, and thus harass the debtor by a multiplicity of
suits. But this consequence will not necessarily follow. In
strict law a chose in action cannot be assigned at all. The
ancient rigor of the common law in this particular, has, in
favor of commerce, long been relaxed. An assignment will
be supported in law, and the assignee may enforce his
rights by a suit in the name of the assignor. But a creditor
is not allowed to divide a single debt into parts, so as to give
to each a separate action in his name, without the assent of
the debtor. The debtor has a right to insist on the singleness
of the obligation, and to be protected against a multiplicity
of suits. An order, drawn by the creditor for the whole

MAINE, 18452. 207

The Hull of a New Ship.

debt, is an assignmcat of the fund, and as soon as the debtor
is notified, he becomes, even without his own consent, obli-
gated to pay to the assignee ; but an order drawn for a part
of it will not bind hioi unless he assents to it by accepting
the draft MandeviUe vs. TFefcA, 6 Wheat. 277. Tiernan
▼s. Jackson^ 5 Peters^ 51S0.

This equitable temperament of the creditor's right, which
prevents him from dividing a single obligation into several
by assigning part of it to one and part to another, is recog-
nized in the Roman law. He might assign part of his debt,
but not so as to make it more onerous to the debtor. When
a single debt was divided into several, the debtor was not
rendered liable to several actions, but he might require all
the assignees to join in one suit and receive the whole debt
at one time. Wcarkccnig Jus Ram. Priv. vol 2, No. 442. 7
TouUier, No, 120, noie.

The other contested claim is that of Richardson. This
amounts to $1,552 20, and is admitted to be, for the greater
part, for materials actually used , in the construction of the
ship. The whole were furnished under a special contract,
by which it was agreed that ''Richardson is to hold a lien
on said vessel and the timber until paid for, and it is also
agreed that the said timber and planks are to be paid for
when said vessel shall be built and ready to launch, or with-
in four days after being launched." The lien which was
intended to be created by the contract, is precisely coexten-
sive with that given by the statute, and to the extent of the
materials actually used in the construction of the vessel, it
is entitled to all the privileges of the statute lien. If the ex-
cess had been small and had been furnished under a belief
that the whole was wanted and intended to be used in build-
ing the ship, I should think that the lien ought to extend to
the whole. But the excels here was considerable, and it is
in proof that, at the time when the contract was made, Rich-
ardson was informed that the whole might not be wanted for
the vessel. Now, though the contract might create a valid

208 DISTRICT COURT,

Pettingill v. Dinsmore.

hypothecation of the vessel for the whole amount of the debt,
against the owner and all claiming under him with notice,
this will not place him, as to the portion of materials not used,
in the same rank of privilege with the laborers and material
men who claim under the statute. For this part of the debt
his lien must be postponed to theirs. The statute privilege
extends only to materials which are fbrnished for the vessel
and actually used in building it.

For inlerlocuiory and final decrees in this case^ see Appen-
dix A.

PETTINGILL versus DINSMORE.

In a libel ibr a marine tort, the libellant must set forth, in a distinct alle-
gation, each separate and district wrong on which he intends to reljr,
and for which he claims damages.

If he intends to rely on general ill treatment and oppression on the part
of the master, in aggravation of damages, it must be propounded in a
distinct allegation, to enable the master to take issue upon it in his ao-

■

swer.

The proofs in the case must be confined to the matters that are put in
issue by the libel and answer.

When a master is prosecuted in the admiralty for punishing a seaman, he
. may be permitted, in justification or in mitigation of damages, to show
that the seaman was habitually careless, disobedient, or negligent in
his conduct

But in order to be admitted to this defence, he must set forth such habit-
ual misconduct in a defensive allegation in his answer, in order that
the libellant mny be enabled to meet the charge by counter evidence.

May 22, 1843. This was a libel in personam for an as-
sault and battery on the high seas. The libellant shipped as
steward, in October, 1841, on board the barque Massasoit, of
Bath, for a whaling voyage. He was, in the language of sea-
men, a green hand; that is, it was his first voyage as a seaman.
For the first two weeks he was so ninch affected by sea-sick-
ness as to be unable to perform his duty. Afier that time

MAINE. 1843. 209

Pettingill v. Dinixnore.

he entered on his duties, and no difficulty, or at least none of
a serious nature, occurred until the 28th of November. On
that day the cabin boy, in shaking the cabin table cloth over
the side of the vessel, accidentally dropped it into the sea,
and it was losL He mentioned the fact to the steward, who
told him to inform the master. The boy replied that he was
afraid, and requested the steward to do it for him, who ac-
cordingly did, and the first assault complained of was then
made. The next morning the libellant was called on deck
and seized up to the rigging and kept so for from half an hour
to an hour, which is the other wrong complained of. The
material facts are stated in the opinion of the Court.
SeuHiU, for the libellant; Tolman, for the respondent

Ware, District Judge.

This is what in the language of the Admiralty is techni-
cally termed a cause of damage. It appears from the testi-
mony of the libellant's witnesses that, when the table cloth
was lost by the boy, he mentioned the fact to Maxwell, the
cooper, who advised him to mention it to the master. He re-
plied that he was afraid the master would fiog him. He then
advised him to inform the steward, and ask him to comrau.
nicate the facts to the master. This being done, the steward
came on deck and informed the master. He was irritated
and answered very roughly. The steward replied that he
would pay for the cloth. The master an^jwered that he
wanted no other pay than what he could get from his hide J
that he had promised him a flogging, and that he would
keep his promise. Pettingill replied that if he flogged him
he would have satisfaction if he lived to get home; upon
which the master struck him and brought him to the deck,
either by the violence of the blow or by throwing him down.
While down he shook him violently, brought his knees or
feet upon his breast, seized him by the hair with such vio-
lence as to pull or tear a considerable quantity from his head^

210 DISTRICT COURT,

Pettingill o. Dinsmore.

SO as to leave a spot bare, and after holding him in this aaan-
ner for some time, allowed him to get up and ordered him
into the cabin.

The next morning all hands were called aft, and the stew-
ard was called from the cabin on the quarter deck. The
mate was then directed to seize him up by both hands to the
rigging, with his arms spread and extended upwards to their
full length, and as high as they could be to leave him stand-
ing on the deck. In this position he was kept for from half
an hour to an hour. Two of the witnesses state that his
shirt was stripped up, so that his body was left bare. The
other witnesses do not mention this fact, and the witnesses
for the master deny it. While the-libellant was in this po-
sition the master called the attention of tlie crew to him, and
walked the deck forward and back, apparently in great pas-
sion, applying to the steward various insulting and degrad-
ing epithets, and observed that this was what he called a
spread eagle, and that he would make an example of Pettin-
gill. Except where the hair was torn from his head there
were no marks of violence apparent on the person of the
steward. For two or three days afterwards he complained
of a severe pain in his head, though he was not so injured
but that he immediately returned to the performance of his
duty. The witnesses for the master give a more subdued
and mitigated account of the assault on the 28th, and of
the seizing up to the rigging on the morning of the 29th.
They saw no blows inflicted, no stamping, or jamming,
with the knees or feet, on the breast of the libellant, and
no pulling of hair, nor did they hear any complaint of the
steward; but they say he acknowledged his fault and asked
the master's pardon. But with respect to the cause or the
occasion of the punishment there is no discrepancy between
the witnesses.

This is the substance of the testimony so far as it applies
to the allegations of the libel in the form in which it was
originally drawn. But after the evidence was taken and

MAINE, 1843. 211

Pettingill v. Dinsmore.

the cause ready for a hearing, the counsel for the libel lant
moved for liberty to file an amendment to the libel. The
amendment offered sets forth more particularly the assaults
on the 28th and 29th, and also contains two new substantive
allegations, one of another distinct assault in the cabin in
the evening of the 28th, and another of general illusageand
oppressive cruelty on the part of the master. The amend-
ment is objected to on the part of the respondent

The Court without doubt has the power to allow an
amendment in any stage of the proceedings before a final
decree, when the purposes of justice require it. But a mo-
tion to amend is addressed to the discretion of the Court, and,
when it will necessarily lead to delay and an increase of
expense, it will not be allowed unless the Court sees that
substantial justice cannot be attained without an amendment.
The practice of the Admiralty does not insist on all that
technical exactness in pleading, which is required by Courts
proceeding according to the course of the common law. But
the libellant is required to state in clear, distinct and intelli-
gible allegations, the whole gravamen of his complaint. He
must set forth every material and substantive wrong, upon
which he intends to rely and for which he claims damage,
in a distinct allegation. If ho intends to claim damages for
separate and independent assaults, they should be separately
set forth; otherwise the respondent will not know what he
has to answer. And the proofs in the case must follow the
allegations. It is not intended to be said that every circum-
stance of aggravation attending an assault and battery must
be minutely described, but, when the libellant proposes to of-
fer proof and claim damages for separate assaults at different
times, he is bound to set them out in separate allegations.
And so if he means to rely on general harsh treatment and
continued and systematic oppression and cruelty, either m
aggravation or as an idepcndent and substantive wrong, the
libel should contain, in a separate article, an allegation to
that effect, in order that the respondent may take issue on

212 . DISTRICT COURT,

Pettingill v, Dinsmore.

the matter and prepare his defence accordingly. 4 Mamrii
Rep. 541, Orne vs. Towtisend. 1 Sumner's Rep, 390, Tread-
well vs. Joseph.

Now, in the libel as originally framed, there is no mention
of an assault in the cabin, and yet, as it is alleged in the
amendment, it oan in no sense be considered as a continua-
tion of that which took place on deck, nor is there any dis-
tinct charge of habitual ill-treatment and oppression so for-
mally set out as to give notice to the respondent that this
matter would be insisted upon as an independent ground of
damages, or that it would be relied on in aggravation to en-
hance the damages for the assaults particularly articled in
the libel. The answer is drawn to meet the allegations in
tlie libel, and consequently neither of these matters are pot
in issue. If the amendment is allowed, the master must have
liberty to amend his answer, and time must be given to pro-
duce evidence on the new issues presented by the pleadings.
This will necessarily lead to delay, and involve an increase
of expense, and as the necessity of an amendment to reach
the whole justice of the case, if any such necessity exists, of
which I am not convinced, was occasioned by the fault of
the libellant himself, in my judgment the amendment ought
not to be allowed.

The master in his answer justifies the act as a necessary
and proper act of discipline, and alleges 'Hhat at the time,
the said libellant was not obedient to the respondent's com-
mands, but assumed and took upon himself to do and act as
he saw (it. in subversion of the necessary discipline and sub-
ordination of the crew of said ship, and in a mannf7r to de-
stroy the objects of the voyage and produce muliny;" and
he then proceeds to state that he gently laid him down on
the deck and detained him there a short time, and on his
promise to conduct better he was allowed to get up ; but not-
withstanding his promise he still manifested insubordination
and insolence to the respondent, upon which he told him that
he would seize him up in the rigging, and that '* thereupon

MAINE, 1843. 213

Pettingill v. Dinsmore. '

Pettingill threatened and dared him to do so, alleging if he
did, that he the said Pettingill would make this respondent
sweat for so doing ;" and that afterwards, on mature consid-
eration the following day he did cause him to be seized up
for a short time and in a manner not to produce pain or in-
jury, and that the chastisement was mild, necessary, and
proper.

Evidence has been offered by the master, in his defence,
tending to prove that Pettingill was careless and negligent in
the performance of his duty. I have no doubt that evidence
of general and habitual negligence and carelessness in the
discharge of duty, may be admitted in justification of pun-
ishment, when in a proper case it is administered to correct
such habits of sloth and negligence, and may go in mitiga-
tion of damages when it does not amount to a full justifica-
tion. The right of the master to correct a seaman by some
kind of punishment, for habitual and systematic sloth and
negligence, seems to result from his peculiar relation to the
crew and the nature of the authority with which the law
has entrusted him. He is invested with a sort of domestic
authority, but it is of a peculiar character and of limited ex-
tent It has an analogy to that of a parent over his child-
ren, or a master over his apprentice or pupil, but the analo-
gy does not hold throughout. He has not the authority of a
eustos morum to correct his crew for general immorality of
conduct His power is limited to the correction of such de-
linquencies as are connected with the due performance of
their special duties on board the vessel. But when the law
imposes on the master the responsibility for the government
of the vessel and the discipline of the crew, it clothes him
with an authority commensurate with his duties and respon-
sibilities. The safety of the ship, the comfort and health of
the crew, and the success of the voyage depend on the
prompt and punctual performance by each man of his appro-
propriate duties, and it is a part of the master's duty to see
that these duties are performed in a proper manner and with

214 DISTRICT COURT,

• Pettingill v. Dinsmore.

reasonable diligence. It would seem, then, that habitual
sloth and negligence or wanton carelessness, if persevered in
after proper admonition, may be corrected by suitable pun-
ishment.

When a seaman brings a suit for damages against the mas-
ter for illegal and unjustifiable punishment, he puts in issue
his general conduct and character during the voyage, or
rather enables the roaster to put it in issue. But when the
master means to rely on such matter in justification, or in
mitigation of damages, he must set it out in his answer in a
distinct allegation. The libellant has then notice of the de-
fence and may be prepared to meet it. But if the answer
contains no such defensive allegation, tlie libellant has no
reason to suppose that his general conduct for the voyage is
intended to be called in question. The evidence therefore
to this point, in the actual state of the pleadings, is not prop-
erly admissible. But if it were in the case, it is not of snch
a character, in my judgment, as ought to have a material in-
fluence on the decision.

How then stands the case on the evidence that isproperly
applicable to the matters in issue between the parties? The
cabin boy lost a table cloth overboard. He being, from some
cause, afraid to communicate the fact to the master, at his
request the steward does it for him. Whereupon, without
further apparent cause, the master commences a violent as-
sault on the steward, knocks him down on the deck, shakes
and jams him violently against the floor with his feet or
knees, and seizes him with such force as to tear out a consid-
erable quantity of his hair. The only oflence, that Pettingill
had comimitted, was his reply, when the master told him
that he would flog him, that he would then seek redress from
the laws of his coimtry. But this threat, as the master calls
it, was not uttered, according to his answer, until after the as-
sault on the deck; and it is represented in the answer as en«
couraging a mutinous spirit in the crew and as a justifi*
cation of the punishment the next day. The next mom*

MAINE, 1843. 215

Pettingill r. Dinsmore.

ing, without any further cause than that of avowing his
intention to seek redress when he returned, and, as the master
in his answer says, for an example, he caused him to be seized
up by both hands, with his arms extended, as the master face-
cetiously remarked, like a spread eagle, and kept him suspend-
ed in that ignominious posture before the crew for from half
an hour to an hour, not, it is true, in a manner to cause great
bodily pain, but exposing him to derison and ridicule, and
accompanying the whole with a copious effusion of taunting
and opprobrious language.

I can find in the evidence no cause for this punishment
except the state of irritation into which the master was
thrown by the loss of the table cloth ; and the punishment
was inflicted not on the boy who lost it, but on the steward
who brought him the information. Pettingill might well
say after this experience, the " bearer of ill tidings hath but a
losing office," when he was obliged to expiate by a vicarious
punishment in his own person, the offence which he only an-
nounced as a messenger. It is now indeed said, by the way
of extenuation, that the steward was habitually remiss in
his duty. But this, as has been before observed, was not
relied upon in the answer and is not properly in issue, and,
from the character of the evidence which is offered in sup-
port of it, seems brought in by an after-thought as a pal-
liation of a gross outrage that is entirely without justifica-
tion. On the whole evidence the punishment appears to
me to have been a wanton abuse of power without any
cause which could operate on the mind of a reasonable
man, and I shall award damages to the amount of eighty
dollars, with costs of suit

216 DISTRICT COURT,

Shaw o. Mitchell.

JANE SHAW, BY HER NEXT FRIEND, S. J. SMITH,

VERSUS NATHANIEL MITCHELL, Assignee.
ALPHEUS SHAW, Administrator, versus THE SAME.

A husband has only a qualified interest in choses in action belonging to
the vnfe. He has, at common law, the right to make it absolute by re-
ducing them to possession.

But if he is obliged to seek tlie aid of a Court of Equity ibr the purpose
of obtaining possession, it will be given only upon the condition that a
suitable settlement out of the property be made for the benefit of the
wife.

Where property descended to the wife of a bankrupt before a decree of
bankruptcy, and at that time he had not reduced it into poaseflsioD, it
was held that the wife was, in £!quity, entided to an allowance out of
the property, for her support against the assignee of the bankrupt.

October Term, 1843. This was a petition by Jane Shaw,
wife of Alpheus Shaw, who was decreed a bankrupt March
2, 1842, praying that certain notes, which had descended to
her from her father, and which were included in the schedule
of the bankrupt's property annexed to his petition and deliv-
ered to his assignee, may be re-delivered to the administrator
of her father's estate, in order that the same may be admin-
istered by him and distributed to her as her distributive por-
tion of her father's estate.

The following are the material facts. Mr. Doughty, the
father of Mrs. Shaw, died Sept 4, 1838, leaving four chil-
dren, and certain notes, secured by mortgage, which was all
the property that descended. Mr. Shaw was regularly ap-
pointed administrator Dec. 4. 1838. The notes in question
came into his hands as administrator, and so remained, noth-
ing having been paid upon them, until the decree of bank-
ruptcy and the appointment of an assignee. They were in-
cluded in the schedule of his property and delivered to bis
assignee. No distribution has been made of the estate by

MAINE, 1843. 217

Shaw V. Mitchell.

the administrator, and no account has been settled at the
Probate Court, but the notes still remain due and unpaid.

Mr. Shaw has also filed a petition, that the assignee may
])e ordered to relinquish the notes and restore them to him in
his quality of administrator, to be administered and distrib-
uted according to law, and for the payment of the debts of
the deceased, if necessary for that purpose.

Notice of the petition was acknowledged by the assignee,
and the case is submitted to the Court on the facts stated in
the petitions, which are not controverted.

Ware, District Judge.

This case has been submitted on the facts disclosed in the
petitions of Mrs. Shaw and the bankrupt, which are admitted
to be true, for the purpose of having the rights of the assignee
and the petitioner determined by the Court.

By the common law, marriage ataounts to an absolute gift
to the husband of all the personal goods and chattels of the
Avife, of which she is in possession, at the time of the mar-
riage, in her own right, and also of all that may accrue to
lier during the marriage. With respect to such of the wife's
personal property as is not in possession, as debts due to her
by contract, or money coming to her by inheritance, these do
not pass to the husband as an absolute gift. 2 Story^s Equi-
tyi § 1402. Such choses in action are a qualified gift. He
has a right to sue for and recover them, but they do not be-
come absolutely his until he has reduced them into his pos-
session. And the same principle applies, whether they be-
long to her at the time of marriage, or accrue to her during
coverture. A legacy, or a distributive share of an inheri-
tance, accrues to her, it is true, for the benefit of her hus-
band, but these do not become at once incorporated into the
general mass of his property without distinction. They bear
an ear mark, if such an expression may be allowed,, by
which they are discriminated from his other property; and
if he dies without reducing them into his possession, they do

218 WSTRICT COURT,

Shaw V. Mitchell.

not go to his administrator, but survive to the wife, and she is
entitled to them against the personal representative of the hus-
band. And the choses in action of the wife, as debts due to
her, or stock standing in her name, arc not reduced into the
husband's possession so as to exclude the wife's title by sur-
vivorship, merely by the notes or certificates, that is, the ev-
idences of property coming into his hands. 9 Vesey, 174,
WUdman vs. WUdman. The debts due to the wife are not
reduced to the legal possession of the husband until the
money is paid, or, having the present power to reduce them
into possession, he has assigned them for a valuable consid-
eration. 1 Russell Rep. 66, Piirdew vs. Jackson, 3 Rus-
sell JR. 65, Homier vs. Morton. A judgment in the lifetime
of the husband, it seems, is not sufficient, at least unless the
suit was in the name of the husband alone. 2 Story's
Equity, § 1405. 2 Kenfs Comm. 137. If he dies in the
lifetime of the wife before this is done, her choses in action
will survive to her and not go to his personal representative.
But although the husband has only a qualified interest in
his wife's choses in action, he has always the power of mak-
ing that absolute by a reduction of them into his actual {xw-
session; nor does the common law furnish the wife any
means of preventing the husband from so reducing them in-
to his possession as wholly to extinguish her separate inter-
est. But Courts of Equity have long been in the habit of
interposing to protect the interest of the wife. Whenever
the husband is obliged to seek the aid of a Court of Equity
to obtain possession of the wife's property, the Court will
give its aid only on the condition, that the husband settle
part of the property on the wife, to be held for her benefit,
independent of the husband and his creditors. This right
of the wife to a reasonable provision out of her own proper-
ty, for the support of herself and her children, is called the
wife's Equity. The general principle, on which the Court
interposes in her favor, is said to be, that he who seeks equity
shall do equity ; and the present disposition of Courts seems

MAINE, 1843. 219

Shaw V. Mitchell.

to be rather to enlarge than curtail the beneficial operation
of the rule in favor of married women.

This is the established rule in all cases where the husband
himself, or his general assignee, for the payment of debts, or
under insolvent laws, or in bankruptcy, is obliged to have
recourse to a Court of Equity to obtain possession of the
wife's personal property. Ordinarily, it.i§ said, that Courts
of Equity will not interfere to control the husband when us-
ing the common remedies of the law to obtain the possession
of such property. But it is admitted that this rule is subject
to some exceptions. Where a legacy to a wife is sued for in
the Ecclesiastical Courts, it is settled that an injunction will
be allowed to enforce the Equity of the wife. 2 Story^s
Equity^ ^ 1403. And for the same reason it has been said,
ihat a suit at law, for a legacy, or a distributive share of an
inheritance which has descended to a married woman, ought
to be restrained, because such rights of action are of an
equitable nature and of equitable cognizance. 2 Rentes Com,
140, 4/A Ed, 6 John. Ch. «., 178, Haviland vs. Bloom. In-
deed, upon the ground on which Courts of Equity inter-
fere at all, that is, that it is equitable that the wife should
have a support secured to her out of her own property and
placed beyond the reach of the husband and his creditors, it
is not easy to perceive what just and reasonable distinction
can be made between her legal and equitable rights of ac-
tion. And it has been suggested by high authority that no
such distinction ought to be allowed, but that the Court
ought, on the principles of justice, to restrain the husband
from availing himself of any means at law, or in Equity,
from possessing himself of his wife's property in action, ex-
cept on the condition of making a competent provision for
her. 2 Kenfs Comm. 139. Story^s Equity^ ^ 1403, note.

From this view of the law, it appears to me that the wife
would be entitled to her Equity out of this property against
her husband. It is property which has descended to her by
inheritance. It has never by the husband been reduced to

220 DISTRICT COURT,

Shaw o. Mitchell.

possession, but was, at the time of the bankruptcy, in the
liands of the administrator of the estate of her deceased fa-
ther. It makes no difference that the husband, in this case,
was the administrator. For he holds this property, not in
his personal, but in his representative character, and, like ev-
ery other administrator, is bound to account for it to those
who are legally cmmI equitably entitled to it The case has
occurred in which the wife's Equity attaches in all its
strength, the husband having, by bankruptcy, been deprived
of the means of supporting his wife and her children. It is
property, as observed by Chancellor Kent, of an equitable
nature and of equitable jurisdiction. If the husband had
died after the bankruptcy, it is clearly settled that the wife
would have been entitled to the whole fund by survivorship.
2 Simons^ iJ. 167, Pierce vs. Thornby. The case appears
to me to fall within the general principles on which this ju-
risdiction is exercised by Courts of Equity. And as this
(>ourt, sitting in Bankruptcy, has all the powers of a Court
of general Equity jurisdiction, it has the authority to allow
the claim of the petitioner. If it would be allowed against
the husband, jt will be equally against his assignee. An as-
.signment by operation of law in bankruptcy, passes the
property in the same plight and condition as it was possessed
by the bankrupt himself, and subject to all the Equities that
affected it in his hands. 2 Story's Equity^ ^ 1411. 9 Vesey,
100, Mitford vs. MUford,

What proportion of the property ought to be allowed to
the wife, is a proper subject of inquiry before a master, and
II reference to a master will be made for th£^t purpose.

MAINE, 1844. 221

Carleton v. Davis.

THOMAS CARLETON, Libellant,

VERSUS

WILLIAM P. DAVIS.

The master of a vessel has a right, in cases of necessity, to correct a
negligent, disobedient or mutinous seaman, by corporal punishment.
But the punishment must be reasonable, and not inflicted with unlaw-
ful instruments.

When a seaman prosecutes the master for an assault, and it is proved
that he has been guilty of a fault which would justify some punish-
ment, to entitle himself to damages he must show that the punishment
was excessive in degree, or unlawful in its kind.

April 4, 1814. This was a libel for what is technically
called, in the Admiralty, a cause of damage. The libellant al-
leged that he shipped on board the brig Androscoggin, at Bal-
timore, as cook and steward, in March last, for a voyage to
Portland, and that during the whole voyage he faithfully per-
formed his duty ; and that on the 17th of March, between the
liours of ten and eleven o'clock at night, all hands being
called on deck, as soon as he heard the call he dressed him-
self and went up : that when he got on deck he was seized
by the Captain, who struck him over the head with a large
piece of wood, called a belaying pin, severely wounding him
and causing the blood to flow profusely from the wounds ;
that after striking him about a dozen blows, he called the
mate and told him to kill him, the libellant, and throw him.
overboard; that he then again assaulted the libellant with a
rope, giving him, over the head and face, a large number of
blows, severely injuring him, and he prays the Court to pro-
nounce for the damages he had sustained. The answer de-
nies that the libellant did his duty as a faithful seaman, but
avers, on the contrary, that he was negligent, disobedient
and insolent ; it denies that the master struck him with a
piece of wood, but admits that he did strike him several

222 DISTRICT COURT,

- -

Ctrleton v. DaTii.

times with a small rope, and pleads a justification that the
libellant refused to do his duty and made the first assault on
the master.

The case was argued by Fox, for the libellant, and Hotih
ard, for the master.

Ware, District Judge.

The libel, in this case, states a grave and serious injury,
and from the marks still remaining on the person of the li-
bellant, it is evident that he actually received in the melee,
one or more pretty severe wounds. If they were inflicted in
the manner stated in the libel, and with the instrument that
has been produced and exhibited in Court, it is a case mi-
doubtedly that not only calls for damages, but for exemplary
damages. Fol the instrument is one that, in the hands of a
vigorous man, with the exertion of even less than his whole
strength, might well effect not only a severe but a fatal inju-
ry. Now, admitting the doctrine of the law, as claimed by
the counsel for the respondent, that the master has the legal
authority to correct and chastise a refractory, disobedient,
and mutinous seaman, it is to be recollected that the law has
imposed two important restrictions on this right; first, that it
must be reasonable and moderate in degree, and secondly,
that the punishment shall not be administered with unlawful
instruments. Now it will readily be admitted that a billet of
wood, eighteen inches long, and nearly as large as a man's
arm, is not a proper instrument to be used in punishing a
seaman. Nothing short of some personal danger to himself,
from the violence of a man, could justify the master in as-
saulting a seaman with a deadly instrument, and such this
undoubtedly would be in the hands of a man of ordinary
strength. If therefore I was satisfied, by the testimony, that
the master actually assaulted the libellant with this belaying
pin, which has been brought into Court, I should feel no hes-
itation in giving damages on this ground alone, although the

MAINE, 1844. 223

Carleton v. Da^ii.

same evidence might show that the seaman was in fault and
deserved some correction. For I hold it a wholesome rule
to be insisted upon and to be firmly upheld, that the master
shall not, in punishing his men, though they may be in fault,
use instruments of correction which endanger life or limb,
and may produce fatal effects.

The difficulty, in this case, is in ascertaining from the evi-
dence whether this billet of wood was used or not. It is
charged by the libel, and denied by the answer. But as no
person was in sight when the affray took place, the case is
left, on the conflicting allegations of the parties, each proba-
bly, as is usual in such cases, a quick witness in his own fa-
vor, very much to the conjecture of the Court. Only two
witnesses have been examined who could give any account
of the affair, one called by the Ubellant and one by the r^
spondent, and the night being very dark, neither of them
was in a position to see what took place, and from the loud
whistling of the wind through the rigging, neither of them
near enough to hear but very imperfectly what was said.
Antonio Cook, one of the hands, was at the mainmast head,
nearly over the spot where the affair took place. He says
that the first he heard was the master asking Dunning, the
mate, whether the cook had got on deck, and then he sung
out for some one to take the helm. The next thing he heard
was a number of blows, as of some one striking a man with
a piece of iron or stick of wood, and he heard the captain
say, take that and go forv/ard. He heard a number of
blows, and the words, go forward to your duty, several times
repeated. He soon aftdr heard Dunning sing out, let go, and
immediately after heard the captain say, kill him and throw
him overboard. The master, he says, spoke very loud, but
he did not hear the cook's voice.

Dunning, the mate, who was called by the master, says,
that when all hands were called, he came up and went for-
ward to take in the sails, and that about twenty minutes or
half an hour after, the captain called to him and asked

224 DISTRICT COURT,

Carleton v. Davis.

whether the cook was on deck, and he answered that he was
not. He then called him and again went forward to com-
plete the taking in of the sails. About fifteen minutes after,
he heard a soiifile in the after part of the ship, and heard the
captain say, go forward to your duty. He then went aft
and found the cook holding the captain pushed backward
over a spar by the companion way. The master called out
to him to take him off. He then spoke to the cook and told
him to let the captain go, and he not minding, he took hold
of him and, after pulling him three or four times, succeeded
in breaking his hold. After he had taken him off, and turn-
ed to go forward again to duty, the cook went at the captain
a second time, saying, put it on, I want you to flog me, and
seized the master again. The mate again returned and pull-
ed the cook off and threw him down over some hewed tim-
ber. The cook then went forward to his^ duty, and continu-
ed to do duty for the remainder of the voyage. This is the
material part of the testimony, for though one more witness
was examined, he added nothing that materially varied the
case. The mate did not observe at the time that the libel-
lant had received any material injury, and he heard no com-
plaint from him.

The testimony of Cook, connected with the fact that a se-
vere injury was certainly inflicted on the libellant, if it stood
alone and unaffected by any other evidence in the case,
would certainly go far to convince one that a rude and vio-
lent attack was made upon the libellant by the master. He
was not, it is true, in a sit\iation to see the parties, or to hear
but imperfectly, what was said. But he heard the scuffle
and blows given, and heard the captain's voice loud above
the wind, telling him to take that and go forward ; and the
libellant came out of the scuffle a wounded man. But then
it is clear that the witness did not hear the whole. He heard
nothing until the quarrel became loud and violent, and the
beginning of it escaped him. Although, on the whole, the
Court might be hiclined to believe on this evidence alone.

MAINE, 1844. 225

Carelton v. Davis.

that an unjustifiable assault was made by the master, yet it
would be a conclusion to which one would come from an
imperfect account of the whole affair, and of course a con-
clusion upon which the mind could not rest with entire sat-
isfaction.

But then we have the testimony of Dunning, the mate,
also, to a part of the affair, which, although not necessarily
in contradiction to that of Cook, gives to the case, on the
whole, quite a different aspect. Dunning came to the par-
ties while they were engaged in the scuffle, and the libellant
then had the master down, and it was with considerable dif-
ficulty he succeeded in pulling him off. But it does not ne-
cessarily follow that the one who has the better of a fight at
the close, is the one who provoked and began it; nor is it to
be easily believed that a seaman, without some strong excit-
ing cause, would commence an assault on the master. I do
not recollect a single instance, among all the assaults and
batteries that have come before me, and they have been pret-
ty numerous, where a seaman gave the master the first
blow ; nor do I now remember a case where he returned
a blow. Indeed, it must be a very peculiar case in which
a seaman could be justified in returning a blow. The
marine law is very strict on this subject. " The mariner,"
says the Consulate of the Sea, "is bound to bear with
the master if he reproves him in injurious language, and
if he makes an assault upon him, he ought to fly to the
prow and put himself on the side of the chains, if the mas-
ter passes them he ought to fly to the other side, and if the
master pursues him there, he may call witnesses and stand
upon his defence." CA. 165. Waiving the minute and stu-
diously exact directions contained in this article of the Con-
sulate, in its general spirit and object it constitutes the mari-
time law of the present day, and is confirmed by all the
most authoritative expositions of the law. Jugemens d OU
eron, Art, 12. - Cleirac, page 48. Laws of Wisbuy, Art 26.

226 DISTRICT COURT,

Carleton o. DaTia.

Ord. de la Manne, Liv. 2, TU. 7. Valin, p. 653. Emeri-
gon, TraM des Assurances^ Ch. 12, Sect. 6.

It is only in very extreme cases that a seaman can be jus-
tified in turning upon the master and resisting him with
force, and when he can protect himself from a dangerous as-
sault in no other way. Nothing could be more pernicious to
the police of the sea, than to admit that a seaman might, as
a general rule, resist the master by force, even when inflict-
ing undeserved punishment. It would be sure to lead to nu-
merous scenes of violence and insubordination, and endan-
ger all authority. The duty of a seaman, in such case, is to
submit to wrong. The nature of the master's authority,
which is of a qtiasi parental character, and the necessities of
the service imperiously require it On his return to port, he
may appeal to the law for redress, and the master will be
held to strict responsibihty for any abuse of his authority.
If he does not do this, but takes jurisdiction of his own
wrongs, and seeks redress from his own hands, the Courts
will be slow in entertaining his complaint, and taking juris-
diction of an appeal from a wager of battle, even if origin-
ally he had just grounds of complaint He may be in dan-
ger of impairing a good cause of action by matter ex post
facto.

Unfortunately, in this case, we get from the testimony but
a mutilated account of detached parts of the afiair, and have
no account of the circumstances with which it commenced.
In the absence of proof, the Court cannot let itself loose into
speculations on probabilities. And the complainant who
asks for the interposition of the Court, must make out his
case. However well founded the cause of the complaint
may be, if it cannot be proved, he can have no decree in liis
favor, for the decree must follow the allegations and the
proofs. This is an infirmity that belongs to all the adminis-
tration of human justice. In jurisprudence, a fact that can-
not be proved is the same as a fact that does not exist
Mere probability, founded on general presumptions, however

MAINE, 1844. 227

Carleton v. D«Tifl.

they may incline the private judgment of the man, cannot
amount to that judicial proof that is required to satisfy the
magistrate. It is a remark of the most profound of all the
conmientators of the Roman law: Qu(b non est plena Veri-
tas est plena falsUas, non semi-veritas. Sic quce non est
plena probatio plane nulla probatio est. Cujas — cited TouU:
Droit Civil, vol 8, No. 8. And this rule, when applied to
the whole merits, is certainly sound, however questionable
it may be in its application to the doctrine of semi-proofs^
admitted in the jurisprudence of some of the continental na-
tions of Europe.

Now, though it is sufficiently apparent that the libellant
received a pretty severe wound in the scuffle, it does not ap-
pear how the wound was* made. It might have been by a
blow of the captain with a billet of wood, or it might have
been received in the fall, when he was thrown down by the
mate. But then whatever punishment may have been in-
flicted by the master, it was preceded by a gross fault on the
part of the libdlant. When called to duty, in a time of
great peril, he had not answered the call, and when called a
second time he «ame tardily. In such a case, some haste
and impatience on the part of the master might well be par-
doned ; and if, in reproving a tardy and unwilling man, there
was something of an overcharged manner, and even if the
reproof was accompanied with moderate personal chastise-
ment to hasten the movement of a loiterer, a maritime Court
would certainly feel inclined to look upon it with indulgence.
Such is not the time, as has been well observed, when we
are to look for gentleness of manner and a measured caution
in the appliances resorted to for the purpose of enforcing
quick obedience. The necessities of the service demand the
greatest promptitude, and the punishment of the moment
may be indispensable to hasten a dilatory and unwilling sea-
man. Boulay Paty, Droit Maritime, vol 1, Tit. 4 {prole-
gom^nes), p. 374.

Where a seaman complains against the master for an as-

228 DISTRICT COURT,

Carleton v. DatUi.

sault, and it is proved that he has been guilty of miscondoct
which would justify some punishment, he cannot entitle
himself to a decree but by showing that the punishment was
excessive in degree, or unjustifiable in kind. The master
has a right to correct the disobedience of a seaman by cor-
poral punishment, in cases where the necessities of the ser-
vice call for it, and, though it should be sparingly resorted to,
a Court will not hold the master amenable, if he does not
pass the limit of a reasonable and moderate discretion.
However the truth of the fact may have been, the libellant
has failed to prove that this limit has been passed.

But there is another fact proved that places the libellant in
a very unfavorable light, and that is the insolent and mutin-
ous manner in which he turned -upon the master after he
was first torn from him by the mate. It is in proof, that the
master was at the time in a feeble condition from ill health,
and the libellant had already ascertained by trial his own
superiority of strength. Now this violent and criminal at-
tack would go far, in the Judgment of a maritime Court,
which is always disposed to uphold the just authority of the
master with a steady hand, to impair a good cause of com-
plaint. It exhibits him in the light of a man of unchasten-
ed and ungovernable passion. It also throws back some
light on the obscurity of the preceding part of the afiair, and
justifies a suspicion at least, that he was not backward to en-
gage in the fight in the first instance.

I pass over without remark the supposed acknowledg-
ments of the libellant, after his arrival in this port, of the
general good treatment he had experienced from the master.
Seamen are often artfully surprised into such acknowledg-
ments by the friends of the master, when it is apprehended
that some controversy may arise, for the express purpose of
using them in evidence. They arc always a suspected kind
of evidence, and are usually entitled to very little considera-
tion.

Libel dis?nissed.

MAINE, 1845. 229

!n Re Mar wick.

IN THE MATTER OF ALBERT MARWICK.

Whether under the bankrupt act tlie creditors of a partnership can be al-
lowed to prove claims against the separate estate of one of the partners
to receive dividends, in concurrence with the separate creditors of the
partner, when there is no joint estate and no living solvent partner —
Queere ?

If there be any joint fund, however small, such proof cannot be allowed,
although such fund may have been created by the separate creditors
pivchasing some of the partnership assets, actually worthless, for the
purpose only of creating it ; for if there be a joint fund, the Court can-
not, under the statute, look behind the fact, to inquire how it lias been
produced.

May 31, 1845. This was a case of objection to a proof
of a debt. Marwick, the bankrupt, in May, 1837, entered
into a copartnership with one Frederick Davis, and as part-
ners they purchased a quantity of provisions for the Georgia
Lumber Company, to the amount of $800, for which they drew
their bill on the company in favor of one Bradbury. Before the
bill was paid, the company failed, and the failure of the com-
pany produced that of the copartnership of Marwick & Davis,
by which the firm was dissolved. They afterwards gave their
joint note for the sum remaining due, viz., $74088. This
note, Bradbury, for a valuable consideration, transferred to
Dole, with notice that it was a partnership debt. The as-
signee of Marwick & Davis, rendered in his account of the
joint estate, Oct. 25, 1844, shewing outstanding demands, in
favor of the firm, to the amount of $13,000, which compris-
ed the whole assets of the firm, and which were all repre-
sented as utterly worthless. Dole, the creditor, proved his
debt, June 17, 1842. The assignee, after rendering his first
account, applied for liberty to compromise, or sell, the claim
against the Georgia Lumber Company, which was disposed
of for $40, of which a supplementary account was rendered,
and the amoimt paid into Court, April 25, 1845, to the credit
of the joint estate. The final account of the assignee o£ the

230 DISTRICT COURT,

In lU Marwick.

separate estate showed assets to the amount of $546 93. Two
debts have been proved and allowed against the estate, one
by Charles E. Marwick, for $684 04, and the debt of Dole.
Marwick objected to the admission of Dole's debt against the
separate estate.

Ware, District Judge,

Two questions have been raised and argued in the present
case. The first is whether the creditors of a copartnership
can, in any case, be admitted to prove their claims against
the separate estate of one of the copartners, for the purpose
of receiving dividends in concurrence with the separate
creditors of the copartner. The second is whether, admit-
ting that they may in some cases, the partnership creditors
can be admitted so to prove under the facts in this case.

The 14th section of the bankrupt act provides, when two
or more persons become bankrupt who are partners in trade,
that separate and distinct accounts shall be kept, in the set-
tlement of their estates, of the joint effects of the firm and of
the separate effects of the several partners, and when the
whole expenses are paid, that the net proceeds of the joint
property shall be applied to the payment of the joint credi-
tors, and the separate property of each partner shall be appli-
ed to the payment of his separate creditors, and that the
creditors of the respective estates shall be allowed to receive
dividends from the other estate only after the creditors of
that estate shall have been fully paid. This is in substance
the rule established by the law, and it is quite clear where
there is both a joint and separate estate, that the creditors of
neither can prove against the other estate for the purpose of
receiving dividends, except from the surplus remaining after
its own proper creditors have been fully satisfied.

This general rule for marshaling the assets and claims is
taken from the English bankrupt law. But under that sys-
tem there are exceptions, as well established as the rule it-

MAINE, 1845. 231

In Re Marwick.

self. One of these exceptions is where there is no joint es-
tate and no living solvent partner, as is the fact in the pres-
ent case. In such a case, the joint creditors are allowed to
prove and receive dividends against the separate estate, in
concurrence with the separate creditors. Story on Partner-
ship, § 372. Eden on Bankruptcy , 172. But to bring the
case within the exception, there must be absolutely no joint
estate. If there be any, however small, the exception is not
allowed, and it has been rejected where the joint estate
amounted only to £1 lis. 6d. And again, therem ust be no
living solvent partner — and solvent is here used not in its
ordinary sense, that is an ability to pay the whole of one's
debts — but in the sense of non bajikmpt partner. For
though he may be in fact insolvent and unable to pay the
whole of his debts, if he be not actually in legal bankruptcy,
the exception is excluded and the general rule prevails. 3
Maddocks* Rep, 229, Ex parte Jaiisen, The principle is, that
while there is any fund, however small, to which the joint
creditors may resort, they cannot come against the separate
estate in competition with the separate creditors ; and though
a person may be insolvent, if he be not in actual bankrupt-
cy, and thus divested, of alibis property, he may still have
the ability to pay part of his debts, and this possibility is
held to be enough to exclude the joint creditors from sharing
in the separate estate of the bankrupt partner, except in the
surplus after the separate creditors are paid.

Such is the general rule under the English bankrupt laws,
and such the character of the exception to the rule, which it
is supposed may be admitted under our law. Our statute has
adopted the general rule, without taking notice of any of
the exceptions. It does not appear to contemplate the case
of there being no joint property, and as it passes it by in si-
lence, it may be a grave question, whether it does not leave
such a case open to the application of the general principles
of eqnity. But as there is a joint fund in the present case, it

232 DISTRICT COURT.

Jn Re M&rwick.

is immaterial whether it does' or not, unless the Court may
look behind the fact of there being a joint fund, to the man-
ner in which it has been created.

It appears from the proofs in the case, or the facts which
are admitted, that the assignee rendered in his first account
of the partnership estate in October, 1844, in which the whole
of the assets, consisting of outstanding demands, are repre-
sented as worthless ; that afterwards he applied for liberty
to compromise or collect a debt, on which he obtained $40,
and rendered into Court a supplementary account ; and it
further appears, that the money to take up this note was ac-
tually advanced by Charles E. Marwick, as creditor of the
separate estate. Now the argument is, that if the exception
to the general rule of marshaling the assets and debts, es-
tablished under the English bankrupt system, may be admit-
ted under our statute, then, as it is founded on the general
principles of equity and distributive justice, a creditor of the
separate estate ought not to be permitted to defeat the equity
of the joint creditor, by purchasing for a small sum a part-
nership demand, for which nothing could have been ob-
tained but for this purpose. Allowing the premises on which
the argument is founded to be correct, it does seem to
present itself with some force to the equitable consideration
of the Court. The effect in the present case will be, that
the separate creditor will receive nearly the whole of his
claim and the joint creditors but a small percentage, if each
is restricted to his own appropriate fund.

But after considerable reflection I have come to the conclu-
sion, that, admitting the assumption on which the argument
is founded, it cannot prevail. In the first place, if this mat-
ter is viewed as a struggle between the two classes of credi-
tors, it is a strife on the part of the separate creditors, not
de Iticro captando^ but de damno vitando, A creditor may,
without any grave imputation in the forum of conscience, be
allowed all fair and legal means to avoid a loss, though it
may incidentally be at the expense of another creditor. And

MAINE, 1845. 233

/ft Re M&rwick.

though it is a maxim in equity jurisprudence ihdit equcUUy is
equity, yet the Court holds the maxim subordinate to legal
priorities, which one party may by his diligence acquire over
another. And further, the whole subject, of marshaling the
assets and claims between the joint and separate creditors in
bankruptcy, involves some of the most difficult problems that
occur in the whole range of jurisprudence. It has hitherto
been found impracticable to establish any general rule that
will meet the equities of all the various cases that come up
in practice ; and the Courts have been finally compelled, in-
stead of subjecting the whole to a rigorous analysis and ex-
tracting a system of rules which will carry out the principles
of natural justice, to cut down the difficulties by establishing
a general rule, which at first seems conformable to general
equity, and then to limit and qualify it by a number of ar-
bitrary exceptions, in order to meet the particular equities of
particular cases. Eden on Bankruptcy^ 169, 174. Story
on Partnership, § 374, 382.

This system is admitted to be not entirely satisfactory;
it has sometimes been departed from and again restored, and
is now adhered to, not because it is in all respects conforma-
ble to the principles either of positive law or of natural equi-
ty, but partly as a rule of convenience, as it has been some-
times called, and partly because no system has been hither-
to presented as a substitute, which is not found to be encoun-
tered by equal difficulties. 17 Vesey, 207, Dvtton vs. Moif'
rison. 3 Vesey, 238, ex parte Elton,

If then we admit that the equitable doctrines of the En-
glish Courts, in the administration of their bankrupt law, are
applicable under our statute, how will the case stand?
In the first place, if this fund had been brought into
Court in consequence of the purchase of this note by any
other person than a separate creditor, it is clear there would
have been an end of the case. What difference does it make
that he has advanced the mohey, and thus created the fund ?

234 DISTHICT COORT,

/» Rt Marwiok.

It was the duty of the assignee to make the most of the e^
sets. If, with the knowledge that $40 could be obtained by
the transfer of this note, he had rendered it into Court as
worthless, he might have been compelled to pay the money
out of his own pocket. The fund would then have been
produced in this way, and the joint creditor would have been
in the same condition be is now. It was not for the assignee
to inquire who the purchaser was, or what were his motives
in making the purchase. And even suppose that he might
have done this and refused to sell to a separate creditor for
such a purpose, the creditor might have gone to the
debtor and furnished him the money to take up the
note, and thus indirectly obtain the same result. And
indeed this seems to have been the course adopted in
the present case; for the note was nominally taken by
one of the company, who was liable upon it, though Ae

money was advanced by the creditor. So that if we were to
adopt the principle of going behind the fact of there being a
fund, to inquire whether that had not been inequitably creat-
ed by the management of the separate creditors, the Court
would at once be involved in inextricable difficulties.

The object of this inquiry is to reach the supposed equity
of the case, by making a more just and equal distribution of
the assets between the different classes of creditors, and to
prevent the separate creditors from creating out of worthless
assets a small fund for the sole purpose of preventing the
joint creditors from sharing with them the separate assets.
But after all, is not this supposed equity more apparent than
real ? Each class of creditors originally trusted to different
funds and different responsibilities, one to the social and one
to the separate responsibility. The general equity would,
therefore, seem in all cases to confine each class of creditors
to that fund to which they primarily trusted, unless in a case
where there had been a fraudulent or improper abstraction
from one estate for the purpose of increasing the other. And
this is the general rule, not only in bankruptcy, but in gen-

MAINE, 1845. 235

In Ma Jdarwick.

eral equity. Bach class of creditors has a right of prior
payment out of ihe estate to which be is supposed to have
given credit, and the other class can only go against the sur-
plus. If a creditor of one partner attaches partnership prop-
erty, his attnohmeut only holds the right or interest whkh
the parties shall be found to have in the property after an
account is taken and the joint creditors are paid. KenSs
Ctym* 64-6, Note c. bth edition. Story's Partnership, $ 363.
The equity of each class of creditors against their proper
fund, certiainly seems to be stronger than that of the other
class who never could have looked to it for their security,
except 80 far as there might be a surplus aAer discharging its
own proper liabilities.

The general rule therefore has its foundation in natural
equity, and it is established by the law. The law itself makes
no exception. .Now, admitting the caie of there being
no joifit estate to be a casus omissus, not contemplated and
therefore not within the purview of the law, it certainly cov-
ers all cases where there is a joint fund, without inquir-
ing into its origin. And it is a rule in the construction of
statutes, that when the statute covers the whole case in all
its circumstances, and makes no exceptions, none can be made
by the Court.

My opinion, on the whole, is, that the proof cannot be ad-
mitt^ against the separate estate, in competition with the
separate creditors.

236 CIRCUIT COURT,

Bamham v. Webster.

NOAH BURNHAM versus EBENEZER WEBSTER.

A replication which alleges two distinct and independent facts, either of
which is a complete answer to the plea, is double, and is bad. on spe-
cial demurrer.

A former judgment is not pleaded with a profert, but a profert is tendered
in reply to the plea or replication of nul tiel record.

A plea of a foreign judgment must contain an allegation that the Court
had jurisdiction, or so much of the proceedings must be spread on the
record as will show affirmatively that the Court had jurisdiction.

A foreign judgment is not considered as a record and a plea to such judg-
ment of nul tie] record is bad. The opposite parQr may treat the plea
as a nullity and take judgment

June 2, 1845. This was an action of assumpsit on a
promissory note of one thousand dollars. The defendant
pleaded the general issue, and, for a second plea, a former
judgment of the Supreme Court of New Brunswick, in fa-
vor of the defendant Issue^vas joined by the plaintiff on
the first plea, and to the second he replied that the Supreme
Court of New Brunswick was a foreign Court and had no
jurisdiction of the subject matter of this suit at the time
when the judgment was rendered, and that the note set forth
in the declaration was withdrawn from said Court by con-
sent of the parties and by leave of the Court before the ver-
dict and judgment

To this replication the defendant demurred specially, and
assigned for causes of demurrer that the replication was
double and argumentative, and the plaintiff joined the de-
murrer.

Sheplcy, for the plaintiff; Rand, for the defendant

Ware, District Judge.

By the rules of pleading there can be but one replication
to one plea. The defendant may indeed put into the cause

MAINE, 1845. 237

Burnh&m v. Webster.

several pleas, but each plea is distinct and must be single ;
it must contain but one matter of defence, that is, it must not
contain two or more facts or points, each of which would be
an answer or defence to the action. The replication in like
manner must be single, and confined to a single answer, and
if it contains more than one, each of which would be a full
answer to the plea, it will be held on demurrer bad for du-
plicity, for it must tender a single issue.

Tried by this test can this replication stand ? It alleges
in the first place that the Court had no jurisdiction of the
subject matter of this suit. This, alone, is a complete an-
swer to the plea on which the defendant might take issue,
and if found for the plaintifi* that the Court had not juris-
diction there is an end of the defence set up by the plea. For
if the Court had no jurisdiction the judgment would be con-
sidered as a nullity, and not in any way afiecting the rights
of the parties.

In the second place, the replication alleges that the note
now declared on was, by consent of parties and leave of
Court, withdrawn from the case before the verdict and judg-
ment This allegation admits the jurisdiction of the Court
over the parties and the subject matter at the time when the
action was commenced, and then shews that it was with-
drawn from the jurisdiction by the leave of the Court
and consent of the parties, so that no adjudication was in
fact had on the note. This is also by itself, and independent
of any other matter, a complete answer to the plea, on which
the defendant in a rejoinder might take issue. If the de-
fendant had rejoined instead of demurring, the rejoinder
must, to answer the replication, have been double and pre-
sented two distinct and independent issues.

It is contended in favor of the replication that it is not
double, because it presents but a single point, and that is
that the judgment is not conclusive. But it is obvious that
a judgment may not be conclusive on the parties for more

258 CIRCUIT C0U3RT,

Bttrnhani «: Webster.

reasons than one. But in replying to a plea the plaintiff is
not allowed to put in several replications to a single plea, as
a defendant may put in several pleas to a declaration. When
a foreign judgment is declared on, the defendant fnay in dif-
ferent pleas allege several distinct and different reasons why
it should not be conclusive on his right, as the want of juris-
diction in the Court, or fraud in obtaining the judgment, or
that it is invoked to affect the rights of third persons by col-
lusion between the parties. But when it is pleaded in de-
fence to an action, though the plaintiff may believe that the
judgment is not legally binding for several reasotis, he is by
the rules of pleading precluded from availing himself of more
than one. He must select from his various means of defence
the one on which he chooses to rely. The plaintiff having
in this case included in his replication two distinct matters,
either of which is a complete answer to the plea, the repli-
cation must be adjudged bad.

But then it is contended that if the replication is bad, so
also is the plea, and that a bad replication is good enough
for a bad plea, the general rule being that where there are
successive faults in pleading we must go back to the first
fault. The plea it is contended is bad for two causes. 1. It
is pleaded without a profert 2. Because the plea does not
allege that the Court had jurisdiction of the parties and of
the subject matter.

The first objection cannot prevail. In causes where a
profert is necessary, the omission can only be taken advan-
tage of by special demurrer, and the objection is waived by
pleading over. Chitty on Pleadings 350, 512. And when
a judgment is relied on in a declaration as a ground of ac-
tion, or in a plea as a defence, it is never declared on or
pleaded with a profert. {^See precedents in American Pre-
cedents^ page 347, and 2 Chitti/s Pleadings 232, and 3
Chitty, 'ZSr, for Declaration. 2 Chitty, 636 and 673, plea
mil tiel record, and replication,) The profert is made in re-

MAINE, 1845. 239

Bnmhftin v. Webster.

ply to the plea of nul tiel record^ and the party then has
time to produce the record. 3 Black, Cam. 331. And fur^
ther, foreign judgments are not considered by the common
law as records and cannot be declared on and pleaded tech-^
nically as such. In the case of Walker vs. Witter, I Doug.
the plaintiff declared in debt on a judgment recovered in
the Colonial Court of St Jago de la Vega, '^ as by the record
and proceedings thereof remaining in said Court will more
fully appear," and the defendant replied ntd tiel record The
Court said the prout patet per recordum was shsannd be- oAom^imi
cause the foreign judgment in the view of the common law
wa6 norepord, but that it might be rejected as surplusage;
but that the plea of nul tiel record was a nullity, and gave
judgment for the plaintiff. =*

The second objection involves a question of more difficul-
ty. The plea is in the common form of a plea of do-
mestic judgment. Whatever difference of opinion there may
be as to the binding force of foreign judgments, all agree that
they are not entitled to the same authority as the judgments
of domestic Courts of general jurisdiction. They are but,
evidence of what they purport to decide, and liable to be con-
trolled by counter evidence, and do not, like domestic judg-
ments, import absolute verity and remain incontrovertible and
conclusive until reversed ; and the question of the jurisdic-
tion of the Court over the matter which it acts upon is al-
ways an open question. As to the authority and effect of such
judgments they are rather assimilated to the judgments of
domestic Courts of limited and special jurisdiction. Now,

"* Since the union of Ireland and Great Britain, Irish judgments are plead-
able as records ; but when the plea of nul tiel record is pleaded it should
coBclnde to the country and not with a verifieation ; because the ^record
covld not be produced in Court, and it must be by an examined copy and
proved by oath, and so must go to the jury. 5 East. 474, Colliru vs. Ma-
thew. If it is a domestic judgment the original record is brought into Court
to be inspected by the Court. 5e« 11 M. and Ell. 179; 39 C. R. L. 38.

240 CIRCUIT COURT,

Bamham v. Webster.

withjespect to the judgments of these Courts when they are
relied upon, it must always appear that the Court rightfully
exercised jurisdiction. There is no presumption in favor of
their authority as in the proceedings of Courts of general ju-
risdiction, but that must appear on the face of their proceed-
ings, or their judgments will be held not merely voidable, but
absolutely void and nullities. 9 WAeaton, 947-9, Walker
vs. Turner. 1 Peters, 340-1, Elliot vs. Piersol

Formerly it was held in pleading the judgment of an in-
ferior CfttJYf," whether of record or not of record, that the
whole proceedings must be set out out at large. Nothing
was presumed in favor either of their jurisdiction or of the
regularity of their proceedings. It was therefore not suffi-
cient to allege taliter processum fuit, but the whole must be
spread upon the record by the party relying on the judgm^it,
that it might be seen that the Court had jurisdiction and that
the proceedings were regular. CotnyrCs Digest, Pleader E.
18. But the rigor of the old rule has been relaxed in mod-
em times, and it is now held not to be necessary to set out
the cause of action and the whole proceedings at large, but
that it is sufficient to allege that the suit was for a cause
of action arising within the jurisdiction of the Court. 1 Saun-
ders' Rep. 92, Note 2. Story's Pleading, 134. And the
regularity of the proceedings will be presumed unless ex-
cepted to by the other party. But still it must appear tha^
the Court had jurisdiction, either by a suitable allegation «of
the party relying on the judgment, or by spreading on the
record so much of the proceedings that the Court may see
that the inferior tribunal could rightfully take cognizance of
the cause. For the Court will not presume the jurisdiction
imless it is distinctly alleged or is apparent on the record.

It is indeed said by Lord Mansfield, in the case of Row-
land vs. Veale, Cowper, 18, that the same liberality holds,
in pleading the judgment of an inferior Court, with regard
to the jurisdiction as does with regard to the regularity of

MAINE, 1845. 241

Barnham v. Webster.

its proceedings ; that is, that it will be presumed to be right-
ful unless the contrary is shown ; and therefore that it is un-
necessary to allege that the party *' became indebted within
the jurisdiction." For if the cause of action did not arise
within the jurisdiction, it should have been shewn to the
Court below ; or, if it was not alleged in the Court below,
it would be bad on error or in a writ of false judgment.
This however was but an obiter dictum, for in the case
before the Court it was alleged in the plea that the cause
of action came within the jurisdiction. But with the ex-
ception of this dictum the precedents and the authorities are
the other way.

Foreign judgments are held to have no greater sanctity or
authority than domestic judgments of inferior Courts. It
must appear by the proceedings or be alleged in the plea
that the Court had jurisdiction of the cause, for the Court
will not presume, nor can it be contended that it is a pre-
sumption of law, that a foreign Court has jurisdiction over
parties who are inhabitants and residents of this country.
Now it is not alleged in the plea nor is there any thing
spread on the record which shews that the foreign Court
had jurisdiction over the parties or the cause in this case.
It appears to me, therefore, that the plea is bad not in form
merely, which might be covered by pleading over, but in
substance.

The only question of doubt, as it appears to me, that can
arise is whether it lies in the mouth of the plaintiff to say
that a Court to whicU.he had himself voluntarily appealed,
and whose authority he had invoked, had no jurisdiction to
determine the matter, and that its proceedings might be
treated as a nullity. If the question stood entirely clear
of authority, it is one on which I should feel inclined to
pause.

It seems to me to be repugnant to the first principles of
social order and civil justice, that a party should be allowed

242 CIRCUIT COURT,

Sheplej «. Raagely.

to deny the competence of a tribunal of his own choosing,
and to whose authority he had compelled the other party to
submit. If he may, I do not see but that he may harass
the adverse party with a new suit in every new jurisdiction
where he may be found, without prejudice from prior judg-
ments which may have been rendered against him by other
Courts. But the language of the authorities does not appear
to indicate any distinction of the kind, or that a foreign
judgment is binding any further on the party bringing the
suit than on the party defendant

JOHN R. SHBPLEY versus JAMES RANGELY.

In a suit in equity lor a perpetual injunction, it appeared that the plaintiff
claimed title under a deed from John Spring, dated April 14, 1832.
The defendant, under a levy on an execution of July 9, 1839, traced
back his title to a mortgage of Spring, of January, 1830. Neither par-
ty was in possession of the land, but Spring was in possession, holding
adversely to both.

Held, that if this was to be considered as in the nature of a bill quia timBL
it could not be supported until the title was determined by a suit at law.

A Court of Equity has jurisdiction in such cases, to decide on fiicts with-
out the intervention of a jury, but will not usually do so when the ev-
idence is contradictory or inconclusive.

This was more properly in the nature of a bill of peace. To maintain
such a bill when the interest of the plaintiff is present, and not future,
as in remainder or reversion, and he has a present right to the posses-
sion, three things must concur. 1. He mus^have the actual possession.
2. That possession must be disturbed. 3. His right must have been
previously established at law.

Where a party cannot bring his title to an immediate judicial examination
because his interest is future, as in remainder, or because he is in
possession, the only bill which can be maintained, is a bill to perpetu-
ate the testimony.

A Court of Equity will not entertain a bill, under the pretext of quieting
the possession, to determine the rights of parties where there has been
no suit at law to tr' the title.

IfAINE, 1845; 243

Sli«pley V. Rangelj^.

October Term, 1846. The facts of this case as they ap-
pear in the pleadings and evidence, are shortly as follows.
John Spring and Olive, his wife, on the 4th of January, 1830,
mortgaged the land in controversy, together with other real
estate, lying in the town of Saco, to the Saco Bank, to se-
cure the payment of a note of $6000. Spring, April 14,
1632, conveyed, by a quit-claim deed, to Ether Shepley, the
eqity of redemption of certain lands mortgaged to SaraK
Parkman, and by the same deed conveyed this land now in
controversy, which was included in the mortgage to the bank,
for the consideration of $1000. On the 9th of May, or of
June, 1833, (for the evidence leaves it uncertain which,) the
bank by their attorney, Ether Shepley, the plaintiff's grantee,
entered on the land for condition broken, and on the 9th of
June, 1836, three years having elapsed, the mortgage, as con-
tended for the defendant, became foreclosed, and the title of
the bank absolute. On the 13th of September, 1833, the bank
conveyed all its estate and effects to trustees to sell and dis-
pose of, for the purpose of winding up the business of the
bank and dividing its effects among the stockholders. Oi
the day when the time of redemption expired, that is, on the
9th: of May or June, 1836, Spring offered in payment of the
debt, the check of Webster, payable at a future day, but the
trustees refused to receive it as payment, and it was left with
them as collateral security for the debt, and the following
day Spring assigned to them a policy of insurance on his
house, which was included in the mortgage as further secu-
rity. On the 13th of July, 1836, one month or more after
the foreclosure of the mortgage, on the payment of the full
stun due to the bank, the trustees, at the request of Spring
aad his wife, by a deed of quit-claim conveyed the land to
Webster; the money, to the amount of $5000, having been
advanced by him; and the balance, $200, was paid by
Spring. The deed recites, that entry had been made to
foreclose the mortgage, and that the right of redemption had

244 CIRCUIT COURT,

Shepley «. Raagely.

expired, and that Webster having, at the request of Spring,
paid the amount that would have been due on the mortgage,
the conveyance was made at the request of Spring and his
wife, to Webster, and was intended to discharge all the title
acquired by the bank. The deed was drawn by the plain-
tiff's grantor, and the acknowledgment taken by him. Web-
ster, as is alleged in the bill and not denied in the answer,
conveyed the laiid by deed, April 12, 1832, to Daniel Burn-
ham ; but the defendant alleges, that before that time, he at-
tached the land as the property of Webster in a suit against
Webster and Burnham, and prosecuted his suit to judgment,
on which execution was issued in June, 1832, and within thir-
ty days after the rendition of the judgment levied on the land.
On the 6th of April, 1843, Ether Shepley conveyed his title
by a deed of gift to the plaintiff, and he claimed to hold
the land under Spring's deed to his grantor, of April 12, 1832.
The defendant claimed title under his levy, tracing it back
to the mortgage to the bank, of January 4th, 1830.

The prayer of the bill was, that the land may be declared
to stand redeemed from the mortgage, that the levy of Range-
ly may be declared to be inoperative and void, and that the
defendant be required to release his title to the plaintiff, and
be perpetually enjoined from setting it up against the plain-
tiff.

G. F, Shepley, for the plaintiff; C. S. ^ E. H. Daveis
for the defendant.

Ware, District Judge,

I have not thought it necessary to examine all the questions
which arise out of this record, and which have been so elab-
orately and learnedly argued at the bar, because, from the
view I have taken of it, the decision of the cause must turn
on the single question of the jurisdiction of the Court. The
bill seeks to draw into equity, questions which seem to me

MAINE, 1845. 245

Sheplej V. Rangely.

properly belong to the forum of law. The plaintiflF claims
title under a deed to his grantor, Ether Shepley, of John
Spring, dated April 14, 1832, and the defendant under a levy of
an execution in his favor of July 9, 1839,against Webster and
Bumham, and traces back his title through Webster and the
bank to the mortgage of Spring and his wife, of January 4,
1830. The titles of both parties are strictly legal, nor do I
see that they are affected by any equities that should with-
draw them from the cognizance of a Court of law to the ju-
risdiction of equity. There is nothing in them that I see,
which will prevent a Court of law from doing complete jus-
tice between the parties. In truth, the bill does not suggest
nor rely on any thing of the kind, or at least on any thing
that should give jurisdiction to equity until the title of the
plaintijBT is established at law.

The bill sets out the title claimed by the defendant, and
alleges that nothing passed by the levy, inasmuch as there
was no foreclosure under the mortgage ; first, because there
was no valid entry to foreclose the three-acre lot in contro-
versy ; secondly, because the mortgage was discharged by
the payment of the debt. Then, as a ground of giving the
Court jurisdiction, it is contended that this outstanding claim
of superior title by the defendant, may hang as a cloud over
that of the plaintifi", and that he is entitled, in equity, to have
that removed, that is, to have the pretended title of the de-
fendant declared void, and to have a perpetual injunction
against his ever setting it up in a Court of law in opposition
to that of the plaintiff. The bill may, therefore, be consid-
ered as in the nature of a bill quia timet and bearing an
analogy to that class of bills which are brought to have void
instruments delivered up and cancelled. 2 Story^s Equity^
$ 694, 698. In these cases the old practice of the Court was,
when the validity of the instrument was in controversy, to
direct a trial by jury, to ascertain the fact But, as the Court
has jurisdiction to determine matters of fact without the in-
tervention of a jury, latterly the more convenient and less

246 CIRCUIT iCOUET,

Shepley v. Rangelj.

expensive course, in some cases, is adopted for the Court to
determine the fact itself. 5 Johns. Ch. 118, Smith vs. CarH
2 Ves. Jr. 484, Newman vs. Millner. 7 Ves. 413, Jerms
vs. White. Still it is the present practice of the Court when
the facts are doubtful and the evidence contradictory and not
entirely conclusive, to take the opinion of a jury. 2 Stoty$
Equityi, §702.

The validity of the defendant's title, which the plaintiff
asks the Court to declare void and restrain him from setting
up at law, depends on questions partly of fact and partly of
law. It is founded on a levy on the land as the property of
Webster, who derived his title under a deed from the trustees
of the bank. It is not disputed that the legal estate was
transferred by the bank to the trustees, and that the deed of
the trustees was sufficient to convey whatever legal interest
was vested in them at the time of the conveyance. If any in-
terest was transferred, and that was such an interest as could
be taken in execution, then it is not denied that the levy was
good to pass that to the defendant. The questions then which
arise and have been argued at the bar are, whether any and,
if any, what estate passed to Webster. The argument of
the plaintiff is, first, that the deed was entirely inoperative
and nothing passed; or secondly, if anything passed, it was
only an estate in mortgage. The argument of the defend-
ant is, that an estate in fee passed.

In the first place, was the deed wholly inoperative ? If so,
it must be because the title of the trustees was extinguished
before the conveyance by a payment of the debt The debt
was paid on the 12th of July, 1836, and the deed to Webster
bears date, July 13th, the day following. If it be admitted
that the mortgage title was extinguished by the payment of
the debt, and that no re-conveyance was necessary to revest
the title in Spring, the mortgagor, (3 Mason^ 520, Gray vs.
Jenks^) it is still true that it is the payment of the debt that
has the operation to revest the title in a mortgagor. Now tbe
money was advanced Jb|y Webster, and tbe conveyance was

MAINE, 1645. 247

Bhopley v. Rangely.

made to him by the direction of Spring. The payment was
the consideration of the deed, and in order to carry into ef-
fect the manifest intent of the parties, both must be consider-
ed as parts of one transaction, and the deed as operating from
the time of the payment. If the deed bears a later date, so
as to giTe time for the estate to revest in Spring before the
execution of a deed, and thus defeat its operation, the day of
the date must be considered as a mistake, otherwise it will
operate as a fraud on Webster. Indeed King in his deposi-
tion, who fixes the day of the payment, says that it was the
12th of July, the day when the deed wa3 executed. There
is, therefore, no doubt either that King is mistaken in the day
of the payment, or that there is a mistake in the date of the
deed. The deed must therefore be considered as having an
operation to convey whatever title was vested in .the trus-
tees.

What then was the title that was transferred 1 The plain-
tiff's argument is that, if anything, it was only a title in
mortgage, at least as to this lot: because there was no
valid entry to foreclose the lot in question. If the deed op-
erated merely as an assignment of the mortgage, then Web-
ster, as mortgagee, had no interest in the land which could
be taken on execution, and of course the defendant took noth-
ing in this lot by the levy, however it might be with respect
to the other lands set o£ 16 Mass. Rep. 345, Blanchard vs.
Colbum etal Z Pick. 484, Eaton vs. Whiting. The entry
of the bank was into the mansion house only, and the land
in ccmtroversy is a separate lot, not adjoining the one on
which the entry was made. Whether the entry was sufficient
to operate on this k>t, the facts being admitted, is a question
of law, and if the case is properly before the Court, it may
as well decide the question sitting in equity as it may sitting
as a Court of law, and, in my opinion, it was sufficient It
was open and peaceable, and the only objection is, that a
special entry was not made on this lot But it is well settled
law, that where a; party having title enters on one parcel in

I '

248 CIRCUIT COURT,

Sheplej V. Rangelj.

the name of all lying within the same county, it is a valid
entry to give him seizin of the whole, unless there are several
tenants in possession claiming a freehold in several parcels.
Lin. $417. Co. LUt. 252, b. 8 Crunch, 250, Green vj.
IMer. This lot, though not adjoining the mansion house,
was in the same town and in the possession of Spring. If
the entry then was good to foreclose the mansion house, it
was good to foreclose the mortgage of this lot.

The entry on the land was made either on the 9th of May,
or on the 9th of June, 1833, and the time of redemption ex-
pired as early, therefore, as the 9th of June, 1836. The title
of the trustees then became a fee unless there was a waiver
of their rights. It is said that if there was a foreclosure, the
the forfeiture was waived and the title brought back to a
mortgage, by the trustees receiving, after the time for re-
demption had expired, other collateral securities for the debt.
The argument proceeds on this ground, that as the foreclosure
was by entry in the presence of witnesses, that is by matter
in pais, it may be waived by matter in pai.9 and the absolute
title cut down to a mortgage, and that the trustees, by receiv-
additional securities for the debt after the foreclosure, virtual-
ly admitted and acknowledged their title to be a mortgage.
Now if it be admitted that these securities might be receiv-
ed under such circumstances as would amount to a waiver
of the forfeiture, and give the mortgagor further time to re-
deem, I think it difficult to be maintained that they might
not have been deposited with the trustees under such circum-
stances and on such terms as would not amount to a waiver
of the forfeiture ; and King, who transacted the business,
says in his deposition that he did not intend to do anything
that would prejudice the rights of the trustees under the fore-
closure. Taking then the case as it is put by the plaintiff's
counsel, as this is a question of legal title depending on mat-
ters in pais, and to be determined on the weight and effect of
evidence, if the evidence is not quite clear, it is precisely
such a case as a Court of Equity is in the habit of sending

MAINE, 1845. 249

Shepley v. Ran^relj.

to a jury. But without going into an examination of the ev-
idence at large, it may be safely said that it is far from be-
ing clear and free from doubt in favor of the plaintiff, and
therefore I think the defendant has a right to have his title
submitted to a jury. If this bill theu is to be considered as
in the nature of a bill quia timei, and to be governed by the
analogy of bills brought for the delivery up end cancellation
of void instruments, my opinion is, that the defendant's title
ought to be ascertained to be void, by a trial at law and the
verdict of a jury, before a Court of Equity is called upon to
enjoin him from setting it up.

But this suit appears to me to come more properly within
the analogy of one species of another class of bills, techni-
cally called bills of peace. Of these bills, there are two spe-
cies, one where a party is in possession of a right, which may
be successively controverted by many persons, as a parson's
claim of tithes, or a person claiming an exclusive right to a
fishery, or claiming tolls. He may in a single bill, by mak-
ing a sufficient number of persons parties who claim adverse-
ly, have his right established against the whole. 2 Story^s
Equity, ^854. Another case is, where a person is in posses-
sion of lands and his possession is disturbed by another
claiming title ; he may in some circumstances maintain a
bill, against the party that disturbs him, for the purpose of
qnieting his possession, and to enable him to have that un-
disturbed enjoyment to which in conscience and right he is
entitled. The relief granted in such a case, is that which is
prayed by the present bill.

But to maintain a bill of this kind, three circumstances
must concur. The plaintiff must have the possession ; that
possession must have been disturbed; and his right must have
been previously established at law. It is not enough that he
may fear that his possejssiou may be disturbed, or that his
right may be controverted or brought into litigation. This
doctrine is clearly stated by Lord Redesdale, in the case of
Devonsher vs. Newenhanl, 2 Sch. Sf Lefroy, 208. When-

260 CIRCUIT COURT,

Shepley «. Rangely.

ever a person, he says, claims title against another, who is
in possession and his enjoyment disturbed, a suit may be en-
tertained by the latter, for the purpose of quieting the pos-
session, and he illustrates this doctrine by the case where
several ejectment suits have been successively tried. In such
cased, after the title has been sufficiently established at law,
a bill of peace will be sustained and a perpetual injunction
granted, to put an end to vexatious Utigation. But he adds,
*' when the question is merely, whether A or B is entitled to
to the property, and there has been no actual suit between
them, there has been no instance where such a suit has been
entertained." He refers to the case of Welby vs. The Duke
of Rutlandy 6 Bro. Pari Cases, 675, as precisely in point,
to show that a mere adverse claim, and that asserted by an
act which does not disturb the possession and actual enjoy-
ment of the party, is not a sufficient foundation for a bill,
simply because it may at some future time bring a cloud over
the plaintijBT's title. In that case, Welby, the plaintiff, claim-
ed a manor, of which he had the possession, and the Duke
of Rutland, the defendant, also claimed title to it. and ap-
pointed a game-keeper. It was said in answer to the bi^,

•

that if Welby was disturbed in his possession, he might bring
an action and have his title established at law, and when
that was settled have an injunction. But there must first be
such a disturbance as would support an action, and then
the title ascertained at law. The naked assertion of a title,
or the doing an act in support of that assertion, which did
not interfere with the plaintiff's possession and enjoyment of
the property, would notauthorizeaCourtof Equity to inquire
into the foundation of the title and enjoin a party claiming
adversely from prosecuting his rights at law.

The case of Welby vs. The Duke of Rutland, is precisely
parallel to the case at bar, with this distinction against tb
present bill, that this plaintiff has not, and never has had tf
possession. Spring, a third person, has the possession, r

MAINE, 1845. 261

Shepley v. Rangely.

ding under either of the parties to this suit, but so far as
lears from the record, adversely to both. Both parties al-
set up titles, by which, if they have any rights, they have
linst him a right to the immediate possession. The object
this bill is to obtain a decree, not to quiet and protect the
intiflTs possession, nor to establish his own title against a
nber of persons who might in separate suits controvert it,
t to have the defendant's title declared void as against him.
is in fact to have the Court decide, which of these two par-
^ each having color of title, has the better right, when,
any which the Court can say in this suit, a third party,

has the actual possession, may have a title paramount to
h. The defendant might, with just as good cause, file a
. against the plaintiff, and with precisely the same reason
: the same relief against him. He might allege that the
)d of 1832, threw a cloud over his title, and ask the
art to declare that deed void and inoperative to affect his
lits, and that he might be enjoined from setting it up. To
tain a bill under such circumstances would, I apprehend,
a perfect novelty in jurisprudence. If the plaintiff were
Bictual possession of the land, and the defendant threatened
listurb him by setting up a paramount title, this bill could

be maintained, unless his possession and enjoyment had
n actually disturbed, and his title established by a suit at
r. The only bill which the plaintiff would then be enti-
i tO| would be a bill not to establish his title, but to per-
aate the testimony, if there were danger of its being lost,
t even such a bill he could not maintain, without first ob-
ling the possession. Then, being in possession and not
ring the power to bring a suit at law to have the right
ermined, if his title was denied and he was in danger
having it litigated at a future time, when his proof
;ht be lost by the deaths of witnesses, he would be enti-

1 to a bill to perpetuate the testimony. 2 Story^s Equity^
)02. 1 Simons ^ Stuart, 83, Angel vs. Angel. 6 Vesey,
.i Zrorcf Dursley vs. Berkley, in which all the cases on

262 CIRCUIT COURT,

F^^n «. Sanger U al,

perpetuating testimony are critically examined. 7 T^nqf,
413, Jervis vs. White. My opinion is, that the bill most
be dismissed with costs for the defendant

WILLIAM FERSON versus ZEBULON SANGER bt als.

In a suit in E>]|iiity by the purchaser, for finud in the sale of a chattel,
charging that the purchaae was made by A for and as the agent of B,
the deposition of A, taken to' prove the fraud, cannot be used, if it ap-
pear that A was jointly interested in the purchase.

The prayer of the biU being, that the purchaser should take up and pay
certain notes given by A and B jointly for the purchase money which
were in the hands of an eudorsei^ a covenant, by the endorses to A,
not to sue him on the notes, will not render him a competent whoess,
for he would be liable over to the endorser on his taking up the notes.

Courts of Equity will not entertain jurisdiction of a suit for damages
arising out of fraud, where damages are the sole object of the bill« for
the remedy is complete at law.

But where other relief is sought by the bill which can be had only in
Equity, and damages are claimed as incidental to this relief, Elquity, hav-
ing properly possession of the cause for relief that is purely equitable,
to prevent multiplicity of suits, will proceed to determine the whole
cause.

Whether it ^ill entertain jurisdiction in such a case, and award damages
on the ground ouly that discovery is sought and obtained — Quere.

The statute of limitations does not, in its terms, apply to Courts of Equi-
ty, but lapse of time, independent of the statute, is often a bar in Elquity.

In cases that are within the statute. Equity ordinarily follows the law, and
will hold the statute to be a bar to equitable relief, when it is a bar at
law.

But in cases of concurrent jurisdiction, as of fraud, Equity sometimes
goes beyond the law, and holds lapse of time a bar to equitable relief,
when the prescription is not fblly acquired at law.

In cases of concurrent jurisdiction, if a party sleeps on his rights until
the progress of events and change of circumstances have ptit it ou
of the power of the Court to do equal justice between the portie

MAINE, 1845. 253

Ferson v. Sanger et ol

which, as a Court of conscience, it is bound to do, it wHl remain pas-
Bive, and leave the party to his legal remedy.

Where Elquity is not bound er debiio jtutHia to act on the case, the Court
will not interpose with its extraordinary powers, unless the party comes
in such time as leaves to it the power of fairly adjusting all the material
equities involved in the case, in such a manner that, while justice is
done to one party, injustice will not be done to the other.

In such cases the Court does not act on the right, but leaves the parties
as it found them, to pursue their remedies at law.>

October Term, 1845. On the 15th of July, 1835, Baker and
Lindsey, being the owners of f of township No. 2,5th range
in Oxford county, called the Alder Stream tract, gave a bond
to the defendants to convey to them the land, at the rate of
six dollars per acre, the defendants paying $1000 on the ex-
ecution of the bond, which, if the purchase was made, was
to be in part payment for the land, and if not made, was
to be forfeited. With this contract, Sanger and Richardsog,
two of the defendants, went to Boston, and there met John
Webber, and on the 24th of July, sold and assigned their in-
terest in the bond and rights under it to Webber, for the sum
of $3000, of which $1000 were to be in part payment of the
land if Webber should elect to purchase, and $2000 a bonus
to the defendants for their right of pre-emption. At the
time of the assignment, there was exhibited to Webber and
Person, who were present at the making of the bargain, a
certificate of Charles Stackpole, one of the defendants, dat-
ed July 16, 1835, at Waterville, stating that he had explored
the township, and that there was on the, land, **at least 3000
feet of good pine timber to the acre on an average, besides a
large quantity of spruce,*' and another certificate of Eben.
T. Bacon, one of the selectmen, and Nathaniel Crommet.
Treasurer of the town of Waterville, stating that Stackpole
had "the reputation of being a good judge of timber lands."
Three other certificates were also exhibited of Berry, Deer-
ing, and Homans, dated at Boston, July 24th, the day of
the assignment of the bond, each certifying that they had

264 CIRCUIT COURT,

Ferson v. Sanger ei at.

explored the land, and that there was 10,000 or more of pine
timber, and 3000 of spruce to the acre. After the assign-
ment of the bond, Webber went to Waterville, took Stack-
pole with him, and went to view the land about the first of
August. Webber states in his deposition, that an injury
which he received when he first went on the land, prevented
him from exploring it himself. But Stackpole made further
exploration, and in another certificate, dated August 5th,
confirms the first he gave, and says that he saw additional
timber that he had not seen before. While Webber was on
this exploration, he procured certificates from a number of
other persons as to the value of the land, which were exhib-
ited to Ferson on his return. Webber states in his deposi-
tion, that he obtained these certificates through Stackpole,
who represented that the persons were acquainted with the
land, and also went with him to their houses, he, Webber,
not knowing them personally. On the 11th of Augusti
Webber notified Baker and Lindsey of his election to com-
plete the purchase and take the land. On the 24th of Au-
gust, the day on which th^ bond expired. Baker and Lind-
sey extended the time for one day to the 25th. On the 24th
of August, probably a mistake for the 25th, Baker and Lind-
sey conveyed the land to Ferson, the plaintiff, by the direc-
tion of Webber, and on the 25th, Ferson re-conveyed the
land to Baker and Lindsey in mortgage, to secure the pay-
ment of the purchase money unpaid, being $45,965^^^, and
executed a bond to pay certain notes of Baker and Lindsey.
This mortgage was afterwards assigned to Martin Gore,
June 1st, 1837. Ferson, by deed, gave quiet possession of
the land to Gore, for breach of the condition, and the condi-
tion remaining unperformed, the mortgage became foreclos-
ed, June 1st, 1840, and the title perfect in Gore. The bill
was filed May 10th, 1841. The relief prayed in the bill
was, that the defendants might **be compelled to pay to your
orator all sums of money, with interest, which he has paid,
on receiving a deed of release from your orator of his right

MAINE, 1845. 255

Feraon o. Sanger et td.

and title to said lands," and to pay and take up the notes
given by the plaintiff, with Webber, which remain unpaid.
jS. Fessenden, for the plaintiffs; C S. ^ E. H. DavdSj
for the defendants.

•

Ware, District Jvdge.

This is in substance a Bill in Equity seeking damages for
an alleged fraud and misrepresentation, in the sale and as-
signment of the right of pre-emption of certain lands in this
State. A preliminary question is presented, and was dis^
cussed at the argument, as to the admissibility of Webber as
a witness in the cause. His deposition was taken, subject to
the objection made when the interrogatories were filed.
These are, first, that he was a party to the contract and ought
to have been a party to the bill; and secondly, if not a neces-
sary party, that he has an interest in the cause.

The contract was in fact made by Webber in his own
name. He appeared not only as a principal, but as the sole
contracting party. He made the purchase, and the assign-
ment of the bond was made to him. He held himself out
as the purchaser, and was certainly considered by the de-
fendants as a principal in the contract, if not the sole pur-
chaser. And he continued to act as a principal, if not the
sole party in interest, in the purchase. He undertook a jour-
ney to explore and examine the land, and after going on the
land and satisfying himself as to its value, gave notice to
Baker and Lindsey of his election to purchase the land in
his own name, and obtained from them an extension of the
titoe allowed by the bond to complete the purchase, though,
when the transfer was made, it was by his direction made to
Person. But he joined with Person in giving the notes for
the purchase money. In his deposition he says that he
signed the notes as surety, but this does not appear by the
notes themselves. He appears therefore, from the beginning
to the end, as a principal in the contract Indeed the only
circumstapce, which could lead the defendants to a suspicion

266 CIRCUIT COURT,

Person v. Sanger 0I a/.

that Person had any interest in the contract, is the fact that
he assisted Webber in raising the money to pay the price of
t}ie bond. It is true that Person wrote the assignment, and
was present when the contract was made, but he does not
appear to have taken any active part in it, but it seems to
have been made entirely by Webber. Person put his name
to the assignment as an attesting witness. It is stated in the
bill that Webber made the contract as the agent of Person,
but the defendants were not notified of it at the time, and,
from the fact that he signed the contract as a witness, they
bad certainly a right to infer the contrary, and that, if he
was to have any interest in the contract, it was to come
through Webber. Purther, it appears to me to be a plain if
not a necessary inference, from the w^hole evidence m the
case, that Webber was not only directly interested in the pur-
chase of the bond, but also in the purchase of the land. In
his own deposition he admits that he contemplated taking
an interest in the land to the amount of one-ninth, and in
the letters which he wrote to Baker and Lindsey after the
purchase of the land, he writes precisely as he would have
done if he had an interest in it. In a letter of June 16th,
1838, signed by him and Person jointly, relative to the pay-
ment of the outstanding notes, they speak of their interest as
joint. **We are determined,^' they say, ^^ having the land to
offer as security^ to make a desperate effort,'^ &c. The nat-
ural if not the necessary interpretation of such language is
that the land was owned by them jointly. In all Person's
letters he speaks, in the plural number, of others being inter-
ested with him, th6ugh he names no individual. Baker, In
his deposition, says that he understood that others were in-
terested, to the number of seven in all, including Person and
Webber. In truth, Person's letters distinctly show the fact
that the land was bought on speculation, not with an
intention of holding it, but to sell again at an advanced
price. In his letter of May 9th, 1837, he says, "we did not
intend to keep it, but bought with the design of selling it;"

MAINE, 1845. 257

Feraon v, Sanger U al.

and again, " we have used every exertion to sell, from the
moment of the lands being purchased," and, May 24th, re-
ferring to the letter of the 9th, he says, *4t was adopted by
a dehberate consultation of my associates." Now it seems
to me impossible to doubt, on the evidence in this record, that
Webber was one of these associates, and that he was inter-
ested as a principal party in the contract with the defend-
ants, in the purchase of the bond, as well as in the subse-
quent purchase of the land. - The bond was assigned to
Webber, but the legal title in the land was conveyed to Per-
son, but in both cases, in trust for other parties who were
jointly interested in the speculation.

If so, then undoubtedly Webber is a proper if not a ne-
cessary party to the bill. It is not necessary in this case to
inquire whether the bill is demurrable for the omission, but
certainly one of the joint contractors cannot, by the omission
of his name as a party plaintiff in the bill, be rendered com-
petent as a witness, for he would be a witness in his own
cause. On this ground I think Webber inadmissable as a
witness.

Again, the deposition of Webber is objected to on the
ground of interest A part of the prayer of the bill is, that
the defendants may be compelled to pay and deliver to the
plaintiff the unpaid notes, given by Person and Webber to
Baker and Lindsey to secure the payment of the price of
the land. These notes are in the possession of Martin Gore,
and, in an instrument executed by him, he covenants not to
sue Webber on the notes ; and there is another by Person,
which may be construed perhaps to release him from his
eventual liability on the notes, should they be paid by Per-
son. But these notes have been endorsed, and Gore does not
release the endorsers. If he calls on them and they pay the
notes, they will have their remedy over against Webber.
The covenants of Gore do not, therefore, release him from
his ultimate liability on the notes, and of course he has a
direct interest in having them delivered up and cancelled.

258 CIRCUIT COURT,

Ferson v. Sanger ei al.

On this ground also, my opinion is that the deposition of
Webber is inadmissible.

Without th^ testimony of Webber, it is quite clear that
this bill cannot be maintained, for he is the only witness to
prove the fraud. But waiving this question, and consider-
ing the testimony of Webber as in the ca^se and entitled to
full credit, how will the case then stand ? Suppose the con-
tract to have .been made, as charged in the bill, with Person,
through Webber as his agent, it was a contract for the right
and interest which the defendants had in the bond, and that
only. The bond of Baker and Lindsey conveyed no inter-
est in the land, not even in Equity. It merely gave a right
of pre-emption, and that to be exercised within thirty days
from its date. It gave a mere right of actiorf, by complying
with the terms of the condition, of compelling the party, by
a Bill in Equity, to a specific performance of the contract, or
a right to damages at law for the non-performance. All that
the assignment transferred was a right to perform the condi-
tion, and thus acquire a title to tlie land, or a claim for dama-
ges.

But the time limited for performing the condition is expir-
ed. This is not therefore a case in which the Court can re-
scind the contract, and re-place the parties in the condition
in which they were before the contract was made. If the
contract is rescinded, the right of pre-emption, which was
the object of the contract, is gone. The thing sold is ex-
tinct, and has ceased to exist. All the relief, which the
Court can give, is damages for the alleged fraud, and this is
substantially the prayer of the bill.

This suit must, therefore, be considered as properly a bill
to recover damages for a fraud in the sale and assignment of
the contract. It cannot be for a fraud in the sale of the land,
because the defendants never had any interest in the land
which they could sell. The right to purchase the land was
what was bought of the defendants, and the land itself was
afterwards purchased of Baker and Lindsey. For this fraud,

MAINE, 1845. 259

Fenon v. Sanger ei al.

if there was one, there is a perfect remedy at law. Will a
Bill in Equity lie for damages only, arising out of fraud in a
contract where no other relief can be given ?

It is undoubtedly true, that Equity has a general jurisdic-
tion over matters of fraud. Fraud, accident, and trust con-
stitute the ancient and broad foundation of its powers. Com,
Dig. Chancery C, 2. 1 Black, Com, 92. 3t6. 431. 1 Story's
Equity^ 59. Lord Hardwicke, in the case of Chesterfield v.
Janseti^ 2 Vesey^ sen, 155, said that Equity had an undoubt-
ed jurisdiction to relieve in all cases of fraud, affirming the
jurisdiction without* any limitation. There is however at
least one admitted exception to the universality of this prop-
osition; it is, that Equity has not jurisdiction to relieve
against fraud in obtaining a will, and in Cooper's Equity^ p.
125, this is said to be the only case in which relief against
fraud cannot be had in Equity. The jurisdiction is af-
firmed in terms nearly as strong in 1 Story's Equity ^ 184.
With the exception that has been mentioned, it is stated that
Courts of Equity may be said to possess a general, and per-
haps a universal concurrent jurisdiction with Courts of law
in cases of fraud cognizable at law. Lord Eldon, in the case
of Evans vs. Bicknell, 6 Ves, 190, appears to have affirmed
the jurisdiction of the Court in terms quite as large and un-
qualified. That was a suit in Equity for damages, a person-
al demand against the defendant; and he held that, provid-
ed an action might be maintained at law, relief could be had
in Equity. He remarked that it is an old head of Equity,
that if a party makes a representation to another person go-
ing to deal in a matter of interest on the faith of that repre-
sentation, if the party who makes the representation knows
it to be false, he shall make it good; and the rule equally
holds, as it seems, that if he does not know whether it be
true or false, if he affirms it to be true, he shall be responsi-
ble for its truth. 1 Story's Equity ^ § 193. And the doctrine
of Lord Eldon, in this case, appears to have been fully con-
curred in by Chancellor Kent. Bacon vs. Bronson^ 7 Johns.
Ch. 201.

260 CIRCUIT COURT,

Feraon v. Sanger tt «/.

These are certainly very grave authorities, and they as-
sert the jurisdiction in terms exceedingly broad and compre-
hensive. And yet, notwithstanding this array of imposing
authority, it seems that practically the jurisdiction is not
maintained to the whole extent that is apparently claimed by
them. The right to relief in equity, for fraud in the sale of
personal chattels, seems to be distinctly denied by Chief
Baron Alexander, in the case of Newham vs. A/ay, 13 Price
R, 752. " It is not," says he, " in every case of fraud that
relief is to be administered in equity. In the case, for in-
stance, of a fraudulent warranty on the sale of a horse, or
any fraud in the sale of a chattel, no one, I apprehend, ever
thought of filing a Bill in Equity." And the general tenns,
in which the jurisdiction is claimed in the passage in Story's
Elquity before cited, it seems, must be received with consid-
erable qualification in practice; for in a note to that section,
it is said that Courts of Equity will not ordinarilj/ give re-
lief in cases of warranties, misrepresentations, and frauds in
the sale of personal property. And in the second volume, in
the chapter on compensation and damage, ^ 794 — 6, the ju-
risdiction of the Court is stated in terms much more limited
It is there laid down as a general proposition, that Courts of
Equity will not entertain jurisdiction over breaches of con-
tract and other wrongs and injuries, that are cognizable at
law, to give compensation or damages where these are the
sole objects of the bill, but only as incidental to other relief,
which is sought by the bill and may be granted by the
Court. For whenever the bill goes merely for damages, the
remedy is perfect at law, and it is more proper that the dam-
ages should be ascertained by the jury than by the con-
science of the judge. And it appears to me that Lord El-
don, in the case of Todd vs. tree, 17 Ves, 27S — 9, had mate-
rially modified the opinion expressed in the case of Evans
vs. Bicknell, The bill, in that case, prayed the specific per-
formance of a contract, and if the defendant was unable to
perform it, which was the fact, then for com]>ensation or

MAINE, 1845. 261

Ferson v. Sanger H al.

damages for the non-performance. Lord Eldon said, that
the Court ought not, in a bill for specific performance, ex-
cept under very special circumstances, to direct an issue or a
reference to a master to ascertain the damages. That, he
emphatically added, is purely law, and had no resemblance
to compensation given out of the purchase money, where a
party is unable completely to fulfil his contract. 2 Story^s
JEquity, $ 796. Though in the former case he seems strong-
ly to hold that, in fraud, a bill may be maintained whenever
an action will lie at law. This doctrine of Lord Eldon, is
deliberately affirmed by Chancellor Kent, in KempshcUl vs.
Stone^ 6 Johns, Ch, 195, and is sanctioned in many other
cases. Clinan vs. Cooke, 1 Sch. & Lefr. 22. Oreenaway vs.
Adams, 12 Ves. 401. Russell vs. Clarke, 7 Craneh, 87. It
is very pointedly asserted by the Court of Kentucky, in
Hardwicke vs. Forbes, 1 Bibb R, 212, (quoted 1 Story^s Equi-
ty, $ 184, note.) On a review of all the cases, the rule
practically established seems to be, that a Court of Equity
will not take jurisdiction of a suit for damages, when that
is the sole object of the bill, and when no other relief can be
given. The reason is, that in such a case the remedy is as
complete and perfect at law as it is in Equity. The same
evidence will support the claim in both Courts, and the as-
sessing of damages is a subject more proper for the jury than
for the Court But when other relief is sought by the bill,
which a Court of Ekjuity is alone competent to grant, and
damages are claimed as incidental to relief which cannot be
obtained at law, then the Court, being properly in posses-
sion of the cause for the purpose of relief purely equitable,
will, to prevent multiplicity of suits, proceed to determine
the whole cause.

Whether, in a case of damages for fraud, v/here a dis-
covery is sought and obtained, the Court will proceed to
ascertain the damages on that ground alone, by directing
an issue to the jury, or a reference to a master, has not

262 CIRCUIT COURT,

Ferson v. Sanger et al.

perhaps been distinctly settled. The general doctrine,
which is said to be pretty well established in this country, is
that where the Court has jurisdiction for discovery, and it is
obtained, it will proceed to give relief, although the remedy
at law is complete. 1 Story^s Equity^ ^ 71. It would seem
to follow, that in such a case, where the Court has an un-
doubted jurisdiction to compel a discovery, after it was ob-
tained, that the Court would, hi its own way, proceed to as-
certain the damages and give the relief This seems to be a
regular and necessary inference from the general doctrine.
And yet it is said by a great master of Equity jurisprudence
that there is strong reason for declining the jurisdiction, as
damages ought to be ascertained by a jury, and such cases
belong appropriately to Courts of law. 1 Story^s Equity^ $
72. But however this may be, it is clear that jurisdiction
does not attach when the discovery is not obtained. In this
case, the fraud is distinctly and unequivocally denied. It
cannot be pretended that the bill can be maintained on any
disclosure made in the answer.

But, if the jurisdiction was as indisputable as it appears
to me to be questionable, my opinion is, that in this case
equitable relief is barred by lapse of time. It is true that
proceedings in Equity are not strictly within the statute of
limitations, because the words of the statute apply to par-
ticular legal remedies by name, and do not therefore in-
clude proceedings in Equity. But Courts of Equity have al-
ways held themselves bound by the spirit of the statute, and
therefore, where there is a legal title and right and it is bar-
red at law by the statute. Equity, acting in obedience to
the statute, will hold it barred in Equity. In the present
case, the legal bar had not been fully acquired, as six years
had not elapsed when the suit commenced, and it may be
said, as the remedy was not barred at law, it ought to be held
as not barred in Ekjuity. But this, it seems to me, would be
taking an imperfect view of the effect of time on equitable

MAINE, 1845. 263

Person v. Sanger et al.

remedies. Lapse of time, in Equity, operates not only as a
positive bar, extinguishing the civil title or right while it
leaves the natural right to have all that effect which the law
allows it, (and this is the case where the Court acts in obe-
dience to the statute,) but it also has an operation in cases not
within the statute, so that there has always been a limita-
tion of suits in Equity of every description. It is a rule
adopted by the Court, in the public interest and for the peace
of society, to discourage the litigation of stale and antiqua-
ted demands. On this principle the Court refuses to inter-
pose its extraordinary authority, unless the party prosecutes
his right with reasonable diligence. If he sleeps on his
rights for an unreasonable length of time, the Court will
withhold its hand and leave him to his legal remedy. What
delay will amount to what is technically called laches, nec-
essarily depends on the nature and circumstances of the
case. And this principle is applied, as I understand the
practical doctrine of Elquity, not only to cases not compre-
hended within the statute in any sense, that is, to rights
which are purely equitable, and for which the forms of law
ajBTord no remedy, but rights and titles which are within the
statute, and over which the Court has a concurrent jurisdic-
tion with Courts of law. In these cases it not only acts in
obedience to the statute denying the remedy, when the stat-
ute bar is complete, but will sometimes, on its own peculiar
notion of justice, decline to interpose when the prescription
is not fully acquired at law. In these cases the Court* does
not pretend to act on the right, but is simply passive, and
leaves the party to pursue his legal. remedy. If he sleeps on
bis rights, until the course of events and the change of cir-
cumstances have put it out of the power of the Court to ad-
minister that equality of justice between the parties, which,
as a Court of conscience, it is bound to do, it will decline to
act at all. In cases of concurrent jurisdiction, where a par-
ty is at liberty to apply either to the tribunals of law or
Equity, a Court of law is bound by the letter of the statute.

264 CIRCUIT COURT,

Person v. Sanger et al.

■^— ^—^^^^^^— ' ' I^I^M^^^^—i ^^^■^-^ -■!■ ■ — ■■ ■ ■■■■III I ■■ —■ ^— — ^^^^^^»^^^»^^^^

because the statute speaks to that Court in direct and posi-
tive terms. If the prescription is full, no remedy can be giv-
en, but if it wants a single day of being complete, it does
not exist at all, and the Court ex debito justUuB is bound to
give the remedy. To refuse to, would be a denial of justice.
But it is not so in Equity. The statute does not address it-
self to Courts of Equity, and therefore Equity, in strictness,
is not bound by it. But then Equity is not bound to inter-
pose at all. It is no denial of justice to leave the party to
such remedy as the law .will give. Equity therefore says
to the suitor, that while the statute bar may not be impera-
tive, yet that in Equity there is a prescription independent of
the statute, not fixed to any invariable time, but depending
on the nature and circumstances of the case, which may be
a bar to equitable, when it would not be to legal, relief. In
these cases of concurrent jurisdiction, Equity will not interpose
with her extraordinary powers unless the matter is brought
before the Court in such time as will leave to it the power
of adjusting all the material equities involved in the case,
in such a manner that, while justice is done to one party, in-
justice will not be done to another. If this cannot be done,
and this is the consequence of the delay. Equity will not act
on the right, but leave it for the decision of law.

If this be a correct view of the practice of Equity in cases
of concurrent jurisdiction, as to the influence of lapseof time
on equitable remedies, it will apply with great force to the
facts of the present case. This was a sale of a right of pre-
emption of certain lands, that is of a chose in action. The
gravamen of the bill, when reduced to its last analysis, is
that the plaintiff was induced, by the fraudulent misrepre-
sentation of the defendants, to pay for their right an exorb-
itant price. But after the purchase of the bond, the plaintiff
went on the land, by his agent, for the purpose of satisfying
himself by actual examination by a person who was well
acquainted with timber lands, and, after such examination,
deliberately made the purchase of the land. It cannot be

MAINE, 1845. 265

Feraon v. Sanger el ol.

pretended that the purchase of the land was made principal-
ly, if it was at all, on the strength of the representations and
certificates of the defendants. The plaintiff chose to trust
his own eyes, or those of his confidential agent and, in fact,
co-purchaser of the bond, and it was on the strength of his
representations and the additional certificates he obtained,
that the bargain for the land was ultimately closed. It is
quite clear that the plaintiff, by this bill, can claim no relies
directly for damages he may have sustained by the purchase
of the lafid. All he can pretend to is, that he was induced
by the fraud of the defendant to pay too much for the bond,
and that, if the defendant made false representations, he is
bound to make them good. My opinion is, that he is too
late in claiming relief for this damage in a Court of Equity.
He should have made his claim before the right of pre-emp-
tion expired, or, if not, at least while he had a title to the
land, and the power of restoring to the defendants what he
received of them, that is, the right to take the land at the
bond price. Instead of that, he has held the land for nearly
six years, has made constant efforts to re-sell, demanding a
higher price than he gave, has gone on to operate on the
land and taken off a large quantity of the timber, has mort-
gaged it, and finally allowed the mortgagees to foreclose and
extinguish his title. Under these circumstances, my opinion
is, that even admitting the fraud, (and with respect to San-
ger, the only defendant who has answered, Richardson being
dead and Stackpole having demurred, the evidence entirely
fails, as it appears to me, in making actual fraud,) but even
admitting it, my opinion is, that the plaintiff is barred of
equitable relief by his own laches.

The result of my opinion is, that the bill must be dismiss-
ed with costs for the defendant.

?66 DISTRICT COUJIT,

Smith V' Treat

WILLIAM SMITH, Libellant,

VERSUS

HIRAM TREAT.

The arrest and imprisonment of a seaman in a foreign port, and send*
ing him home by the public authority as a prisoner charj^d with an
indictable ofience, does not necessarily constitute a bar to a claim for
wages for the voyage. Such proceedings do not preclude the Court
from inquiring into the merits of the case, and making such a decree
as the justice of the case requires.

The master is not ordinarily justified in dissolving the contract with a sea-
man, and discharging him for a single fiiult, unless it in of a high and
aggravated character.

The causes for which a seaman may be discharged are ordinarily such
as amount to a disqualification, and show him to be an unsafe or an
unfit man to have on board the vessel

November 4, 18i5. This was a libel for wages. The libel-
lant shipped as a seaman, April 25, 1845, on board the brig
Benjamin, at Frankfort, for a voyage to some port in the West
Indies and back, for wages at the rate of $15 per month.
The brig returned August 17th, and the libellant claimed
wages for the whole time ; the balance due being $42 50, one
month's wages having been advanced to him at the time of
shipping.

The facts are stated in the opinion of the Court.

L. D^M. Sweat, for the libellant; A, Haines, for the re-
spondent

Ware, District Judge.

The libellant in this case went and returned in the brig,
and it is not denied that full wages are due to the termina-
tion of the voyage, unless they were lost or forfeited by what
took place at Point Petre, the port of discharge. The affair
which is relied on as a forfeiture, or more properly as a bar to

MAINE, 1845. 267

Smith V. Treat.

the claim for wages, took place on the 21st of May, while
the crew were dischaging the cargo. The captain being at
that time on shore, the men, under the orders of the mate,
were making up a raft of kunber to be floated ashore, when
a difficulty arose between Tappan, the mate, and Hadley,
one of the crew. While the mate was below making up his
account of lumber discharged, he heard a noise on deck, and
came up to put a stop to it. He found it was made by Had-
ley, who was on deck passing off lumber to make up the
raft, Smith, the libellant, being at work with him. He or-
dered Hadley to stop his noise, or go below. Hadley, who
had been drinking pretty freely but not so as to render him
incapable of work, replied that he would not go below for
him, nor for any other man. Tappan rejoined that if he
continued his noise he would put him below ; and Hadley,
again replied, that neither he nor any one else could put him
below. Tappan then called to the second mate, who was
on the raft, to come on deck and assist in putting Hadley
below, whose noise had then attracted the attention of persons
near the vessel. Smith, who was at work with Hadley, and
to whom nothing had been said, then interposed and said to
the mate, " If you put one below, you must put all hands
below.*' ITie difficulty, however, subsided without any act
of violence, and the men returned to their work, and contin-
ued quiet for an hour, or an hour and a half, when Hadley
again became noisy. It is not easy, from the varying ac-
counts of the witnesses, to determine the precise facts which
took place after this time, or the exact order in which those
occurred, in which the accoimts of all the witnesses agree.
The noise appears to have commenced between Hadley and
Smith, who were at work together ; Tappan, the mate, in-
terposed to stop it, and an affray took place. Tappan knock-
ed down Hbdley with his fist; Smith interposed and gave a
blow to Tappan and they clenched. While they were clench-
ed, Hadley got up, and some of the witnesses say that he
stood by smd looked on, without taking a part. But Harri-

268 DISTRICT COURT,

Smith 9. Treat.

man, the second mate, who at this time came on deck, says
that both Smith and Hadley were upon the mate, and had
got him down on a barrel ; that as he was going to his relief
Hadley left Tappan and came towards him ; that he a7oided
and passed him, and that he, Hadley, followed him as much
as twenty-five feet towards the pump; that he then took a
pump-brake, and that Hadley then struck him with his fist,
add he then gave him a blow on his head with the pump-
brake, which brought him partly down, and then another,
that brought him to the deck ; that he then went to Tappan
whom Smith had down and was beating. He told Smith to
let Tappan alone, but he refused and told Harriman not to
strike him. Harriman then gave him three blows with the
pump-brake, before he brought him down, and then turned
to Hadley, who had got up and fallen over the deck into the
water. He then went on to the raft and got Hadley out of
the water, and when he came on deck Tappan and Smith
were again clenched. At this moment the captain came on
board and put an end to the affray. The blows given to
Hadley proved mortal, and he died the following night
Smith was arrested that night and confined in prison, and
sent home in irons by order of the American Consul. He
was indicted, at the adjourned term of the Circuit Court, on
a charge of stirring up the crew to resist the officers of the
vessel, and was acquitted of the charge by the jury.

Such are the most most material facts, as nearly as I can
recollect them from the testimony, which though not in all
respects quite contradictory, is not, in all its parts, exactly
reconcilable. One month's wages, covering the whole peri-
od of his service previous to his arrest and imprisonment,
had been paid in advance, and the libellant now claims wa-
ges to the termination of the voyage. For the respondent, it
is contended that the misconduct of Smith, followed by his
arrest and imprisonment, and his being sent home by the
public authority in chains, as a criminal, is a conclusive bar
to any claim for wages beyond what have been paid.

MAINE, 1845. 269

Smith 9. Treat.

This Court, I hold, is not excluded by any of the proceed-
ings at Point Petre, from inquiring into the merits of the case,
and making such a decree as, on the whole, right and justice
may require. The libellant was tried and acquitted on the
charge, and even if he had been convicted, this would not
have been a bar to the present suit. 4 Mason^s Rep. 84,
7%6 Mentor. His claim stands entirely unprejudiced by any
of the proceedings at Point Petre, and his misconduct, admit-
ting it in all the aggravation that is alleged, cannot operate
properly as a forfeiture of the wages now claimed. The
wages forfeited under the marine law are properly the wages
previously earned, and not those which are or may be earn-
ed subsequently. Both justice and policy require this limi-
tation of the forfeiture. If it extended to future earnings
for the remainder of the voyage, it would take from the sea-
men all the ordinary and most influential motives for good
conduct. He would never willingly and cheerfully perform
his duties, if he knew beforehand that, however diligent and
faithful he might be, he could receive no compensation for
his services.

But a seamen may, by misconduct, not only forfeit all
wages antecedently earned, but his misconduct may be such
as will authorize the master to dissolve the contract, and dis-
cbarge him from the vessel. The principa> question present-
ed in this case is, whether the conduct of the seaman was
such as T^ould, by the principles of the maritime law, author-
ize the master to discharge him from the vessel. By the old
sea laws, which are the records of the early customs and
usages of the sea, the master is authorized to discharge a
seaman for drunkenness, for quarrelling and fighting with
the other men, for theft, for going on shore without leave, and
for disobedience. Jugemens Z>' Oleran, Art. 6, 13 ; Consulai
de la Mer, ch. 125. Laws of Wisbuy 18, edit, of Cleircu;.
IdKWB of the Hanse Towns, 29, 45.

Some of these laws are curiously minute and particular
on this as well as on other subjects. The Consulate of the

270 DISTRICT COURT,

Smith V. Trest.

Sea authorizes the master to dismiss a seaman for three caus-
es; for theft, quarrelling, and disobedience to the orders of
the master, and subjoins by way of amendment, perjury as a
fourth cause, but adds, that he shall not be discharged for
the first, but only for the fifth offence. Generally speaking,
the causes which justify the master in discharging a seaman
before the termination of the voyage, a§d especially in a for-
eign port, are such as amount to a disqualification, and shew
him to be unfit for the service he has engaged for, or unfit to
be trusted in the vessel. They are — mutinous and rebellious
conduct, persevered in, gross dishonesty, or embezzlement, or
theft, or habitual dnmkenness, or where the seaman is habit-
ually a stirrer up of quarrels, to the destruction of the order
of the vessel and the discipline of the crew. 1 Petenf
Adm. Rep. 168, 175. 2 Peters, 268. Be^s Rep. 148, 184-
4 Mason^s Rep. 541, Orne vs. Townsend. 2 HagganPs
Rep. 5, The Lady Campbell Id. 228, The VibUia.

Ordinarily, the law will not justify the master in dismiss-
ing a seaman for a single offence, unless it be of a very high
and aggravated character, implying a deep degree of moral
turpitude, or a dangerous and ungovernable temper or dispo-
sition. It looks on occasional offences and outbreaks of pas-
sion, not so frequent as to become habits, with indulgence,
and by maritime Courts it is administered with lenity and a
due regard to the character and habits of the subjects to
whom it applies. They are a race of men proverbially en-
terprising and brave, exposed by the nature of their employ-
ment to great personal dangers and hardships, contending
with the elements in their most violent and tempestuous agi-
tations, and encountering these dangers and hardships with
the most persevering courage. But with all this, they are of
a temperament hasty and choleric, quick to take offence, and
ready, on the excitement of the moment, to avenge any sup-
posed wrong or indignity. The law looks on the fairer traits
of their character with kindness, and as making some com-

MAINE, 1845. 271

Smith «. Treat.

pensatioQ for defects and faults, which are perhaps not un-
naturally, or at least are very frequently, associated with
those qualities which render them so valuable to their coun-
try in peace as well as in war. And when these show them-
selves occasionally and are not habitual, it will not visit them
with severity, but imposes its penalties with a sparing hand.
From considerations of this kind, the Court will seldom pun-
ish a single offence with a forfeiture of all the wages ante-
cedently earned, much less will it be held as a justification
of a discharge of a seaman from the vessel.

But still there are causes which will justify the master in
dismissing a seaman and putting an end to the contract.
Was this such a case? The conduct of the libellarit, up to
the time when this affray took place, had been, if not entire-
ly unexceptionable, such as had not exposed him to any spe-
cial censura But on this occasion, though, in the judgment
of a jury, the part which he took did not amount to the of-
fence charged in the indictment, it was highly censurable
and approximating to mutiny. Hadley, under the excite-
ment of liquor, had been turbulent and noisy, so much so as
to attract the attention of persons in the vicinity of the ves-
sel. Both the mates, the master being on shore, had before
by gentle means attempted, and for the time succeeded in
quieting him. Tappan told him if he continued his noise
he should put him below. This was certainly no harsh
punishment, but a very proper act of discipline unless quiet
and order were restored. The answer of Hadley was inso-
lent, but no notice was taken of that, nor was there any at-»
tempt, by the mate, to put the threat into execution. It is
apparent that he was satisfied with putting a stop to the
noise. But Smith immediately interposed, and in a tone of
defiance told the mate if he put one man below, he must put
all below. Such language and conduct, under the circum-
stances of the case, if not amoimting to the technical of-
fence of stirring up the crew to resist the orders of the ofli-
ccrs, was clearly of a mutinous tendency, and subversive of

272 ' DISTRICT COORT,

Smith V. Treat.

the discipline of the ship's company. Hadley became quiet
and the difficulty subsided. But he soou again resumed his
noise, and the disorder at this time arose from a difficulty be-
tween him and Smith. The mate again interposed to stop
the noise. It is not easy, from the imperfect and some-
what conflicting accounts given by the witnesses, to deter-
mine how the quarrel now commenced. What is certain is
that Smith interposed on the part of Hadley, a scuffle ensu-
ed, and blows were given on both sides. Smith and Hadley
both being against the mate, they got him down and held
him down until he was partially relieved by the second
mate's coming to his aid. Even after Hadley was disabled
by the blow, which unfortunately put an end to his life,
Smith fiercely continued his assault on Tappan, the mate,
nor did he relinquish his grasp, though Harriman repeatedly
struck him with a heavy pump brake, but persevered until
the master came on board and put an end to the fight It is
in proof, that Tappan was severely beaten and bruised by
Smith, or by Smith and Hadley together. Through the
whole of the affair, until it came to blows, the conduct of the
officers was moderate and forbearing. There was nothing
particularly irritating, and certainly nothing that excused
the intemperate violence and mutinous conduct of Smith.
From the beginning to the end he was a vohmteer in the
quarrel, and it is difficult to account for the part he acted
but by supposing it to flow from a radically quarrelsome dis-
position. It was commenced without cause and continued
with a persevering malignity not often witnessed; and in
fact the melancholy tragedy in which the affair ended may
be distinctly traced to the insubordination and violence of
Smith as its first cause.

Whether, but for the tragic end of this affair, the master
would have thought it necessary, or would have been justi-
fied in discharging the libellant and putting an end to the
contract, is a question on which perhaps one might pause.
Smith had, on no other occasion, exhibited a temper of dan-

MAINE, 1845. 273

Smith V. Treat.

gerous insubordination, and it might have been safe for the
master to have retained him on board, and to have left this
matter to be settled at the termination of the voyage. As it
was, certainly it was the duty of the master to call on the
civil authority of the place, and put the affair in a train of
judicial examination. The result of that inquiry was, that
Smith was sent home as a prisoner to answer for his conduct
to the laws of his country. And, from the facts developed
on the trial here, it appears to me that the civil authorities
were perfectly justified in this course. The consequence
was that the libellant was disabled from performing the ser-
vice for which he was engaged, and from the whole facts in
proof in the case, he may justly be considered as having dis-
abled himself by his own voluntary act. On the principles
of natural justice and universal law, he cannot claim a com-
pensation for services which he has by his own fault disa-
bled himself from performing. The libel must therefore be
dismissed.

As a part of the history of this transaction, it may be ad-
ded that Harriman, the second mate, was indicted, in the
Circuit Court, for an assault with a dangerous weapon,
which resulted in the death of Hadley. Under the statutes
of the United States, manslaughter would not lie, since the
death occurred on shore, whither Hadley was removed after
the fatal blow, and without the jurisdiction of the United
States. On a verdict of guilty, the Circuit Court, in consid-
eration of the circumstances of the case, sentenced Harriman
to a brief imprisonment — the penalty for the offence laid be-
ing in fact, under the statute, the same as that for man-
slaughter.

274 DISTRlCt COURT,

United Statei «. Jarrif .

THE UNITED STATES versus LEONARD JARVIS.

Under the act of GongraM of Mafch 2, 1839, ch. 89, Met 3, no officer of
the United States, whose salary or emoluments are fixed by law and
regulation, is entitled to any extra allowance or comiiensation in any
form for disbursements of public money, or other service, unless the
same is authorized by law.

In the construction of temporary statutes, as annual appropriation acti^
the presumption is that any special provinons of a general charaGter,
contained in such acts, are intended to be restricted in their operation
to the subject matter of the act, and they are not to be construed to be
permanent regulations, unless the intention of making them so is dear,
ly expressed.

The p6wer of an agent may be revoked at any time • by the piiocipal-
without notice, but if the agent, in the prosecutien of the business of
his principal, has fairly and in good faith, before notice of the revoca-
tion of his powers, entered into any engo^ments or come under any
liabilities, the principal will be bound to indemnify him.

So an agent, after accepting an agency, cannot renounce it at pleasure,
without notice or good cause, but on the condition of rendering him-
self responsible for any loss which may thereby be sustained by the
principal.

No one can change his will to the injury of another where mutual rights
and obligations exist between the parties.

These principles, having their foundation in natural equity, apply as well
between the government and an individual as when both parties are
private persons.

The defendant was appointed Navy Agent for four years, but removable
at any time within the four years at the pleasure of the President He
was removed six months before the term expired, and without previous
notice. Before his removal he had hired an office on a parol lease, the
quarter terminating three days afler his removal. Not having given
notice of his intention to quit he became, by the local law, bound for
one quarter's rent He had also hired a clerk for the year terminating
with the close of his term. On dismissing his clerk he paid him $200,
or one quarter's salary after his discharge.

It was held, that these engagements having been fairly and properly made

MAINE, 1846. 276

United Statef v. Jarvif .

in executiDg the business of bis agency, the United States were bound
to indemnify their agent, and that these charges were an equitable set-
off under the act of March 3, 1797.

February Term, 1846. This was an action of debt on
the otficial bond of the defendant as Navy Agent for Boston
and Charlestown, for a balance alleged to be dne from
him on the final settlement of his accounts. The defend-
ant was appointed Navy Agent in April, 1838, to hold
the office during the pleasure of the President, for a
time not exceeding four years. The compensation allowed
for his services was one per cent, on the amount of his
disbursements, but not to exceed in the whole $2,000 a
year. He was removed from office, September 27, 1841, six
months and three days before the term of four years expired,
and the first notice he had of his removal, or of an intention
to remove him before the expiration of the term, was by the
appointment of a successor. On the final settlement of his
accounts by the accounting officers, there was found to be a
balance due the United States of $715 97. The defendant
claimed to be allowed $452 18, as commissions of one per
cent, on $45,218 59 paid to the heirs of John Harris, for cer-
tain lands purchased by the Secretary of the Navy for the
Navy Yard, as being an extra service, not coming within the
regular duties of the Navy Agent, and for which he claimed
to be entitled to a separate and additional compensation.
And he also claimed $26 29, being the amount of several
small items for office rent and charges for the remainder of
the quarter ending October 1, and also one quarter's office
rent from October 1 to December 31, 1841, after his removal
from office. The defendant hired his office by a parol lease,
and, not having given seasonable notice, of his intention to
surrender it before the expiration of the quarter ending in
October, by the local law of Massachusetts he became liable
for an additional quarter's rent,which was paid by him, and the
receipt is in the case. He also claimed $200 forone quarter ad-

276 DISTRICT COURT,

United States 'v. Janrit.

ditional clerk hire. His clerk was hired for a year terminating
with April 1st, 1842, when the defendant's appointment would
expire by its limitation. The clerk, being hired for the year,
claimed his salary under the contract, but compromised for
one quarter's salary instead of the whole balance, which was
half a year. The amount charged for office rent, and clerk
hire was the same as had been allowed from quarter to quar-
ter in his previous settlements.

The facts in the case were not controverted, but the ques-
tions of law were elaborately argued by

HaineSj District Attorney, for the plaintiffs ;

Preble, for the defendant.

Ware, District Judge, charged the jury subtantially as
follows :

The most considerable item claimed by the defendant iu
off-set is $452 18 charged as commissions on the disburse-
ment of $45,218 59, paid to the heirs of John Harris, for
lands purchased for the Navy Yard in Charlestown. The
owner of the land not having left children, the money was
to be paid to his collateral heirs, and, as the Secretary could
not himself conveniently ascertain who they were, he em-
ployed the defendant to do the business. In his letter to him
he says: "The money is sent to you that no mistake may
occur as to paying it to the party entitled to receive it; — and
to guard against. any such mistake you are requested to con-
sult the United States District Attorney, Mr. Mills, and to
pay over the amount and to take the proper receipts and ac-
quittances for the same under his advice and direction." It
is apparent that the service to be performed was one not only
of considerable responsibility but of some delicacy, for if the
defendant had paid the money to a wrong person he might
have rendered himself responsible, and if he is entitled to any
compensation it is not contended that the sum charged is too

MAINE, 1846. 27T

United Sutei v. Jarvif .

much. But it is argued, by the District Attorney, that he is
not entitled to any, but that he was bound to perform this
service for the compensation which he received as Navy-
Agent. That salary was estab}tshed as a compensation for
performing the ordinary service attached to the agency. Now
this does not appear to fall within the range of his ordinary
duties as Navy Agent, and it appears to me to be so treated
by the Secretary in his letter. It was an extra service, and
attended with additional responsibility. But then it is argu-
ed by the attorney that, admitting this, he is barred from re-
ceiving any additional compensation by the third section of
the act of Congress of March 2, 1839. That section, so far
as it applies to this case, is in these words : ''No officer in
any branch of the public service, or any other person whose
salary and emoluments are fixed by law and regulation, shall
receive any extra allowance or compensation in any form
whatever for the disbursements of public money, or the per-
formance of any other extra service, unless the said extra
allowance or compensation be authorized by law." The de-
fendant was an officer whose pay and emoluments were fix-
ed. It must then be admitted that the case comes withint he
words of the law, and must be governed by it, if the law is ap-
plicable to the case. But this is the very point which the
defendant's counsel deny.

The act, in which this section is found, is one of the annual
appropriation acts. Its title is, ''An Act making appropria-
tions for the civil and diplomatic expenses of the government
for the year eighteen hundred and thirty-nine." The first
section contains more than two hundred clauses, making as
many distinct appropriations for the various branches of the
public service, and enabracing all the civil and diplomatic
expenses for the current year. The second section contains
a special provision to which I shall presently refer, and the
third has the clause which has been read, and which it is
contended governs this case.

278 DISTRICT COURT,

United Sutef v. Janrit.

The argument of the defendant is, that this section is in-
tended to apply to the subject matter of the act only, and
is to be confined to the disbursements of the appropriations
contained in the act This is, perhaps, the construction that
would at first most naturally suggest itself. The act itself
is one of those annual acts which spend their power in the
course of the year, to which we are not acci^stomed to look
for permanent regulations. If the legislature annex to such
an act any special provision which has a proper application
to the subject matter of the act, and use no words indica-
ting an intention to give it a more extensive operation, the
just conclusion would seem to be, that the special regula*
tion was intended to be confined to the matters embraced by
the act. It is remarked by Mr. Justice Story in delivering
the opinion of the Court, in Mhiis vs. The United States,
15 PeterSy 445, that '' it would be somewhat unusual to find
engrafted, on an act making special and temporary appropria-
tions, any provision which was to have a general and perma-
nent application to all future appropriations. Nor ought such
an intention on the part of the legislature to be presumed^
unless it is expressed in the most clear and positive terms,
and when the language admits of no other reasonable inter-
pretation."

This is emphatic language, and places this, as a rule of
interpretation, on strong ground. The second section of this
act also contains a special regulation applying to collectors
of the customs, which is clearly intended to be permanent
It requires them to place money received on unascertained
duties, or duties paid under protest, at once to the credit of
the treasurer. The first words of the section are : '' From
and after the passage of this act all moneys paid to any col-
lector," &c., words the meaning of which cannot be mista-
ken. But there are no words of the like import in the third
section, and the omission of them undoubtedly favors the in-
terpretation put upon it by the defendant's counsel. But

MAINE, ig4a 279

United States v. Jajri*.

then, though these are the formal words most usually em-
ployed to exclude a doubt whether the regulation was in-
tended to be permanent or not, they may be supplied by oth-
er language clearly indicating the intention of the legisla-
ture. Now it is quite certain ths^t this section must extend to
matters beyond the appropriations contained in the act It
provides that no officer in any branch of the public service,
or any other person whose salary and emoluments are fixed
by law or regulation, shall receive any extra allowance or
compensation in any form, unless it is authorized by law.
Now this act embraces but part of the appropriations for the
year, so that we are necessarily carried beyond the subject
niatter of this act. It must extend itself over all the appro-
priations of the year at least ; and though it may be said that
that this clause of the law does not necessarily look beyond
the current year, yet the second clause of the section evi-
dently does. That provides that no executive officer, other
than heads of departments, shall apply, from the contingent
fund of which they have the control, more than thirty dol-
lars annually, to pay for newspapers and pamphlets. The
word annuaUy here is necessarily prospective, and extends
the operation of this clause to future years. There are, in the
first clause, no restrictive words confining it to the current
year. If part of the section was intended to be permanent,
it is quite natural to suppose the whole was. It would be
very unusual to unite, in a single section of a law, one provis-
ion intended to be permanent, with another intended to be
temporary, without clearly distinguishing the permanent
from the temporary part My opinion is that this section is
a conclusive bar to the allowance of the commissions claimed
on the disbursements in question; and whatever we may
think of the equity of the claim, it is not for the Cpurt or the
jury to be wiser or more indulgent than the law.

This disposes of but part of the case. The other allow-
ances claimed involve questions of much more delicacy and

280 DISTRICT COURT,

United Statet v. Jarrit.

difficulty. The defendant claims an allowance of $26 29,
for office rent for the three remaining days of the quarter
ending October 1, and also for rent for the quarter following.
These two claims stand on the same ground, and may be
considered together. An office or place of business was ne-
cessary for the discharge of the duties of the agency, and the
rent had been charged and allowed, at the same rate, in pre-
vious quarters. It is admitted that it was hired and used by
the defendant for the purpose of the agency and for no other,
he not being engaged in any other business that required his
having an office. It was hired on a parol lease ; and, not
having given reasonable notice of his intention to quit before
the termination of the quarter, by the law of Massachusetts
he became bound for another quarter's rent. Mass. Rev.
Stat., part 2, tit. 1, c. 60, ^26. The ground of the claim
is this: that, having been dismissed from office when it was
too late to give the notice required by law, and having him-
self no previous notice that he was to be superseded, this is
a loss which he incurred without fault on his part, in the
business of the plaintiffs, for which they were bound to in-
demnify him. The answer is, that he held his appointment
at the mere will of the President, and, being liable to be re-
moved at any time without notice, he might have provided
for the contingency in his contract.

If this was a question between two individuals, and not
between an individual and the government, I cannot say that
I should feel much difficulty in arriving at a conclusion sat-
isfactory to my own mind. It was necessary, in the trans-
action of the affairs of the agency, that the defendant should
have a place of business where he might be found in busi-
ness hours. It was engaged on a parol lease, and by law
he was bound to give reasonable notice of his intention tQ
quit, or he became bound for another quarter's rent. He had
held the agency for three years and a half, and the term for
which he was appointed would not expire by its own limita-
tion for six months. No complaint had been made against

MAINE, 1846. 281

United States «. Jarris.

him, and he had no reason to suppose that he would be su-
perseded before the expiration of that time. If he had en-
gaged his office in the usual course of business, and there
was nothing unreasonable in the terms on which it' was en-
gaged, considering the tenure on which he held the appoint-
ment, the principal would be liable for the loss. The ques-
tion for the jury would be, whether an agent holding an ap-
pointment of so much importance, though the agency was
revokable at will, should be expected to engage his office
rooms on a tenancy from day to day, or week to week. If
the jury should think that he acted prudently and in good
faith, with a just regard to the interest of his principal, then
I should say that in law he was justly entitled to look to his
principal for an indemnity for a liability fairly incurred in
the prudent prosecution of his proper business.

It is true that when a man appoints an agent or mandata-
ry without limitation of time, he may always revoke the ap-
pointment at will. A person may enter into many other en-
gagements liable to be dissolved at will, but which, where oth-
er persons have fairly, and in the usual course of business,
acquired an interest under them, the law will prevent him
from dissolving them at an imreasonable time; or if it
does not absolutely prevent the act, will hold him to indem-
nify those who may suflTer an injury from it This is a
general rule of justice and equity, which is found in every
system of refined and cultivated jurisprudence. The en-
gagements may be terminated at will, but then this will
must be exercised reasonably, and not in mere wantonness
or malice. An illustration of the principle may be drawn
firom the contract of partnership. When entered into with-
out any limitation of time, it may always be dissolved at
the will of any of the parties. In that highly cultivated
system of jurisprudence which forms the basis of the law
of the whole continent of Europe, the Roman law, the re-
nunciaticm of the partnership by one of the parties, to be

282 DISTRICT COURT,

United States e. Jarrn.

valid, must be made in good faith, and not at an unareasona-
ble time, to the injury of the conmioa interest; for it is not,
says the law, the private interest of the individual partner,
but the common interest of the partnership that is regarded.*
This principle, so conformable to natural equity, to good
faith, and fair dealing, was adopted from the Roman law by
the ancient jurisprudence, and is confirmed by the new dvil
code of Franccf And though no such restriction is perhaps
established in the common law, yet it seems that a Court of
Equity will interpose and restrain a partner firom wantonly
and maliciously putting an end to the engagement, to the
injury of the common interest4

But the case of a parol lease at will, which arises in die
present case, is one which perhaps still mote clearly showsi
that when it is said that an engagement is liable to be term!*
nated by either party, it is, in the sense of the law, a will
imder the control of reason and justice. Though it is said
to be a contract merely at will, yet, independent of every
statute regulation at the common law, the lessor cannot,
without notice, eject the tenant and turn him into the street,
nor can the tenant discharge himself from the liability to
j^ay rent without giving the landlord reasonable notice, to
e^ble him to find another tenant^ These restrictions on
the capricious and wanton ex^^isj^^jpf the will, where the
interests of other persons are afieot^^, have their foundation

* Semper enim non id, quod privatim interest unius ex sociis, seryari lo-
let, Bed quod societati expedit.

Item, qui societatem in tempos eoit, earn ante tempui renunciando, socium
a se, non se a socio, liberat. Itaque, si quid compendii postea factum erit,
ejus partem non fert ; atsi dispendinm, sique prsestabit portionem nisi re-
Bunciatio ex necessitate quadam facta sit. JHg, 17, 2, 65, § 5 and 6.

i Pothier, Contrat de Soeie)^, No. 15Q, 161. Code Civil Francais, No.
1869, 70.

t Story <m Partnership, § 275. Note.
§4Kent'«Com. 111.

MAINE, 1846. 283

United States «. Jaryis.

in a rale of universal equity and justice, arising from the so-
cial nature of men, that a man shall so use his own rights
as not to injure another. Sic tiiere tuo ui'cUienum non
Icedas.

This reasonable and equitable principle has also its appli-
cation in the law of agency. There is no doubt, as a gener-
al rule, that the appointment of an agent may at any time
be revoked by the principal without giving a reason for it,
because it is the right of every man to employ such agents
as he sees fit. The agent also has the same general right to
renounce the agency at his own will ; for it is an engagement
at the will of both parties. But the contract of agency, or
mandate, involves mutual obligations between the parties ;
and these commence, if not as soon as the appointment is
made, at least as soon as the agent or mandatary commences
the execution of the agency. If he has entered on the busi-
ness, even if he does not accomplish prosperously what he
has undertaken, he will be entitled, from his principal, to an
indemnity for his expenses and services, if the failure does
not arise from his own fault. Domaty Lain Civiles, Liv. I,
Tit. 16, § 2, No. 1, 2. After he has engaged in the business
of the agency, the principal may at any time revoke his
powers and dismiss him from his service. But if his power
is thus revoked, the principal will be responsible to him for
any engagements he may have entered into, and any liabili-
ties he may have incurred in good faith, in the proper busi-
ness of the agency, before he had notice of the revocation.
Damai, Lois CivUes, Liv. 1, Tit. 16, § 4, No. 1. And so
the agent, after entering on the business, may renounce the
agency. But then this must be done in good faith, and be
preceded by reasonable notice, or the agent will be liable
to the principal for any loss that may result to him from this
cause. The agent cannot withdraw himself from his en-
gagement wantonly and without reasonable cause, without
rendering himself responsible for the consequences. Domat^

284 DISTRICT COURT,

United Statei v. Jarru.

No. 3, 4. Poihier, Mandat, No. 44 Dig. 17, 1, 22, $ 11.
Dig. 17, 1, 27, § 2. And Avhen a man has undertaken an
agency, he will not merely render himself liable for damages
to his principal, if he renounces the agency without notice
and without just cause, but a Court of Equity will go fur-
ther. If an agent is employed to make a purchase, and, find-
ing the speculation likely to prove profitable, he renounces
the agency and purchases for himself. Equity will hold him
a trustee for the principal, and give him the benefit of the
purchase directly, without putting him to an action for dam-
ages. 1 Story^s Equity, ^ 316.

It may be true that in our jurisprudence a precise author-
ity may not be found for all these propositions among the
adjudged cases. But they rest on such clear grounds of
justice and good faith, that they may be well taken for
granted without the authority of a direct decision, {Story^s
Agency, ^467,) and they all stand approved by the au.
thorities of the Roman law. They all flow from a great
principle of social justice. A man cannot, wantonly and
without reasonable cause, retract or annul his own acts and
change his purpose, when others, in the ordinary course of
business and in good faith, have acquired an interest in
them, to the injury of such persons, without rendering him-
self liable to repair such injury. The greatest of the Roman
jurisconsults reduced the rule to a short and pithy maxim: —
No man can change his will to the injury of another. Dig.
50, 17, 75. Nemo potest mutari consilium suum in cUterius
mjuriam. It is applied in some cases where no previous en-
gagements exist between the parties, but its application is
peculiarly stringent when mutual obligations by contract do
exist. If I agree with a mechanic, says Pothier, to build
me a house, and after the agreement I change my purpose
and determine not to build, I may dissolve the engagement
by giving him notice of the change of my will ; but if be-
fore the notice he has purchased materials for the work and

MAINE, 1846. 285

United States v. JarTis.

engaged workmen, I shall be bound to indemnify him for the
loss he sustains by the change of my purpose. CanircU de
Lauage^ No. 440. Duverg-ier, Droit Civil Francais^ Vol
19, ^ 370. If this was a case between two private persons,
the case put by Pothier would differ in no essential particu-
lars from the present. Both are contracts of hiring; for
the contract with a salaried agent or mandatary is essential-
ly a contract of hiring, though in some respects distinguisha-
ble from the common contract for the hire of labor. Duver-
gier, Droit Civil, Vol 19, TU. 8, Ch. 3. The defendant
was a salaried agent, and he had, for the sole purpose of the .
agency and for the sole benefit of his principal, hired an of-
fice. He held, as all agents do, the appointment at the will
of the principal, and he is dismissed without notice, while
under this liability for rent. If the engagement of his ofiice
was, as to the terms, reasonable and proper and in good faith,
under the circumstances, the justice of the case appears to
me so clear, that the very statement of the facts carries with
it the answer, and that conforms to the well established prin-
ciples of law.

The other charge, for clerk hire, does not appear to me to
be distinguishable in principle from the rent It is admitted
that in the business of the agency a clerk was indispensable^
and he had been allowed, as all officers of this description
are, a reasonable sum for clerk hire. The amount claimed
is the same as had been allowed and paid in previous quar-
ters. The clerk was engaged for a year, terminating with
the expiration of the term of the defendant's appointment ;
and, in strict law, he might perhaps have recovered his sala-
ry for the whole of the unexpired year. 2 Smithes Leading
Cases, Amer. Edit,, page 25. The defendant compromised
the claim by paying one quarter's salary. Is the defendant,
who has been compelled to pay this sum for a liability in-
curred in the business of the plaintiffs, entitled to be indem-
nified by his principal? If the contract with the clerk were

286 DISTRICT COURT,

United Statet «. Janris.

a reasonable and proper one under the circumstances of the
case, the decision referred to, from Pothier, shows how it would
be decided in a controversy between individuals. And wheth-
er the contract was, as to the period for which he was en-
gaged, reasonable and proper, would be a question for the
jury. If the duties of the clerk were such as might be safe-
ly entrusted to any ordmary person, it might be questionable .
whether the defendant, knowing the tenure of his own ofSce,
would be justified in contracting with him for a year. But
it is to be remembered that the agency of the defendant in-
volved great responsibilities, he having contracts and dis.
'bursements to make to the amount of several hundred thou-
sand dollars a year, and in the transaction he required a
clerk in whom he could place the most unreserved confi-
dence. It is hardly to be expected that a person of such
qualifications would be willing to engage his services on the
same terms as a common day laborer. One who is fit to be
trusted can usually engage on terms of more permanency ;
and one who would be willing to engage on such precarious
conditions, as to be dismissed at any time without notice, the
defendant might not be willing to trust to such an extent,
that, if he proved unfaithful, he might himself be involved in
ruin. Both his own safety and the interest of his principal
would require himtoact with more circumspection. When the
defendant engaged his clerk, a year of the term for which he
was appointed remained, and he had no reason to expect
that he would be dismissed before that term expired. If in'
your opinion the contract with the clerk was, under the cir-
cumstances, reasonable and proper, and was a liability in-
curred in good faith, in the prudent transaction of the busi-
ness of the agency, on the principles of law and equity he
is entitled to an indemnity.

It will be observed that I have treated this case thus far
as though it was a controversy between two private individ-
uals ; and have stated what appear to me to be the just

MAINE, 1845. 287

United States e. JarriA.

conclusions of law. Are there any reasons of general justice
or public policy, why the same principles should not be ap-
plied to these contracts between the government and an in-
dividual ? After having reflected considerably on the sub*
ject, I feel bound to say that none have occurred to me.
I know that it appears to be the fixed policy of the coun-
try, to hold the tenure of all appointments of this description
to be at the will of the President So also appointments of
the same character between private individuals are liable to
be revoked at will, and there are very satisfactory reasons
why they should be so. But between individuals we have
3een that, to a certain extent, this will is regulated and con-
trolled by the principles of equity, good faith, and fair deal-
ing. If any just cause, for the revocation of an agency, aris-
es out of the conduct of the agent, his powers may be revok-
ed by the principal without subjecting himself to any of the
responsibilities which have been mentioned. The agent must
bear the consequences of his own misconduct or imprudence.
But while he is in good faith prudently engaged in the busi-
ness of the agency, if his authority is revoked suddenly and
without notice, and he thereby suffers loss, the principles both
of law and justice require the principal to indemnify him.
Why should not the same measures of justice apply between
the government and an individual?

If there are no grounds of justice to vary the decision,
then X think there are reasons of public policy for holding
that the same principles of law apply to one case as to the
other. If the tenure of the appointment is merely at will,
it is to be remembered that it is equally at the will of both
parties. If the principal may revoke the agency without
notice, and leave the agent to meet all the liabilities which
he has incurred in the prosecution of the business of the agen-
cy, then the agent may renounce the agency without notice,
and leave all the inconvenience to fall on the principal. I
may have taken a very incorrect view of this subject, and, if

288 DISTRICT COURT,

United States «. Janris.

SO, I am happy that my error may be so easily corrected, but
it appears to me that one can hardly overstate the public
mischiefs that might arise from ttie establishment of such a
doctrine. All the most important officers of the government
hold their employments by this tenure. If they may, at any
time, renounce and abandon the public business entrusted to
them, with impunity, without first giving reasonable notice
to the appointing power of their intention, so as to enable
the government to supply their places, it is easy to see that
inconveniences of the gravest nature might arise. Take a
single branch of the public service, the collection of the rev-
enue. Every officer, from the highest to the lowest, holds his
office at will. Suppose the principal revenue officers of one
of our large ports should at once come to the determination
of abandoning their offices, and send by the mail notices of
their resignation when there were cargoes in port, duties on
which, to a large amount, would be due. In some ports it is
not uncommon fbr duties to accrue to the amount of half a
million, by the arrivals of a single day. There would be
nothing to prevent all the goods from being smuggled
ashore before the President could replace the officers by new
appointments. If it be said that this is putting an improb-
able case, it at least fairly tries the principle, and it must
be allowed to be a possiUe case. If the law be as I suppose
it to be, and the same measure of justice and the rules
of good faith and fair dealing hold between the government
and an individual in public agencies, as do between indi-
viduals in private agencies, then the officer, before renounc-
ing his trust, is bound to give reasonable notice to the govern-
ment, that the appointing power may have time to put an-
other in his place ; and if he abandons it without giving
such notice, whether it is done corruptly and in bad faith,
or in mere wantonness and caprice, he is legally bound to
indemnify the government for all the loss that may be
thereby sustained.

MAINE, 1846. 289

United States «. JanriB.

On the whole, the view, that I have of the law, is this:
The principal may at any time revoke and withdraw the
power of an agent at his pleasure, and without notice. This
is a right that is fully reserved to him by the law. But if
the agent has entered on the business of the agency, and has
fairly, in the ordinary course of business, and in good faith,
Altered into any engagements, or come under any liabilities,
in the prosecution of the proper business of the principal,
before notice of the revocation of agency, the principal will
be bound to indemnify him, unless the agent had given just
cause for such revocation. In the same manner the agent
may at any time renounce the agency, but then he is
bound to give the principal reasonable notice of his intention
beforehand, to enable him to procure another agent; and if
he does not, he will be bound to indemnify the principal
for any loss he may sustain. And the same principles hold
whether the government and an individual are parties, or
both parties are private persons.

If the law 6e as it has been stated, the determination of
this cause depends on a question of fact, which properly be-
longs to the jury to decide. If the jury are of opinion
that the defendant, in engaging his office and his clerk on the
terms he did, acted in good faith according to the usual
course of business, and that the conditions, as to the time
on which they were made, were reasonable and proper, and
such as a faithful and prudent agent would make, acting for
the benefit and interest of his principal, the jury x>ught to
find for the defendant. They were liabilities incurred solely
in the business of the plaintiffs and for their benefit, from
which the defendant himself derived no advantage, and for
which the plaintiffs are bound to indemnify him. The de-
fendant having actually paid these sums, under the statute
of the United States of March 3, 1797, ch. 74, they consti-
tute an equitable set-off against the plaintiff's demand. But
if, under the circumstances of this case, the defendant hav-

290 DISTRICT COURT, '

in Re Thocp.

log been appointed to his agency « for four yeavB, of wfaieh
six months remained, but Uable to be removed at any time
at will before the expiration of the four years, the jury are
of opinion that he ought, as a prudent agent, to have engag-
ed his office, and also his clerk, from day to day, or from
week to week, or what would come to the same thing,
merely at will, with the liberty of surrendering the office
and of discharging his clerk at any time, witliout notice,
and consequently liable at any time to be turned out of his
office, and to be left by his clerk, without notice, then you
will find your verdict for the United States for the ammuit
of these items, with interest from the time when they
should have been paid.

The jury returned a verdict for the United States, for the
sum of $53226 ; allowmg the set-off for office rent and clerk
hire, as charged by the defendant, and disallowing the
commissions charged on the disbursements to Harris's
heirs.

IN THE MATTER OF STttLMAN THORP.

The principles on which Courts of Equity charge trustees, assignees, and
executors with interest on trust money in their hands, are, that they hate
either used it in their own business, or improperly neglected Id invest
it

Where there has been gross neglect, the Court will sometimes make an-
nual rests and charge them with compound interest

If the trustee uses trust money in trade, it is a breach of trust, and he
will be charged with all the profit he has OEiade, but if there has been
any loss, that must be borne by himself.

Under the bankrupt law, assignees are chargeable with interest on all
money which they have collected, if not paid into the registry within
sixty days after it is received.

MAINE, 1840. 291

In R» Thorp.

June 12, 1846. In this case, objections were made by
True, the only creditor who had proved a debt, to the allow-
ance of some of the charges of the assignee for his personal
sendees; and he also asked, in his petition, that the assignee
might be charged with interest on the amount in his hands,
from the time that the money was received until it was paid
into the Registry. The case was submitted, without argu-
ment, on the statement of the assignee.

Ware, District Judge.

The objections of the creditor to the charges of the assignee,
I feel no difficulty in overruling. It appears, from his
statement, that he had considerable difficulty in disposing of
the property. He obtained an authority in the first instance,
to sell by auction. But having reason to believe that a com-
bination was formed between the bankrupt and his neigh-
bors, to prevent competition at the sale, for the purpose of
allSwing the property to go back to the bankrupt at a nomi-
nal price, he applied to the Court and obtained authority to
sell at private sale. Under this authority, he sold the prop-
erty, which was a small piece of land and all the assets of
the bankrupt, for 76 dollars, which was believed to be a fair
price. The assignee appears to have acted with prudence
and good judgment, and for the best interest of the creditors,
and his charges are moderate and not at all beyend what are
allowed in such cases.

He received the money in April, 1844, and deposited it in
January, 1846. By the 9th section of the bankrupt law, the
assignee is required to pay into the registry all assets receiv-
ed in money, within sixty days after they come into his
hands. In this case, the assignee retained it about a year
and a half, after the law required him to deposit it m Court.
For this time, the creditor contends that he ought to pay in-
terest. But the creditors can equitably demand interest only
on the sum to be distributed, after deducting the charges of

292 DISTRICT COURT,

ill jrZa Thorp.

administration. These amount to $42 45, leaving but $32,-
95 for distribution. The assignee makes no objection to be-
ing charged with interest, although he offers as an excuse for
not depositing the money, the smallness of the sum and his
expectation that more property might come into his hands,
and that he delayed paying the money over in order to make,
of so small a sum, but a single deposit

The principles, on which Courts of Equity charge Assign-
ees in Bankruptcy, Executors, and other Trustees with inter-
est on money collected and retained in their hands after it
ought to be paid over or invested, are perhaps as well set-
tled as any rules in Equity jurisprudence. The general re-
sult of all the cases is stated by the Master of the Rolls, in
Rocke vs. Hart, 11 Vesey, 68, to be that they are cha^;ed
with interest on two grounds, either that they have made use
of the money themselves or neglected to invest it for
the benefit of the estate. For a simple neglect to pay over
or invest the money, when that is part of their duty, the
practice of the Court of Chancery in England is, to charge
them with interest at the rate of four per cent. But if they
use the money in their own business, they are charged inter-
est at five per cent. And if they mix the trust money with
their own, as by depositing it to their own credit with a bank-
er, they are presumed to use it in their trade or business.
Treves vs. Townshend, 1 Brown, Ch. Rep, 384. Newton vs.
Bennett, 1 do, 361. Where there has been gross negligence,
and the money has been kept by the trustee for a long time,
the Court, in taking the account, will direct annual or semi-
annual rests to be made, carrying the interest into the prin-
cipal and making compound interest. Raphael vs. Boehm,
11 Ves. 92, iS. C 13 Ves, 407. These rules have been adopt-
ed and steadily acted upon by the Courts of this country.
The general principle on which the Court acts is, that the
trustee shall not be allowed to make a profit out of the trust
property for his own iJenefit If he uses the trust money in
his own business or trade, it is a breach of trust, and he is

MAINE, 1846. 293

In lie Thorp.

held to account for all the profit he has made hy the use of
the money, but if, in this misappropriation of the trust fund to
his own use, there is a loss, it must be borne by himself. The
rule of the Court may appear to have something of rigor and
severity in it, but it is firmly upheld in practice. All the profit,
as far as the trust money can be followed, shfill go to the ces-
tui que trustor equitable owner, but all the risk of loss is im-
posed on the trustee as a penalty for the violation of his duty.
2 Story's Equity ^ § 1277-8. 1 John. Ch. R. 620. Scheifdin
vs. Stewart, 1 do. 608. Dunscomb vs. Dunscomb. The object of
this strictness is, to secure a faithful administration of the
trust by removing from the trustee all temptations to a de-
parture from his duty, as well as to do justice to the cestui
que trust.

The rules adopted by the Courts of Equity on this subject
substantially agree with the decisions of the Roman law
from which they were perhaps borrowed. By that law, a
tutor was allowed six months to invest the money of his pu-
pil or ward, which he received at the time of his appoint-
ment; and if not invested in the purchase of land, or loan-
ed within that time, he was charged with interest for simple
neglect Dig. 26, 7, 16. But for money which he afterwards
collected in the administration of the trust, he was allowed
but two months. Dig. 26, 7, 7, ^ 11. If he applied the money
to his own use, he was not charged merely with the customa-
ry interest of the place ex more regioniSf but was held to pay
gravissimas seu legUimas usurcts, a higher rate of interest by
way of penalty for a breach of trust, as a Court of Equity
will charge a trustee with compound interest under the like
circumstances. Dig. 26, 7, 7, § 10. Voet. ad Pand. 26, 7, 9.
Such a coincidence on a particular subject between two high-
ly cultivated systems of jurisprudence, whether the decisions
of one were borrowed from the other, or the Courts of both
were led to the same conclusions by independent reasoning,
serves but to show that the doctrines are founded in natural
justice and in a wise policy.

294 DISTRICT COURT,

Ex Parte Storer.

In the present case, I am fully satisfied that the assignee
acted with conscientious fidelity in administering on the es-
tate, and made the most that he could out of it for the bene-
fit of the creditors. The amount, with which he is on any
principle chargeable, is but a trifle, but the principle iuFolr-
ed is important. The law requires the assignee to pay into
the registry all money within two months after it is received,
giving the same time to pay over money which a Roman tu-
tor was allowed to re-invest money that he had collected. It
does not add in default of paying within the time that he
shall be charged with interest. But having fixed the time
for paying or depositing the money, the law of Elquity comes
in and says that, if not paid at the time, the assignee shall
be chargeable with interest, if he has not a reasonable ex-
cuse for not complying with the order of the statute. When
the sum is small, or the assignee is prevented by the distance
of his residence from the Court, or other causes, from depos-
iting money punctually, the rule is not so rigorous but that
a reasonable indulgence may be allowed as to the time. In
the present case, interest will be charged for one year and a
half.

Ex Pakte storer.

A specific execution of a parol contract for the sale of lands will be de-
creed by a Court of Equity, when it has been partly performed.

But in the sense of Equity, when a specific performance of such a con-
tract is sought, those acts only are considered as part performance
which would operate as a fraud on parties unless the whole contract is
executed.

The payment of part of the price is not such an act But admitting the
purchaser to take possession under the contract, and to lease the land,
or make improvements upon it, is, in the sense of a Court of Equity, a
pert perfi>rmance.

By the statute of limitations in Maine, in an action on a mutual and op&n
account current, the right of action for the whole balance is deemed to

MAINE, 1846. 296

Ex Parte Storer.

have aocraed at die time of the last Hem proved in the account But
if a party sleeps on a demand without entering it on his account, until
the period of limitation is elapsed, he cannot extract it fix>m the statute
by entering it afterwards on his account

Where a party has an unliquidated demand, the limitation begins to run
from the time when the right of action accrues.

But if the parties, after the right of action has accrued, come to a settle-
ment, and determine the sum due by mutual agreement, the limitation
begins to run from the time of such settlement

June 12, 1846. This was the case of a proof of debt of-
feced by Seth Storer, agaiost the estate of Jonathan Tucker.
The material facts are stated in the opinion of the Court.

Wa»e, District Judge.

Storer offered proof of a debt against the estate, consisting
of Yarious items of account and promissory notes. The com-
missioner admitted the proof on the account to the amount
of $469 33, and rejected all the other claims, either as barred
by the statute of limitations or inadmissable for other causes.
The statute was admitted by the creditor to be a bar to all
except two items, and, as to these, he has excepted to the de-
cision of the commissioner, and asked the judgm^t of the
Court.

1. The first is for rent, or interest in the nature of
of rent, on a lot of land in the town of Saco, at the rate of
$42 per annum, from Nov. 26, 1827, to the time of the bank-
mptcy.

The facts, either as admitted by the parties or proved, are
these : Some time before the date Aientioned, but how long
does not appear, Tucker, by a parol agreement, bargained
with Storer for the purchase of this lot, for $700. At the time
of the agreement, Storer's office was standing on the lot, and
it was agreed between the parties, that the building should
remaih on the land until Tucker should give notice to have
it removed, and in the meantime the rent of the land should

296 DISTRICT COURT,

Ex ParU Storer.

be an equivalent for the interest which would be due on the
price. In this state the business remained until the time
above mentioned, when Tucker gave Storer notice to remove
his office, which he did ; Tucker then intending to put up a
building on the lot the following season. He however chang-
ed his purpose, and the lot remained vacant until 1835, when
Tucker let the land to one Banks, at the rent of $60 a year.
Banks placed an old house upon it, and occupied it for the
greater part of a year, while he was building a new house,
and then left it The lot has since remained vacant Banks
and Tucker having an open account, the rent remained un-
settled until a short time previous to Tucker's bankruptcy,
when it was allowed to Tucker in the settlement, to the
amount of $56. At first Tucker hesitated at receiving the
rent, urging that the land was Storer's, and thereupon Banks
applied to Storer, who told him that the land belonged to
Tucker, and he finally settled with Tucker, and allowed the
rent in the account No conveyance of the land and no
agreement for the sale had been made in writing. By the
original agreement. Tucker was to pay interest upon the
agreed price from the time that he gave notice to Storer to
remove his office. Storer's claim, disallowed by the com-
missioner, is for interest on the price from that time, or, if he
in Equity is to be considered as the owner of the land, for
rent for the same time.

The true question, as it appears to me, is. Who under this
parol agreement, partly performed, is in equity to be consid-
ered as the owner of the land ? If the agreement, followed by
the acts in part performance, is such an agreement as Elquity
would deem to be sufficiently executed, then the equitable
title is in Tucker, if not, then it is in Storer.

Are then the acts of part performance of such a character
as, in the consideration of a Court of Equity, will take the
contract out of the statute requiring all agreements for the
transfer of land to be in writing. In my opinion thfey arc.
The general principles by which Courts of Equity are gov-

MAINE, 1846. 297

Ex Fartt Stbrer.

emed in decreeing a specific execution of a parol agreement
for the sale of lands, on the ground that the agreement has
been partly performed, are, fir sty that an act shall, or at
least may, be deemed part performance when it is clearly
apparent that the act was done with a view to the agreement
being fully carried into execution, and solely with a view to
that Secondly, that an act will be deemed to be done in
part performance,^ when the act might operate as a fraud on
the party unless the agreement were flilly per&rmed. 2 Sto*
ty^s Eqmtify $ 761, 2. Such acts, and such only, are per*
mitted by a Court of Equity to extract a parol contract from'
the statute. Upon these principles it is now well settled that
a pa]rment of part of the price is not a part performance, al-
tboo^ the payment can be referred to no other cause than
the parol agreement for the purchase. This does not, in the
sense of a Court of Equity, operate as a fraud on the party,
though it may be a violation of good faith, and may be the
cauae of a loss to the party, if the other become insolvent.
Still, as he can have what the law considers a complete in-
demaity^ by the recovery of the money paid with the inter-
est, Equity does not hold it to be a fraud cognizable in that
tribunaL But it is well settled that when the purchaser
is admitted into possession under a parol contract, that
is a part performance. 2 Story's Equity, ^ 761. For if he
enters and takes possession under the agreement, unless the
agreement will protect him, he will be liable to an action of
trespasa If the vendor in this case were allowed to treat
the agreement as a nullity, it would clearly operate as a snare
and a fraud. To defeat the fraud of ^he vendor, Equity will
hold the contract, connected with such acts of part perform-
ance, valid to give an equitable title to the land, and will com-
pel a conveyance.

The case stated is precisely the present case. Tucker was
allowed to go into possession of the land. For jrears he con-
;Bidered himself as the owner, and, more than eight years af-

298 DISTRIC5T COURT,

E* PmrU Stoter.

ter the contract, exercised acts of ownership by letting the
land. He at this time certainly considered the contract valid
in Equity. Though he did, on the eve of his bankruptcy, hes-
itate about receiving the rent at first, he afterwards received
it, thus, as it appears to me, deliberately rea£5irming the
contract

The act of Storer also, in removing his office, it is not pre-
tended can be referred to any other cause than the agreement
for the sale. It appears to me therefore that it is a contract
partly executed, perhaps on both sides, and that either party
would have a right to claim, in a Court of Equity, a complete
and specific execution of the entire contract ; and if not on
both sides, at least on the part of Tucker.

If this be the correct view of the case, the claim, in the form
in which it is presented, cannot be allowed. It results in this;
Tucker, in Equity, is to be considered as the owner of die
land, and Storer has a lien on the land for the purchase
money with the interest from November 27th, 1827, when
he removed his office, till the time of the filing of Tucker's
petition in bankruptcy ; and a right of prior payment out of
the land in preference to the other creditors. The just and
equitable mode of settling the claim will be, to have the land
sold and the proceeds applied to the payment of Storer's debt,
and the excess over that sum will go into the estate, or, if
there is a deficiency, Storer will be allowed to prove in con-
currence with the other creditors. Or, as it seems probable
that the land will not sell for enough to discharge the lien, it
may be referred to a commissioner to ascertain the value,
unless the parties can a^ree on the value, and. on this report
the assignees will be ordered to release the bankrupt's right,
and the creditor be admitted to prove the residue of his
debt.

The second claim, rejected by the commissioner, arose in
this way. In 1821, James Read & Co. recovered judgment

MAINE, 1846. 209

Ez ParU Storer.

against R Tucker and Dyer, in which suit property had
been attached on the original writ, which was redelivered to
the debtors on the accountable receipt of Storer to the officer.
The defendants in that suit placed property in the hands of
Jonathan Tucker, the bankrupt, to be held in trust for the
security of Storer, and the proceeds, when sold, to be appli-
ed to indemnify Storer against his receipt. Storer was called
upon and was obliged to pay the execution. The amount
and the time when paid are not stated, but if the claim is al-
lowed, the execution is to be referred to, to ascertain both the
amount and time of payment The payment is admitted
to have been made between 1821 and 1825.

There is no doubt that Jonathan Tucker, after receiving
the property, was bound to hold and apply it to the discharge
of the trust, and that Storer, by a bill in Equity, might have
enforced the execution of the trust, and compelled him, af-
ter the goods were converted into money, to pay over the
amount of the execution, if so much had been received upon
them. 2 Kent?s Com. 307—4 Ibid. 533. But as all these
transactions took place as long ago certainly as 1825, and
probably in 1821, it appears to me that, if the claim is
put upon the ground of a trust, the remedy is barred by
the lapse of time. Equity, as a general rule, will not lend its
aid to enforce stale demands. But besides this general ob-
jection to the antiquity of the demand, which is a defence
peculiar to Equity, the demand is clearly barred by the stat-
ute of limitations. The statute does not indeed, in its terms,
apply to proceedings in Equity, and there are certain peculiar
trusts to which the statute is held not to apply. 7 Johns.
Ch. Rep. Ill, Kane vs. Bloodgood. But in all cases of
concurrent jurisdiction, where there is a remedy at law as
well as in Equity, the statute is held to apply with the same
force in Equity as at law ; and the Court holds itself bound
by the statute. 2 Ston/s Equity, ^ 1520. 7 Johns. Ch. Rep.
90,' Kane vs. Bloodgood. 2 Sch. ^ Lefroy, 607. Hovenden

300 DISTRICT COURT,

Bz Pmrtt Storer.

VS. JLon/ ilnn«^^. 4 Masorij 150, Robinson vs. /Tooitr.
And in cases where the jurisdiction is exclusively in Equity
and there is no remedy at law, if a party has been guilty of
such laches as would have barred his right if it had been a
legal right, CTourts of Equity hold the equitable right to be
lost by the lapse of time, in analogy to the statute. 1 Sch.
4* Lefroy, 413, 429, Bond vs. Hopkins. Whether this
trust then was one that could or could not be enforced at
law, the result will be the same. In the first case the
statute will be a direct bar, and in the second it will be held
a bar, in analogy to the statute.

But it is said that the claim may be allowed in the open
and running account between the parties, and that, as the
last item of charge in the account is within six years, this,
under the law of this StatCj takes the whole accouut out of
the statute. By that statute, in an action on " an open and
mutual account current,'' the cause of action is deemed to
have accrued at the time of the last item proved in the ac-
count. Of course, as in the account there is one item with-
in six years, this will extract the whole account from the
statute.

In the first place it is to be observed that this is an unli-
quidated claim against Tucker. It is not for the amount
paid on the execution, but a claim of indemnity on the trust
fund placed in his hands. The amount realized from that
may be less than the execution, and to ascertain what the
claim amounts to, an account must be taken. This has
never been done. Now until the amount is ascertained, it
does not appear to me that it can properly be entered as an
item in an open and running account And this seems to
be the view which the creditor himself took of the matter,
for though the account comes down to 1836, this is nowhere
entered on his books as an item of charge. Now it may be
admitted that, if this amount had been ascertained and en-
tered on Storer's books as a debit, the latter items in the

MAINE, 1846. 301

Ez ParU Storer.

account would have taken this out of the statute. But cer^
tainly the current account can extract nothing from the ope-
ration of the statute, which does not appear in the account.
It can only save such claims, of more than six years standing,
as have been entered by the party in his books, in the regular
and ordinary course of his business.

But it is further contended by the creditor, that, as the
demand is uncertain, the statute will not begin to run
against it, imtil the amount is ascertained, and that when
it is, and not before, it may be entered on the account as a
debit This in a certain sense is undoubtedly true. Where
A has a claim against B of an uncertain amount, and they
come to a settlement aud determine the amount by mutual
consent, the limitation will not begin to run but from the
time of settlement, though the claim and right of action may
have originated some years before. But this is because the
settlement and acknowledgment of the debt amount to a
new promise, and the'debt, in relation to the statute, is con*
sidered as having its commencement at that time. If Storer
and Tacker had made such a settlement, even after six
years had elapsed, this would have taken the demand out
of the statute, for here would have been a new promise. It
might then have been entered on his account and escaped
the limitation. But no such settlement and acknowledgment
of debt has ever been made.

This claim had its origin, it is admitted, as far back at
least as 1825. Before that time, Storer had paid the execu-
tion, and Tucker had sold the property. At that time Storer
could have enforced his right, by an action of account or of
assumpsit at common law, or at least by a bill in Equity, and
the limitation began to run from the time that the right of
action accrued. Now it will not be contended, where there
is an open and running mutual account, that a party, who
has slept on a demand for more than six years without en-
tering it on his account, can save it from the statute by en-

S02 DISTRICT COURT,

Ex Parte Storer.

teriug it on his current account after the period of limitation
has completely elapsed. Such a construction of the statute .
would open a door to unlimited confusion and fraud. Be-
sides it is clearly inadmissible on tlie plainest legal principles,
because the statute bar is complete and perfect before the en-
try, and such an entry on the books of the party cannot re-
store life to a claim already dead.

I should have been well satisfied if I could have foimd my
wayon firm and safe grounds to another conclusion, for, from
the admissions of the parties, as I understand them, especial-
ly connecting them with the unsettled account in Tucker's
books with E. Tucker and Dyer, there is reason to believe,or
suspect at least, that there was a balance in favor of Tucker
and Dyer, which ought to have been applied to the indemnity
of Storer. If therefore I could see any legal ground on
which the claim could be supported, I would refer it back to
the commissioner for further explanation. But in every view
which I can take of the case, on the facts which are undis-
puted, it seems to me that the statute is a conclusive bar, and
the Court cannot bend the established rules of law to meet
the Equity of particular cases.

MAINE, 1846. 303

Mason et al. v. Crosbj €t al.

MASON ET AL. IN Equity,

VEBSUS
CROSBY BT AL.

A contract, by which a right of pre-emption is given to a party for a cer.
tun time at a fixed price, on a honafdt expectation that he mily be-
coHie a purchaser, will not constitute him an agent of die vendor, al-
tfioagh he sells Ids interest in the contract at an advanced price before
die exinration of the term.

Bat if die right of pre-emption is given not with an expectation that the
party will become a purchaser, but solely for the purpose of enabling

I him to make sale of die thing, and to get his compensation in the
advanced price, this will render him the agent of the owner, and the
consequences of agency will follow so as to render the owner responsi-
ble for his acts.

Generally, poverty is no excuse to a suitor, for delay in commencing a
suit But, when the statute of limitations does not create a bar to the
legal remedy, die pecuniary embarrassments of a plaintiff will so for
excuse delay, not beyond the period of legal limitation, as to relieve Ids
daim fix>m the imputation of staleness ; especially when his embar-
rassments have been occasioned by the acts of the defendant

October Term^ 1846. This was a bill in Equity, brought
to rescind a contract for the sale of 6000 acres of timber land
lymg in the County of Washington, on the waters of the
Schoodiac, on the ground of fraud or mutual mistake. The
land was originally purchased of the Commonwealth of Mas-
sachusetts, by Munroe, who took of the Commonwealth a
bond for a deed. He assigned his bond to one Stephen
Smith. Smith re-assigned the bond and the equitable title
to the land to the defendants, at the price of two dollars and
a quarter, an acre, and they, having paid the balance due
to the Commonwealth, took a deed to themselves. The le-
gal title was conveyed to the defendants, Crosby and D.
Brastow, but five other persons, viz: Boynton, Wilson,

!■•

304 CIRCUIT COURT,

Mason eC al. v. Crosbj ef al.

Thurston, B. Brastow, and Porter were interested in the pur-
chase, in different proportions, to the amount of two thirds of
the whole, so that these defendants owned but one sixth each
of the land, and held the other two thirds in trust for the
other purchasers. All the psurties being desirous of selling,
it was agreed between them to offer the land for sale at the
rate of six dollars an acre, or $48,000 for the whole. There-
upon a bond was given by Boynton and Porter, two of the
equitable owners, to Nathaniel Fifield^ giving him a right of
pre-emption of the land at that price, for a limited time.
With this bond Fifield went to Massadiusetts and agreed to
sell the land to the plaintiffs for eight dollars an acre, the
difference of two dollars being his own profit.

When Smith transferred the bond of the Commonwealth
of Massachusetts to the defendants, he delivered to Boynton
two certificates, one of Samuel Sawyer and one of Joseph
Sawyer, one of them stating that he had recently explored,
and the other that he had worked on the land In getting off
timber in 1832, and both certifying that there was then stand-
ing on the land 6000 feet of pine timber to the acre on an
average, and from 4500 to 4M)00 feet of spruce; and also an-
other certificate, signed by five persons of St. Stephens, cer-
tifying to the good character of the Sawyers. It was prin-
cipally on the reliance placed by the plaintiffs upon these
certificates, with the strong assurances of Fifield and some
of the owners of the land, that they might be entirely de-
pended on, that the purchase was made. Mason, it is true,
went from Boston for the purpose of going upon the land
and exploring it himself, but by the artifices of Fifield he
was prevented from going to it, or, if he actually went on
any part of the land, from exploring it.

Before the sale of the land by Smith to the defendants, he
agreed with one Samuel Darling, Jr., to give him one quarter
of the profit he would make on the sale, in consideration of
Darling's assisting him in making the sale. For this pur-
pose. Darling procured these certificates of the Sawyers,

MAINE» 1846. 305

Mason ef aZ. v. Croahj ef al.

writing them himself, and they signing them. And he was
one of the five persons who afterwards signed a certificate
that the Sawyers were honest men, and that perfect reliance
might be placed on their certificate. These certificates were
proved to be grossly false, there not being one tenth of the

amount of timber on the land that was stated in them.
Nearly the whole had been taken off in the years 1831—2 tc
3. There was no evidence that Boynton and the other pur-
chasers knew the manner in which the certificates had been
obtained, or that they were false. Other representations
were made^ with regard to the expense and facilities of get-
ting the lumber to a market, which were proved to be untrue.

The plaintiffs charged in the bill that Fifield acted as the
agent of the owners. The defendants denied, in their an-
swers, the agency of Fifield and all knowledge of fraud or
falsehood in the certificates; and stated that they had no
personal knowledge of the land, and had purchased it on the
credit of written reports exhibited to them. Part of the pur-
chase money was paid when the deeds were executed, and
notes were given for the residue with a mortgage of the land.
The defendants have since entered on the land for the non-
payment of the notes, and foreclosed the mortgage, and thus
regained a complete title to the land. The bill prayed that
the defendants may be required to repay the money they
have received, and deliver up the outstanding notes, and be
perpetually enjoined from suing them at law. These are
briefly die material facts.

The case was argued by Bishop and iS. FessendeUj for
the plaintiffs, and by TV. P. Fessenden and Kent, for the
defendants.

Wabe, District Judge,

The first question, that arises in this case, is whether there
was such a fraud in the making of this contract^ as will fur-
nish a just gipound, on the principles upon which Courts of

306 CIRCUIT COURT,

Mason et al. v, Crosby ef al.

Equity are accustomed to deal with such cases, for rescind-
ing the contract, and replacing the parties, as nearly as may
be, in the same situation as they would have been if the con-
tract had not been made.

Upon this question, it appears to me that there is no rea-
sonable ground for hesitation. It is clear that the plaintiffs,
in making the purchase, relied mainly on the certificates of
the two Sawyers, supported by the strong representations of
Fifield and some of the owners, that full confidence niight be
placed in them. The plaintiflfs did indeed at first decline to
consummate the bargain witliout examining and exploring
the land themselves, and Mason went for the purpose of
Inaking the examination, in company with Fifield, and Fi-
field set out with him for that purpose. But before arriving
at the land, Fifield was, or pretended^to be taken sick, and
after remaining near the land for two or three days, he in-
formed Mason that his bond would expire in a short time,
and that he should lose the opportunity of selling and they
of buying, unless ho immediately returned to Bangor; and
they accordingly returned, without any examination of the
land, and completed the bargain. So that the plaintiffs pur-
chased entirely upon their reliance upon the representations
made to them by Fifield, corroborated by that of some of the
owners, that entire confidence might be placed on the certifi-
cates of the Sawyers, who were men of good character.
Now it is proved to a demonstration, that these certificates were
grossly false. In the years 1831-2 and 3, one William Todd
had a general license from Munroe, who was then the own-
er, to cut timber from the land, paying for his license the
gross sum of $1500 for the three years. During those years,
nearly the whole of the valuable lumber was taken ofil So
that when the plaintiffs purchased, according to the testimo-
ny in the case, instead of there being 6000 feet of pine lum-
ber to the acre, there was not more than half a thousand, or
about one twelfth of the amount which the certificate stated.

MAINE, 1846. 307

Mason €t al. v. Cnmby §t aim

The manaer in which these certificates were obtained
throws some light on their character. In the spring of 1836,
Smith engaged one Samuel Darling, Jr., to aid him in dispos-
ing of the land, and promised him, for his services, one quar-
ter of the profit he should make in the sale. Thereupon
Earling obtained these certificates of the Sawyers, writing
the certificates himself, and signing another paper to go with
them, certifying to the good character of the men. It is
immaterial whether Darling and the Sawyers did or did not
know that they were false. They would be equally fraudu-
lent in one case as in the other. That the object, in obtain-
ing them, was to delude and defraud purchasers, cannot be
doubted. These certificates were delivered by Smith to
Bojrnton, one of the purchasers, and by them put into the
hands of Fifield.

There is no evidence that the present defendants, or those
interested with them in the purchase, had any knowledge of
the manner in which these certificates were obtained, or that
they were so grossly inflamed and false. But it is fully prov-
ed that they received them, that they were put jnto the hands
of Fifield, and that he made Hise of them to induce the plain-
tifb to purchase ; that Fifield and some of the parties in in-
terest gave the strongest assurances that they might be de-
pended upon. Fifield said that there was a larger amount
of lumber on the land than the certificate stated, and that he
would guarantee 10,000 feet to the acre.

It is said by Lord Eldon to be an old rule of Equity, that
if a representation is made to a man going to deal on the
&ith of it, in a matter of interest, he that makes the repre-
sentation shall guarantee its truth. Evans vs. Bicknett^ 6
Fet. 183. And it makes no difference, in law or morals,
whether he knew or did not know it to be false. Ainake vs.
MOUcott, 9 Vesey, 21. 1 Tory's Equity, $ 193. It is equal-
ly a fraud to aver a fact to exist, the reality of which the
party is ignorant of, as it is if it is known to be false. There
is no doubt that the representation was made that the certifi-

308 CIRCUIT COURT,

Maton 6t ol. «. Crosby ef a<.

cates were entitled to full confidence, and that there vas
even more timb^ than they stated. Nor is there any mote
doubt that Fifield knew that the plaintifis relied mainly, if
pot wholly, on these lepresentations, in making the bar-
gain. Whether he knew them to be fraudulent and false, or
not, is not material in this case. He made himself responsi-
ble for thmr fairness and substantial correctness. But I think

it may be faidy inferred, that if Fifield did not know that
the certificates were false and procured for the purpose of
fraud, that he had reason to suspect^ and did, in fSust, sus-
pect it. If this suit were against Fifield therefore, no hesi-
tation could be felt in coming to the conclusion that the con-
tract ought to be rescinded, as being deeply tainted with
fraud.

This brings us to one of the important questions in the
case, whether Fifield, in making the contract, acted as the
agent of the defendants, so as to render them responsible for
his acts. This is charged in the bill, and is fully denied in
the answers. It becomes then necessary to consider the
terms of the contract entered into with Fifield. The instru-
ment itself is not produced, but it is proved, by the evidence,
and admitted to have been a bond, giving him a right of pre-
emption of the land for a limited time. Fifield was not
therefore an avowed agent, nor did he assume to act as such.
If he was made an agent, it was rather as a legal result from
the facts, than from the avowed intention of the parties, for
jt is not pretended that the owners, by this bond, intended
formally to make him an agent. But an agency may be im-
plied from the circumstances and mode of dealing, and forced
by law on the parties, which will, when the rights of third
persons have become involved, be equally binding as if it
were created by the most formal instrument.

It is certainly tnie, that an agreement, giving a party a
right of pre-emption of a thing, for a fixed price and a lim-
ited time, will not per se constitute him an agent of the vend-

MAINE, 1846. S09

Mason ef al, v. Crosbj ef at.

or. Even if the party sells his bond or his interest in the
contract before the expiration of the time, this will not ren-
der him an agent Such engagements are of frequent occur-
rence in commercial transactions, and it was never imagined
that they constituted the party, having such a bond or con-
tract, an agent of the owner, so that he became responsible,
as principal, for the contracts which the party made with
others. If such a right of pre-emption is given to one, with
the bona fide expectation that he may become a purchaser
solely, or in company with others whom he may induce to
join him in the purchase, this can in no sense make him an
agent of the vendor, nor will it render the vendor responsi-
ble for any fraud, or misrepresentation, which the party hav-
ing this right of pre-emption may make in a resale of the
thing. The owner has nothing in contemplation but the
sale of the thing to the person with whom he has made the
engagement On no principle of law or public policy, can he
be held, as a principal, for the misconduct of his vendee, in
a subsequent sale of the thing to a stranger. Whatever
passes between them, is res inter alios acta. If he makes
false and fraudulent representations to his vendee, and these
are communicated to the second purchaser, who relies upon
them, he may in some cases become directly liable to the
second purchaser for his fraud. Langridge vs. Levy^ 2 Mees-
on & Wells., 632. 5^. C. an error, 4 AT. & TT. 337. Pi/-
more vs. Hood, 6 Bing. N. C. 97. Crocker vs. Lewis^
Z Sumner R. 1. But this liability does not result, properly,
from the principles of the law of agency.

On the contrary, if the vendor gives this right of pre-emp-
tion to a party, not with the expectation or understanding
that he is to become a purchaser, either solely on his own
account or in company with others, but merely to enable him
to make sale of the thing to strangers, leaving him to get his
commissions or compensation in an advanced price, then, I
hold, he becomes in law the vendor's agent, whatever color

310 CIRCUIT COURT,

Mamhi §imLv. Crocby et al.

may be given to the contract. In the interpretation of con-
tracts, the law looks to the substance and effect of the con-
tract, and will not be blinded by the disguise which the parties
may throw over the essential characters of the engagement
Such an engagement has all the effects of an agency, and, ac-
cording to the intention of the parties, it has no other. It is
true that the party who has this pre-emptive right may,
if he chooses, become a purchaser himself. But this forms
no part of the original intention. The sole object is to clothe
him with the power to sell, and he may sell under it just as
well as he can under the most formal agency. The law will
not and ought not to allow a man, under such a disguise, to
reap all the advantages of an agency, and escape from all its
liabilities. If this can be done, it is easy to see how he may
practice frauds to any extent through a simulated vendee on
the unsuspecting and unwary, may securely pocket the fruits,
and leave the victims of the fraud to oeek their remedy from
an irresponsible man of straw.

To which of these categories does the engagement with
Fifield belong ? Was this right of pre-emption given with
any expectation that he would become a purchaser, or was
it merely to enable him to effect a sale of the land for the
benefit of the owners. On the whole evidence there can be
no doubt, I think, that it belongs to the latter. This appears
in various parts of the record, but perhaps as clearly as any-
yrhere, in a letter of Brastow, one of the defendants, to Mrs.
Leland, the wife of one of the plaintiffs, under the date of
April 5, 1837. In speaking of the sale of the land, he says,
**We told two of our company that they had better put the
land into the market at six dollars an acre. Wm. F. Bojrn-
ton" (the son-in-law of Brastow) " and Joseph Porter, ac-
cording to the usual custom, gave a bond of said land to
Nathaniel Fifield." There is not an intimation in this let-
ter, nor in any part of the record, that Fifield was expected
to become a purchaser. The bond was given to him to put

MAINE, 1846. 311

Mison et al. v. Crosby et al.

the land inio the market; that is, to enable him to make a sale
of it Can there be any doubt that the sole object of the
owners was to enable Fifield to sell the land for their bene-
fit ? I think not. My opinion therefore is, that Fifield was
substantially made an agent, and that the legal consequences
of an agency must follow.

. Brastow, in his letter, says, '^ we told ttao of our company
they had better put the land into the market, and in pursu-
ance of this advice the bond was given to Fifield." Who are
included under this plural designation, we^ does not appear ;
and it cannot therefore be determined, who concurred before-
hand in this arrangement with Fifield. It is certain that
Brastow did, and there can be no difficulty in holding him
responsible. But Crosby, in his answer, denies that he took
any part in it, and there is no evidence tending to show that
he did, or that he knew of its existence until some time after
it was completed. He admits however that he consented
to sell his interest in the land at six dollars an acre. And
when the pre-emption contract became known to him, he did
not dissent but acquiesced; and, after the sale was made by
Fifield, finally ratified it without any inquiry into the cir-
cumstances or authority under which the contract with Fi-
field was made, or the proceedings of Fifield in making the
sale. Brastow and the other owners derived no authority to
sell the interest of Crosby, from the naked fact that they
were jointly interested in the land. Yet when they had all
determined to sell for a fixed price, an authority to act for
all, in making the preliminary arrangements, might be more
easily inferred than it would be under other circumstanceis^
It is a fair and reasonable deduction from the whole evidence,
that Crosby passively acquiesced and allowed the acts of
Brastow and the other owners, and this silent acquiescence,
all the parties living in the same neighborhood, and the sub-
sequent ratification of the sale, under the circumstances, will,
in law, be equivalent to a prior mandate. A Court of Equi-
ty would be going a great way in covering up wrong to al-

S12 CIRCUIT COURT,

Mason et tU, v. Croiby et ol.

low a part owner to lie by silently and permit his co-owner
to practice a fraud in the sale of the joint property, and to
take with impunity the fruits of the fraud, merely because
he was not actiTely engaged in perpetrating it My opinioQ
on the whole case is, that though Crosby had no active par-
ticipation in constituting Fifield an agent to sell, nor in any of
the representations that led to the sale, he mu3t be held as a
principal, for the acts of Fifield, at least so far as he has
been enriched by the fraud at the expense of the plaintiffs
Jure ncUurcR (squum est^ neminem eutn alierius deirimmb
c^ injuria fieri locepletiarem. Dig. 50, 17, 206.

This brings us to the last question in the cause, and which
was strongly contested at the argument. If the right fo re-
scind the contract erer existed, has it been lost by lapse, of
time ? 1 have found more difficulty in ccmiing to a conclu-
sion Satisfactory to my own mind on this point, than in any
other part of the case.

In cases of fraud, time begins to run against the remedy
only from the discovery of the fraud. Brookshank vs.
Smith, 2 Younge ^ Collier , 52. Blennerhassett vs. Day^ 2
BaU ^ BecOty^ 129. The contract was, in this case, made
in August 1835, but the deception, which had been practiced
on the plaintiffs, was not in fact discovered until the fall of
1836. Suspicions had indeed before arisen in their minds,
that the representations which had been made to them were
highly exaggerated and untrue, but the real state of the facts
was not known to them till something more than a year af-
ter tfie contract was made. The bill was filed in August,
1841, so that even the six years limitation at law had not ex-
pired when the suit was commenced. If then the plaintifis
are barred, by lapse of time, of equitable relief, it is not by
the statute of limitations operating, by analogy, in Equity, as
it does directly at law. If rehef is denied on this ground, it
will not be by the application of the legal prescription, but
on the more general ground, that the plaintiffs have slept on
their rights for such a length of time that the claim has be-

MAINE, 18M. 313

BiMon ti «l. 9. Gro«b/ «C4il.

oome stale and antiquated. The ancient brocaid, mgUanH'
bus nan dormieniibus stibvenii far, is applied in Equity, in
some eases, with more stringency than at latur, and therefinre
Equity will sometimes, under peculiar dreumstances, hold a
party barred of equitable relief when he is not of his legal
right Then it simply withholds its hand and leaves a par-
ty to his remedy at law.

It would have been more satisfactory if legal proceedings
hti been instituted, in this case, at an earlier period, and
while the matter was fresh. But the delay is in part ac-
counted for. In the first place, negotiations were undertak-
en to effect a compromise. They failed, but some time was
consumed in this way. And in the second place, the plain-
ti& had been ruined and stripped of their whole property by
the fraud, and were destitute of the pecuniary means of
proseciiting thei r rights at law. It is said by Lord Redes-
dole, that the Court cannot take into consideration, as an ex-
cuse tot delay, the pecuniary embarrassments of suitors, for
if this were done, there would be an end of all limitation of
actions lor distressed parties. Hwenden vs. Lard Anneffy^
2 Schoales 4* Lefrojfi 639. But this was said in a case
where the plaintiffs had slept on their rights sixty years, and
iQ which the Court held, on a full consideration of the sub-
ject, that every equitable right must be prosecuted within
twenty years, or it would be barred by the statute of limita-
tiou operating by analogy on equitable fights, as it does di-
rectly at law. But when the delay has not been so great as
to create a statute bar at law, it is not so clear that the pe-
cuniary embarrassments of a suitor may not excuse some de-
lay, 80 ftir as to relieve the plaintiff's claim from the imputa-
tion of staleness, espe($ially when his embarrassments have
been occasioned by the acts of the defendant. On the con-
trary, it appears to me entitled to consideration. For when
a defendant rAies for his protection, in Equity, on lapse of
time, independent of the statute bar, he addresses himself pe-
cuUarly to the conscience and discretion of the Court This

21 -

S14 CIRCUIT COUET,

Mason §1 mI, v. Crosby «l ol.

is not an exemption which he can claim of strict right ; bat
he puts his defence either on the particular equities of his
own case, or on the general policy of discouraging the litiga-
tion of stale and antiquated demands. Now when the plain-
tiff pleads, as an excuse for delay, his inability to meet the
necessary expenses of prosecuting his rights, and this inabil-
ity is occasioned by the very fraud for which he seeks re-
dress, this plea certainly goes far towards overcoming the de-
fendants' objections, whether addressed to the conscience or
prudence of the Court Such is the case with the present
plaintifb, and my opinion is, that they have not come into
Equity too late to be heard, though they may not be entitled
to all the relief they might have had if they had come earlier.
The legal title to the land was in the defendants, and the
deed was executed by them. But by an agreement between
the parties concerned in the speculation, these two defend-
ants were to have but one sixth each of the interest in the
purchase of Smith. Two thirds was in several otlier per-
sons, and this was known soon after, if not at the time when
the bargain was completed. The money which was paid was
distributed among the parties in proportion to the interest
they had under this agreement. These persons should proper-
ly have been made parties, and if not known when the orig-
inal bill was filed, should have been brought into the case by
a supplemental bill. As this has not been done, the decres
cannot affect their rights. Still, as Crosby and Brastow held
the whole legal title, and were ostensibly the sole contracting
parties, they might perhaps, if the suit had been commenced
as soon as the fraud was discovered, have been held for the
whole and left to seek contributions among the other parties
in interest But since that time some of them have become
insolvent, and it is not equally in the power of the defend-
ants now to recall the money, as it would have been had the
suit been promptly commenced. The delay has occasioned
this inconvenience to them, that if they are now held to re-
fund the whole of that part of the purchase mcmey receivedi

MAINE, 1846. 315

Mason §t al, «. Crosbj ei al.

the decree will operate, as t6 them, not simply to put them
back in the same situation as they would have been in, if no
contract had been made, but they will sustain an actual loss.
It would be throwing on them a loss occasioned by the act,
that is, the delay of the plaintiffis. If the defendants had
been actively engaged in concocting the fraud, they might
have been held responsible in mMdo^ and left to bear the loss
arising from the insolvency of the other parties. Bnt there
is no ground for imputing to them fraud, personally, certain-
ly not to Crosby. They had not, and did not pretend to
have, any personal knowledge of the land, but bought on
the representations of others. It appears to me therefore
that it would be inequitable to visit upon them the conse-
quences of this delay of the plaintiffs. And a Court of
Equity has authority not only to prescribe the terms on which
it will grant relief, but to mould and temper its relief so as
to meet all the equities of the case.

My opinioni on the whole, is, that the sale should be de-
clared void, as to so, much of the land as, by the agreement
of the vendorsi belonged to Crosby and Brastow; that the out-
standing notes in the hands of the defendants be ordered to
be given up and cancelled ; and that each of the defendants
be decreed severally to restore to the plaintiffs so much of the
purchase money as they each severally received to their own
use, and that it be referred to a master to examine and report
the amount so received and to be repaid, and that the plain-
tifb be required to release to the defendants such undivided
portion of the land as equitably belonged to them according
to the agreement aforesaid, and that all further action be re-
served to the coming in of the master's report

316 DISTBICT CXMHIT,

THE ELIZA.

Every engagement to perform a fiiture act n aulijeet to an implied eon-
dition, that the peiibrmanoe of it ie not rendered unpoanble bj an ae-
oident of nuior foroOi or a fortuiloiui event

Am nnnraal djfficulqrin obtaiidnga maaler and crew to navigate a venel
18 not one of tlioee events that vrill ordinarily exeuae an owaor from
performing a contract of afirei^tment for the conveyanoe of goodSi

Marchf 1847. Hiis was a libel filed against die
Schooner Eliza, for the breach of a parol ccmtract for the
transportation of a quantity of lumber from the port of Saoo
to New York. The libel was filed on the 4th of Febmary,
and the contract was entered into on the last day of Noyem*
ber, or the first of December. The cargo was pat on board,
December 1st, while tlie schooner lay at the upper fer-
ry, and she then dropped down to the lower ferry lo avoid
being detained by the ice, which began to be made in the
river. She lay there, without proceeding on her voyage, to
the time of the filing of the libel, and in fact continues there
to this time, with the cargo on board. The schooner, though
a small vessel, was proved to be in a good condition and
every way fit for the voyage, though at that season of the
year the voyage is one of considerable danger. She is now
ready for sea and is said to be about sailing on the vo3rage.
The libel was for damage for not proceeding on the voyage
within a reasonable time.

HaineSj for the Ubellant; Howard and Leland^ for the
owner and respondent

Ware, District Judge.

The fact, that a contract of affreightment was made and
the cargo taken on board in pursuance of the contract, is ad*
mitted. The controversy is. What were the terms of the
contract? The Ubellant contends that it was a contract in

MAINE, 1847. 317

The £liia.

the ordinary and usual terms of such engagements, to re-
ceive the cargo on board and to proceed on the voyage with-
out mmecessary delay. The owners allege that it was con-
ditional ; that it was to receive the cargo on board where the
schooner lay, and drop down to the lower ferry, and then to
proceed on the voyage as soon as a master and crew could
be obtained to navigate her ; the vessel being small and the
voyage at that season being hazardous, that their engage-
ment to perform the voyage was made subject to the condi-
tion that a master and crew could be obtained, and that they
have made all reasonable efforts to procure a master and
have not been able to succeed. It is proved that they ap-
plied to several masters to take charge of the vessel, who all,
for various reasons, declined; but not particularly on ac-
count of the dangers of the voyi^e.

The question then, which is before us at this time, is this,
What were the terms of the contract ? Was it absolute or >
conditional 1 It was not reduced to writing, and no witness
appears to have been present when it was concluded. The
terms cannot therefore be learnt from direct evidence. One
witness has been examined, who was present when the ap^
plication was first made by Davis, the libellant, to Gilpat-
rick, one of the owners. He says he went with Davis and
introduced him to Gilpatrick, and that Gilpatrick offered him
the vessel for $100 for the run. No condition was annexed
to the offer, and nothing was said about a master. The con-
tract was not made at this time, but the witness went with
Davis to examine the vessel. Ellis, another witness, was
present at a subsequent conversation on the first of Decem-
ber, and at this time it appears that the contract had been
made, or that it was then made, for the price was mentioor
ed which was to^be paid for the run. At this time, Gilpat-
rick stated to Davis that he had no master or crew, that his
clerk was to be absent, and that he could not attend to load-
ing her that day. To which Davis replied that be had men
whom he could employ, and that he, Davis, would assist in

318 DISTIUCT COURT,

The Elisa.

loading, and the cargo was in fact put on board that day, in
part by men employed by the owner, and in part by Davis.

The testimony of this witness brings us nearer to the con-
tract than any other part of the evidence, as it seems proba-
ble that the bargain was then concluded. But, unfortunately,
he heard but part of the conversation. He says that Davis
offered eighty dollars for the run — the sum that was finally
agreed — ^and this, connected with the remark of the owner
that he had no master engaged, renders it highly probable
that the bai^in was not concluded before. Why was this dif-
ficulty interposed by the owner, that is, the want of a mas-
ter and crew? The circumstances, I think, easily and nata*
rally explain it The vessel was lying at some distance up
the river, and it was about time for the navigation to be clos-
ed by the ica If the schooner was to perform the voyage,
she must be ready immediately, or the voyage woul4 be
prevented by the ice. The cargo must be taken on board at
once. The owner therefore objected that he had no master
and crew; and to obviate it, Davis replied that men might be
employed for that purpose, and that he would himself assist;
and the vessel was in fast loaded that day. It seems there-
fore altogether probable that the want of a master and crew
was mentioned in reference to the necessity of immediately
putting the cargo on board, and not to the ultimate perform-
ance of the voyage, if she could be loaded and carried down
to the head of winter navigation before the river closed.
There is other testimony that bears more or less on this mat-
ter, the want of a master ; but taken altogetfier, it does not
materially vary the posture of the case as it is left by the tes-
timony of this witness.

The conclusion to which I am brought by the evidence is,
that the contract was not made dependent on a condition
that a master and crew could be found, but that it was, as
charged in the libel, in the ordinary form, that the vessel
should proceed on her voyage without unnecessary delay.
It is true that every engagement to perform a future act is.

MAINE, 184Y. 31 Sl

The niia.

in one sense, conditional. If it becomes impossible by any
event not imputable to the party who is bound to perform it,
unless he assiunes the risk of all contingencies, he is excus-
ed. The law compels no one to impossibilities. Path.
ObUg. 148. 6 TouIL 9SST. Those events called accidents of
major force, or fortuitous events, or the acts of God, always
constitute an implied condition, in every engagement, for a
future act. If the vessel had been burnt by an accidental
fire, or destroyed by a tempest, this would have been a va-
lid excuse. But the difficulty of obtaining a master and
crew is not one of those contingencies implied in a contract
of affireightment, to excuse a non-performance of the contract.
It is not unusual for an owner to engage a vessel for a voy-
age before he has engaged a master, and a crew is rarely en-
gaged until the voyage is determined upon and the vesseP
nearly ready for sea. These contingencies the owner takes
on himself. I do not mean to say that the difficulty of obtain-
ing a master and crew to navigate a vessel may not be such
as to amount to an impossibility, and thus come within the
class of fortuitous events that will excuse a party from per-
forming his engagement. But the circumstances must be
very extraordinary to amount to a justification. It is proved
by the testimony, that the owner made efforts to obtain a
master. Five different persons were applied to without suc-^
cess. But others might have been found, if not in Saco, in
some of the neighboring towns. And I do not think that
any such extreme case is proved, as will excuse the owner
from his engagement, under the notion that it has become im-
possible by a fortuitous event or an accident of major force.

^ Decree fer LibeUatU.

920 DISTRICT COURT,

In lUWuren.

In thb Matter of HENRY WARREN, a Bakkbupt.

A partnenhip may eziit in a nD|^ aa well aa In a aariea of tnmaaiTtloiML
If there ia a joint purchaaei with a riew to a joint aale and a coounun-
ion of profit and loaa, thia will conatitute a partnership.

There may be a partnenhip in buying and selling landa aa weD aa mer«
chandiae; and ao &r aa third persona are concerned, it luay be proved
by the same evidence, though, aa between the partnerB,it may be neces-
sary to prove the partnership by written evidence.

Generally, when a member of a firm makes a note, or drawa a faiD, ia
hiaown name, though it ia known to be on the partnership aoeoont, tht
firm wiU not be bound.

But this rule does not prevail where there ia a aecret partner mdmown to
the creditor.

Nor when one of a firm haa been in the hal^ of drawing and endoiahig
biOa in his own name fixr the use of the firm, and the other partners
have treated them aa binding the firm.

Where two persons, who are partners, unite in drawing a bill or making
a note, though they aign their several names and not that of the firm,
if it 18 in ftct on the partnership account, it seems that it will be treated
throughout as a partnership security.

On the dissolution of a partoership, in cases of insolvency, the rule of
£Squity is, that the partnership creditors have a preferred claim against
the assets of the firm, over the separate creditors of die partners, and
the aeparate cr^itors have a like preference over the partnership cred-
itors, against the separate assets.

This rule of Equity is established as the rule of distributioBy by the
I4th section of the' Bankrupt Law.

September, 1847. In this case, the bankrupt petitioned
both as an individual and as a partner in the late firm of
Warren & Brown. The firm and both partners were
insolvent The separate assets of Warren were con-
siderably more than the partnership assets, and a question
arose between the dififerent classes of creditors, whether the
partnership, which was originally entered into in the busi-

HiUNE.lSM'. 921

Ai Jn WMfSA*

hess of attorneys and counselbre at law, extended to tfieir
speculations in lands, and if so, by what criterion the debts,
which originated in land transactions, should be distingnish-
ed from the separate debts.

The case was argued by JeweU and HiMs^ for the sepa-
rate creditors of Warren, and by Adafn9 and Rawe^ (or ser-
eral creditors, whose claims originated in the land transac*
tioQs of Warren A Brown, and who, it was contended
OQ the other side, were partnership creditors. The material
facts are stated in the opinioii of the Court.

Wars, District Judge.

In the spring of 1834, Warren and Brown formed a partner-
ship for carrying on the business of attorneys and counsel-
lors at law. There were no written articles of partnership,
but the understanding between them was, that it was to be
confined to their professional business. Without any addi-
tional agreement, they began soon after buying and selling
timber lands. There was no formal agreement as to the
terms on which this business was to be carried on, but they
do not appear originally to have contemplated a general
partnership in land transactions, and probably did not aatici-
pate the extent to which their speculations were eventually
carried. It was understood between them that either might
purchase, but that the other was not bound to take a share
in the purchase without his own consent to each particular
purchase, but when both parties assented to the purchase,
they were to share in equal portions in the profit or loss. Ac-
cording to the usage of the time, they sometimes purchased
and sold lands directly, and sometimes preemption |bonds or
contracts for the sale of lands.

This land business was commenced in the fall of 1834,
and was continued on an extensive scale tltfough the ensu-
ing winter and summer, until the period of qpeculation was
over. Though they did not contemplate originally a gener-

333, DISTRICT COURT,

H AcWoiea.

--■ ■ -— ^ —

al partnership, and each was considered at liberty to pur-
chase and sell on his own private account, there were in&ct
no timber lands purchased by either, except what were tak-
en on joint account When they commenced the business,
they gave their joint notes, signing separately and not the
partnership name, but more frequently the securities, for the
convenience of negotiation, were in the form of bills of ex-
change, drawn by one and accepted by the other. It was not
long, however, liefore the name of the firm was freely used
in these land securities; at first, it seems, by Brown, but not
objected to by Warren. This trade in timber lands appears
to have led to the lumbering business, in which they seem
to have been engaged in the same way without any special
partnership agreement Whatever may have been the pri-
vate intentions of the parties, it seems that they must have
soon come to be considered, and dealt with by others, as a
firm. A list of notes or bills of exchange is produced, taken
from the books of Warren, more than sixty in number, com-
mencing with the spring of 1836, and continued to the fall
of 1839, growing out of land and lumber transactions, in
which the name of the firm is used as promissor, drawer, ac-
ceptor, and endorser for various amounts, from small sums
up to two, three, and five thousand dollars, and in the whole
exceeding $50,000. It is quite impossible that such an
amount of business, continued for such a length of time,
could have been done in the partnership name, without its
being generally understood that a partnership in the business
existed. Third persons must have dealt with them and giv-
en them credit on that understanding.

The earliest land transaction in which they were engaged
was with Thacher and Parker. This was an obligation ot
Thacher and Parker, to convey to them 12,040 acres of land
at the price of two dollars an acre, part to be paid in cash,
and part on credit of one, two, and three years, provided sat-
isfactory security was given in sixty days. This obligation

MAINE, 1847. 928

H MUWunm.

is in the band- writing of Warren, and the obligation runs to
them in their partnership name; so that from the very com-
mencement of their speculations, whatever may have been
the private intentions of the parties, the business was trans-
acted in a way tha^ must have led those who dealt with
them to suppose that a partnership existed, and that the
trade was on partnership account Between the parties
themselves, in the earlier part of their speculations, each pur-
chase was treated as a separate and independent transaction,
and, when the land was sold, the parties settled it and divid-
ed the profits and loss. But this was a private affair be-
tween themselves, and not known to third persons with
whom they dealt

A partnership may exist in a single transaction as well as
in a series. Story on Partnership^ ^ 21. Pothier^ Conirat
de Soeietij No. 64 3 Rents Com. 30. If there is a joint
purchase, with a view to a joint sale and a communion of
profit and loss, it is a partnership trade, although it is con-
fined to a single thing. Dig. 17, 2, 6. Now every purchase
was made with a view to a joint sale on joint account, so
that, without any general agreement for a partnership, they
were, in law, partners in every purchase, and, by the habit
of buying and selling in this way, they held themselves out
to the public as general partners iii the business.

There may be a partnership, in buying and selling lands
as well as in ordinary commercial business. 21 Maine Rep.
418. Dudley vs. lAUlefidd. Story on Partnership, § 23.
And so far as the rights of third persons are involved, it is
not perceived why it may not be proved by the same evi-
dence. To give full effect in law to the partnership, between
the partners themselves, it seems to be necessary that the
articles be in writing. For if the partnership is by parol on-
ly, and one of the partners makes a purchase in his own
name, but intended for the benefit of the firm, the other, on
the mere ground of the partnership, that being by parol, can-

924 DISTRICT COURT,

H JU Wtfren.

not take advantage of the contract, for, if he coald, he would
acqnire an interest in lands by parol, directly in opposition to
the Statute of Frauds. 3 Sumner^ 435, 471, Smith v. Bum-
ham. But this is only between themselves. Third perKnis,
dealing with them, are not affected by any private arrange-
ments between the partners unknown to them. If they hold
themselves out to the public as partners^ those who deal with
them have a right so to regard them, and they will be bound
as partners.

It appears to me that there is abundant evidence to prove
a partnership in their land speculations, as to third persons.
Their very first contract was in the name of the firm, and
every succeeding one, whether made in form in the name of
the firm or not, was adopted by them and taken on joint ac-
count Though the securities, they gave in their earlier
transactions, were not given in the partnership name, yet
when they gave their joint note, or one drew a bill and tfie
other accepted it, it was as well understood to be a partner-
ship transaction, as if the name of the firm had been used.
But the business having been transacted in this way, a ques-
tion arises of some difficulty, whether, on the bankruptcy or
insolvency of the partners, these debts are to be placed to
the partnership account, or are a charge on the separate
estates of the partners.

• By the general rule of law, if one member of a firm
makes his separate note, or draws a bill of exchange in his
own name, he will be bound, and not the firm, although it is
on account and for the benefit of the partnership. Story tm
Partnership^ § 124, 127. The general reason by which this
decision is vindicated is, that the creditor, by accepting the
separate security of the individual partner, is supposed to
have elected to take that in preference to the security of the
firm. As the decision proceeds on the ground of a supposed
choice in the creditor, it does not hold in cases where it ap-
pears that no choice could have been made; and consequent-

MAINE, ia«7. 3S5

Jw Mb ^t Mms*

ly where there is a dormant partner, and not known to the
creditor, if the contract is for the benefit of the partnership,
he will be bound, although he is not named. And for the
same reason, where one of the partners has been in the hab-
it of drawing and endorsing bills and notes in his own name,
for the nse and benefit of the firm, if it appears that the oth^*
er partners have treated such signature as binding on the
firm, the name of the partner wiH be held as standing for that
of the firm, and be binding upon them. So it was ruled in
the case of the Souih CaroHna Bank vs. Case, 8 Bam. ^
Cre9W. 437. £Sfory on PartnersMp^ $ 142. The creditor
will be hdd as trusting not the partner alone but the fimt
It is not therefore universally true, when a contract appears
on fts face to be the separate contract of one partner, tfiat it
will not be binding on the firm if it is understood to be, and
is in fact, for their benefit The presumption, that arises from
the form of the security, that die separate name of the part-
ner was taken from choice, may be overcome by proof that
no such election was made. The true and mcnre general
principle seems to be, that when the intention of the contract-
ing parties is that the firm shall be bound, and the ccmtraei
is within the scope of the partnership business, the contract
will bind the firm in whatever form it may be made.

But when a partnership consists of two persons, and Aey
both sign a note or bill with their individual names and not
by the name of the firm, or one draws a bill and the other
accepts it, if it be in foot for a joint or partnership object,
there would seem to be strong reasons fev putting it, in the
marshaling of securities, to the partnership account Indeed
it has been held, that if two persons, who are not partnev^
unite in drawing a bill of exchange, Aey are to be consider-
ed as pt^tners m that bill. It is said that ttie public 9M to
infer their relation to each other from the face of the paper.
3£sii/'sC%Hfi.30. (>mdt va VSdhsiy, Z>ou^. 61^ ffo/ir. And
a like decision has been made on a joint and several promii-

32S DISTRICT COraiT,

* /» Jl« Wama.

sory note, so that a demand or notice to one is a demand or
notice to both, though perhaps the weight of authority is,
where the parties are not in fact partners, the other way.
Story an Promissory Notes^ $ 239, note. Story on^ Bitts of
Exchange^ § 197. But where two persons, who are partners,
unite in drawing a bill or making a note, though they sign
their several names and not that of the firm, if it is in fact
for partnership purposes, I am not aware that it has been de-
cided that such a note or bill is not to be treated throughout
as a partnership security ; that a demand or notice to one is
not a demand or notice to both, or that a creditor holding
such a security would not have, in the administration of as*
sets, a preference against the joint estate, over the separate
creditors of the partners. The general language of ele-
mentary writers leads to the conclusion, that such a note ot
bill is to be treated for all purposes as strictly a partnership
security. The reason for so doing, in the marshaling of as-
sets and securities, is certainly very strong. The fruits of the
contract have gone to increase the social fund, and there
is a natural equity in allowing the creditor a preference
against that fund which his contract has 9ontributed to aug-
ment.

On the dissolution of a partnership, in cases of insolvencj^
the rule in Equity is, that the partnership creditors have a
preferred claim against the partnership assets, over the sepa-
rate creditors of the partners, and the separate creditors of
the individual partners have a like preference over the part-
nership creditors, against the separate assets. The principle
is, that each class of creditors is thrown on that fund to
which he has given credit, and which he has contributed to
enrich, and neither class can come on the other estate, until
the appropriate creditors of that estate have been fully satis-
fied. 3 Kenfs Com. 64, 6, note. The same general rule
holds in bankruptcy. In England it is indeed, in bankrupts
cy, qualified by some exceptions partly founded on technical

MAINE, 1847. 927

III RtWamn.

reasoning, and partly on some supposed convenience, but
certainly not standing on any plain and intelligible rule of
equity or justice. Siary on Partnership^ $ 377, 381. Eden
an BankrupUs^ 170, 175.

The rule of distribution, established in the general juris-
prudence of Courts of Equity, has been incorporated in ex-
press terms into our bankrupt law. The 14th section directs
that after the expenses and disbursements of the assignee
are fully paid, the whole of which are a charge on the whole
property, " the net proceeds of the joint estate shall be
appropriated to pay the creditors of the company, and the
net proceeds of the separate estate of each partner shall be
appropriated to hii separate creditors ; and the balance, if
any, of each estate, after paying the debts primarily charge-
able upon it, shall be carried to the other estata" The lan-
guage of the law is clear and explicit, and the only question
left is. Which are partnership and which separate creditors?
I have already expressed my opinion that the speculaticms in
land were, from the beginning, on partnership account, and in
whatever form the securities were given, the presumption is
that credit was given to the firm. That presumption how-
ever may be overcome by proof that credit was in fact given
to the individual partners.

328 CIRCUIT COUET,

Carr, JtM9ignid§^ v. Gmle 0I al,

J. W. CARR, AssioNBB OF S- C. Hbkbnwat,

VBRSDS

STEPHEN GALE ahd S. C. HEMENWAT.

In an actkMi of Trorer a^^uiwt Gale and Hetnenwayy bgr the mmgaem of
UemenwayyfortheooiiTeriionof astoreof gooda in the powaMion of
Hemenwayy claimed by Gale aa owner, and by Hemenway aa the agent
of Gaki and claimed by the plaintiff aa part of the aaseta of Hemenwaj's
bankruptcyy it waa held that the Circuit Court had jurisdiction afunst
Hemenway aa well aa Gale.

The IKatrict Court has, under the bankrupt law, ezchiaive jurisdiction of
all controrersies, between the asrignee and the bankrupt, arwing oat of
hia baakn^Mey, and depending on hia quality or fioiMi, aad involfing
hia rights and inununitiea aa a bankrupt

But when die bankrupt has poaseasion of property daimed by the a»>
signee aa part of the aneta of the bankruptey, and the bankn^i
claima to hold them, not aa a bankrupt but under an independent title
aa the agent of a third person, he is simply a person claiming an
adverse interest, and the Circuit Court has jurisdiction.

The assignee, to maintain his tide to sue, need prove only the decree of
bankruptcy and his appointment This iBprima/ade evidence of his
title under the law, without producing the bankrupt's petition to be
declared a bankrupt

In Trover, it is not necessaiy to prove a demand of the goods and a re-
fbsal, where there has been an actual conversion.

When a party objects to the testimony of a witness, part of which is ad-
missible and part inadmissible, he is bound to point out that part to
which the objection lies, or the objection will be overruled as cov*
ering too much.

In a case where fraud is charged, and the firaud is attempted to be
proved by circumstantial evidence, facts which have no tendency ta
prove the frauds charged, but merely tend to create a personal preju-
dice against the party, are inadmissiblB ; but if the Court can aee that
they have any tendency to prove the fraud, though it be but 8ligiit,they
are admissible to be submitted to the juiy, who are the proper judges of
their weight

MAINE, 1847. 329

Ctrr, JSbsignM^ «. Oftle et al.

October^ 1847. This was an action of Trover brought
by Carr as assignee of Samuel C. Hemenway, one of the
defendants, against Gale and Hemenway, for the conversion
of a store of goods in Bangor. The plaintiff claimed them
as part of the estiate of Hemenway, which should havebeto
surrendered to him as his assignee. The defendants claim-
ed them as the proper goods of Gale, in the possession of
Hemenway as his agent The defendants pleaded separate-
ly the general issue, and the jury returned a verdict for the
plaintiff for $5,030 45.

The defendants filed a motion for setting aside the verdict
and for a new trial

The case was -argued by Daveis and Rowe^ for the defend-
ants, in support of the motion, and by Debbris and McCriUiSy
for the plaintiff, against it.

Ware, District Judge.

The first question raised by the defendants' counsel is one
as to the jurisdiction of the Court. It is denied that this >
Court has jurisdiction over the case, al lealst as to one of the de-
fendants, Hemenway, and that if any acticmcanbe maintain-
ed against him, this can be only in the District Court The
6th section of the bankrupt law gives to the District Court
jurisdiction over all matters and proceedings in bankruptcy
in the most comprehensive terms, and this jurisdiction is de-
clared to extend to all cases and controversies arising be-
tween the banknipt and any creditor or creditors claiming
any debt or demand under the bankruptcy, to all cases be-
tween such creditor or creditors and the assignee of the estate,
and to all cases between such assignee and the bankrupt.
By the 8th section, concurrent jurisdiction is given to the
Circuit Court, with the District Court, of all suits at law
and in Equity, which may or shall be brought by any as-
signee of the bankrupt against any person or persons claim-
ing an adverse interest, or by such person or persons against

330 CIRCUIT COUKT,

Cur, AMMgiu4^ 9. Gmle H ml.

the assignee, touching any property or rights of property of
said bankrupt transferable to, or vested in, the assignee. The
jurisdiction of the Court is then free from doubt as to Gale,
as he appears claiming an adverse interest. But in carving
out a portion of the jurisdiction of the District Court to be
exercised by the Circuit concurrently with the District Court,
the act omits controversies between the assignee and the
bankrupt, and it is therefore said that Hemeaway is not
bound to answer in this Court

It may be admitted that the Circuit Court has no jurisdic-
tion over controversies between the assignee and the bank-
rupt, arising out of his quality or status as a bankrupt, and
dependent on that For instance, by the 3d section of the
law, all the property and rights of property of the bankrupt
are, by virtue of the decree of bankruptcy, declared to be, by
mere operation of law, transferred to and vested in the as-
trlgnee, subject to certain exceptions. The proviso enumer-
ates these exceptions. They are — the wearing apparel of the
bankrupt and his family, and such household furniture and
other necessary articles as shall be set apart for his use by the
assignee subject to the decision of the Court. These do not
pass to the assignee. A question may arise whether a watch,
or articles of personal ornament, for himself, or his wife, or chil-
dren, fall within the exceptions, as wearing apparel, or other
necessary articles. In the mcUtsr of Grant, 5 Law Rep. 11.
This would be a matter arising out of the bankruptcy, and
involving his rights as a bankrupt under the bankruptcy, and
if a controversy arose on the subject, would seem to be exclu-
sively within the jurisdiction of the District Court. Again,
a bankrupt may acquire property after he has filed his peti-
tion, and before a decree of bankruptcy, or before his dis-
charge, by his own industry, or by contract, inheritance, de-
vise, or gift. And a question will arise between the bank-
rupt and his assignee, whether this passes to the assignee as
part of the assets of the bankruptcy, or is an acquisition fi>r
the benefit of the bankrupt himself. The solution of this
question involves the consideration of his rights and immu-

MAINE, 1847. 391

Cvr, JsngnM^ «. Gale 6< oi.

Dities as a bankrupt In Re WUiiamSy 5 Law Reporter^ 165.
The clause in the 6th section of the law, giving jurisdiction
to the District Court over cases and controversies between
the assignee and the bankrupt, naturally refera to caaes
of this description, involving the consideration of his per-
sonal siattis and the rights which he may claim in his
quality as a bankrupt ; and as no similar language is used in
the 8lh section, it may be that the jurisdiction over this class
of cases is exclusive.

But in the present suit, Hemenway sets up no claim as a
bankrupt ; he insists on no right in relation to this property
derived from his bankruptcy, or any way connected with it
The goods which he is charged with converting are indeed
claimed by his assignee as part of his assets, but he makes
no claim to them as such. His defence is that the goods
were never his, but belonged to Gale, and were in his posses-
sion as the agent of Gale ; and the suit is not against him as
a bankrupt, but simply as a wrong doer. I cannot see that
he is any more exempted from the jurisdiction of this Court
than he would be if the property^ the conversion of which he
is charged with, had belonged to another estate. In this
case he is simply a person claiming an interest adverse to the
assignee.

Another ground, on which a new trial is demanded, is that
the plaintiff has shown no title to claim the property, admit-
ting that the goods belonged to Hemenway before his bank-
ruptcy, and so constituted a part of his assets. The plain-^
tiff, to prove his title, offered in evidence the decree of bank-
ruptcy and his appointment as assignee, but this, it is said, is
insufficient without offering the petition also. The ground
of this olgection is, that the District Court, sitting in bank^
ruptcy , is a Court of limited and special jurisdiction, and thati
as each, no presumption can be made in favor of its jurisdio<>
tion, but that this must be made to appear affirmatively by
spceading before this Coqrt the whole proceedings; The de-
cisions under the English bankrupt law and those of (uur ova

332 CIRCUIT COURT,

Courts under the former bankrupt law, have been referred to
in support of this position. The former bankrupt law was
borrowed, with some alterations, from the English system,
(5 Mass. Rep. 249--60, Lummus vs. Fairfidd^) and was
widely different from the last law. It was far more compli-
cated in its details, and operose in its modes of proceeding.
Under the English system, it is necessary for the assignee to
prove— 1st, the commission,— 2d, the petitioningcreditor's debt,
— 3d, the trading,— 4th, the act of bankruptcy, — and 6th, the
assignment Eden on Bankruptcy^ 252. The 3d section of
the late act seems to have been framed with a view to su-
persede the necessity of proving such facts. It provides that
all the property and rights of property of the bankrupt,
who has been declared such by a decree of the properCourt,
shall, by mere operation of law, from the time of such decree,
be deemed to be divested out of such bankrupt and without
any conveyance shall, by force of the decree, be vested in such
assignee as the Court shall appoint It appears to me, from
the plain words of this section, that all which is necessary
for the assignee to shew in the first instance, is the decree
and his appointment under it It obviously was the intention
of the statute to simplify the proceedings and dispense with
the cumbrous machinery of the former law. The analogies
therefore, derived from the practice under that law, apply
with less force. That dispensed, in favor of the assignee,
with two of the requisites of the English law, that is, proof
of the trading and the act of bankruptcy, which were held
to be conclusively proved by the commission. U. 8. Laws,
1800, Ch. 19, § 56. The policy of the last act was to render
the proceedings still more simple, expeditious, and cheap.
The assets, instead of coming to the assignee through a con-
veyance by commissioners, passed directly, without any form
of conveyance, by operation of law. Under the voluntary
branch of our law, no one of the five things required to be
proved by the English law can be properly said to exist,
or at least no one is essential to the proceedings. No com-

MAINE, 1847. 3S3

Carr, JStngne*^ «. Gale M ol.

mission of bankruptcy is issued ; there is no pfHtitioning cred«
itor, and under the English law his petition need not be
proved ; no trading is necessary, and no act of bankruptcy
is required, and no assignment is made. The title deed of
the assignee is the decree, and it appears to me that the stat-
ute makes this prima facie evidence of the assignee's right to
the property. If this title may be impeached for any irregu-
larities in the antecedent proceedings,the burthen of impeach-
ing is thrown on the other party.

Another objection to the verdict is, that there was no evi-
dence sufficient to support the action, there having been no
proof of a demand of the goods and a refusal to deliver
them, before the action was brought. The action is trover,
an action of tort, but the tort consists not in the taking but
the conversion. If there was an unlawful taking, this was
waived by the form of the action, and the defendant
is admitted to have obtained the possession lawfully,
that is, by finding. A conversion must therefore be prov-
ed. If the defendant has done nothing with the goods
beyond what he might do as finder, this action cannot be
maintained until there has been a demand by the owner
and a refusal to deliver them. A refusal is then ordinarily
held to be equivalent to a conversion, because it ordinarily
amonnts to a denial of the owner's right But if the refusal
is justified, or excused, by any reasonable or just cause, as if
it be on a fair doubt whether the person who makes the de-
mand be the true owner, the refusal will not be equivalent to
a conversion, provided the party acts in good faith, and does
not intend to make any appropriation of the goods to the
injury of the real owner. Archbolds Nisi Prius, Vol 1
page 468. 2 Greenleaf^s Evid. $644r-6, and the cases
cited. A demand and refusal is only one mode of proving a
conversion. But a sale is a conversion, as much as an actual
consumption of the goods would be. FeaiheraUmhaugh vs.
Johnson^ 8 Taunt 237. A demand then would have been a
useless and unmeaning formality.

■*' l <

384 CIRCUIT COURT,

Another reason urged for a new trial is, that certain parts
of the evidence offered by the phiintiff were irrelevant and
improper to be submitted to the jury. This objection relates
principally to the deposition of Sylvester and the testimony
of Bryant To understand the bearing and applicability of
this evidence, it will be necessary to advert to some antece-
dent facts. In 1836 Hemenway failed in trade and transfer-
red a large amount of property, being his whole stock in
trade, to assignees, for the benefit of such of his creditors as
should become parties to the assignment and release him
from his debts. Some of his creditors refused to come in
under the assignment, so that, after the distribution of his es-
tate, there remained a considerable amount of outstanding
claims against him. Hemenway then left Bangor and was
absent a considerable time, and returned in 1838, when he
again went into business as the agent of Gale, his brother-in-
law, residing in Portland. While thus engaged in business,
one of his old creditors sued him and summoned Gale as his
trustee. Gale was discharged on his disclosure, a copy of
which was offered in evidence in this case by the plaintiff
The ground assumed by the plaintiff was, that all this time,
from 1838 to 1842, Hemenway was trading on his own capi-
tal, was in fact the owner of the goods, and that the title of
attorney of Gale was a mere cover, he having no interest in
the store. As proof of the good faith of the parties and that
the property was in fact Gale's, evidence was offered by the
defendants tending to show that Hemenway was poor and
utterly destitute of property. The testimony offered by the
plaintiff was to show that Hemenway had property of his
own, and to overcome the presumption of good faith arising
from his apparent poverty. Sylvester testified that he paid
Hemenway a bill after he made his assignment, and that
Hemenway stated to him that he had drawn off bills to the
amount of $4,000, and balanced the accounts in his books
before delivering them to his assignees, which were then due
and unpaid. Bryant testified that after the books came in-

MAINE, 1847. S36

Girr, jAiwfiiM/ •. Qmlm §ita.

to his bands, as one of the assignees, several persons called
on him a&d stated that they were indebted to the estate, bnt
that on turning to the ledger be found the accounts bal--
anced He also testified that after the kejrs of the store were
4eliTered to him a considerable amount of goods were ab-
stnicted from the store, and that Hemenway was concerned
in taking them away. From this evidence, the counsel for
the plaintiff argued that Hemenway had reserved to himself,
from the wreck of bis fortune in 1836, a considerable sum,
and that it was with this capital that he commenced business
in 1838. Connecting this with the disclosure of Gale, who
said that he had no interest in the store, and the further fact
that, though a large business vra% carried on under GaleV
name, he gave no attention to it, and never visited Bangor
from 1838 to 1842, the plaintiff's counsel contended that
this title of attorney was a mere blind to enable Hem-
enway, under Gale's name, to resume business for himself
and set his creditors at defiance. There was other evidence
besides this, from which the jury might infer that Hemenway
had an interest in the store beyond that of a mere agency.
If any credit was due to this evidence tending to show that
he had an interest in the goods, it could not be considered
immaterial to show that Hemenway had property of his
own. Whether he had or had not, was a fact to be inferred
altogether from circumstantial evidence. Now it is evident
that circumstances of this kind may be made to bear with
more or less force, according to their connection with other
facts admitted or proved in the case. How far they contrib-
uted to sustain the plaintiff 's case was a question for the
consideration of the jury. The question now is whether the
jury ought to be allowed to hear such evidence; that i9y
whether it had any tendency to prove the plaintiff's case.
The plaintiff's case stood on the charge of a fraudulent cov-
ering of Hemenway's property to screen it from his creditors*
Unless this was made put, he fisdled. It was therefore very
material to show that he had property to conceal. The evi-
dence in question went to prove this fact, by showing that he

336 CIRCUIT COURT,

Garr, A$9ignM^ «. G«le 6< •!.

had fraudulently abstracled a portion of his assets on the
occasion of a former failure in business; and that at a period
not so distant but that he might reasonably be supposed to
have retained a portion to recommence business in 1838. It
was not therefore evidence that went merely to create in
the minds of the jury a personal prejudice against him, but
to a certain extent tended to sustain a material point in the
plaintiff's case. It appears to me therefore that it was evi-
dence proper to be submitted to the jury. It is said that this
matter had before been submitted to arbitration, and it was
contended that it was not now open to be reexamined. Bat
that was between Hemenway and the parties to the assign-
ment The present plaintiff, and the creditors whom he rep-
resents, were no parties to that arbitration, and the decision of
the arbiter is not binding on them. It is true that fraud is
not to be presumed, but it is also true that it may be inferred
from circumstances, and often can be proved in no other way.
Another objection was made to a part of the testimony of
Bryant. In answer to a question of the plaintiff's counsel he
stated, that several persons called on him and said that they
were indebted to the store, but on turning to the books he
found the accounts balanced. The defendants objected to
this testimony without the production of the books. But
3ryant did not testify here to the contents of the books. He
was not asked who called on him, nor how many, nor what
was the amoimt of the accounts so balanced. The fact, to
which he testified, was not one which appeared in the books,
but was collateral to them. It was simply that persons call-
ed on him and stated that they were indebted to the store,
but when he looked into the books he found the accounts
balanced. The production of the books could neither confirm
nor disprove the statement of the witness. All that they
would have shown was, that there were some accounts which
were balanced and others which were not, but the material
fact, whether there were any persons who called on him as
he stated, was a fact known only to the witness himself

MAINE, 1847. 9S7

Cftrr, JiMBigtme^ «. Gal* «ecl.

There is however one fact stated by Bryant, which per-
haps, in strictness, was not admissible without the produc-
tion of the books. It is that when persons called on him
and said that they were indebted to the store he looked at
the ledger and found the account balanced, but that in exam-
ing the day-book he found no corresponding entries in that
No names of individuals were given and no sums mention-
ed, but the naked fact alone was stated. Now an inspec-
tion of the books might have verified or disproved the
&ct, and for this purpose perhaps they ought to have been
produced. But when the objection was made, this distinc-
tion was not noticed. The objection was general and in
my opinion covered too much, and so it was properly over-
ruled. The party objecting to the testimony of a witness,
part of whose testimony is admissible and part of which is
inadmissible, is bound to point out and discriminate the part
to which the objection applies. If however the discrimina-
tion is not made, and objectionable testimony is permitted to
go to the jury, the Court may undoubtedly in its discretion
grant a new trial for this cause. But it ought not to do it,
when the testimony is of such a character as probably
would not and ought not to have changed the verdict. And
such I think this testimony to have been in this case.

The defendants offered the schedule annexed to Hemen-
wajr's petition in bankruptcy, to prove the property in Gale.
This was objected to and ruled to be inadmissible. The de-
fendants contend that it ought to have been admitted. It
is generally true that, in an action by the assignee, the bank-
rupt is a competent witness to diminish but not to increase
the fund. Eden on Bankruptcy^ p, 361, 366. His interest
in the surplus is an obvious reason for excluding his testi-
mony when it goes to increase the fund, but when it goes
to diminish it, he is testifying against his own interest But
the evidence here offered was the mere declaration of the
bankrupt, under oath it is tnie, but still only his declaration,

888 CIRCUIT COURT,

Our, JU$igmB^ w* Chile €i dL

vritbont any opportunity of the present plaintiff to cross ex-
amine him. And here the bankrupt is a party and of course
he cannot give in evidence his own declaration in his own
favor. But it is said that it ought to have been admitted in
favor of Gale. To determine this, let us look at the posture
of the case. The plaintiff proceeds on the ground that there
was a fraudulent agreement between the parties to cover the
property of Hemenway and keep it from his creditors under
the name of Gale. And this evidence is nothing more than
the declaration of one of the parties to disprove the fraud.
It appears to me on this ground that it is inadmissible.

There was other testimony admitted which was objected
to, as irrelevant and as having a tendency to create a preju-
dice against the defendants. This related to the mode of
conducting the business in the store, and the contemporaneous
declaration of Hemenway after the sale by Gale to Hersey.
Hersey was a connection by marriage both of Hemenway
and Gale, they each having married a sister of his, and he
had for several months prior to the sale been employed
as a clerk in the store. This testimony tended to show that
Hemenway claimed and exercised the same control over the
business after the sale, when, if it had been in fact what it
purported to be, he was a mere clerk in the store, that he had
done when carrying on the business as the agent of Gale.
Now the question at issue between the parties was whether,
at the time of the sale to Hersey, the property was in Hemen-
way or Gale. The ground, on which the admission of this
testimony was claimed, was that if it satisfied the jury that
Hemenway had an interest, that is, was the owner of the
goods after the sale, it threw back its light and tended to il-
lustrate the antecedent state of things. Whether it was le-
gally admissible for that purpose is now the question. It
appeared to me that it was. In a case where fraud is charg-
ed, and the charge is to be made out by circumstantial evi-
dence, it is not easy to draw the precise line separating those

MAINE, 1847. 990

Qarr, A gMgne M ^ w. Chde ti tU,

circumstances which are fairly admissible to prove the fraud
from those which ought to be excluded. Evidence which
has no c(mnectioa with the matters in issue, but merely
tending to create a personal prejudice against one of the par*
ties, certainly should be excluded. But if it have a connec-
tion, how near that must be to render it admissible, or how
remote to exclude it, is not easy to determine by any uni*
versal and exact definition. The acts of the parties near the
time when the fraud is alleged to have been committed, and
cojunected with it, seem to be properly admissible. The evi-
dence in question was of this descripticm. The jury might
infer from it that Hersey, the apparent owner, was not the
real owner ; that though he was clothed with the ordina-
ry indicia of ownership, this was but a disguise to con-
ceal the real ownership of Hemenway. Now, as the great
question is whether the goods belonged to Hemenway before
the sale, if it be shown by probable evidence that they be-
longed to him after, and notwithstanding the sale, this is a
fact that would tend, connected with other circumstances, to
satisfy the mind that they were his before ; and that this sale
was but a continuation of that system of disguised owner-
ship which was alleged to exist from 1838 to the time of the
sale. It appeared to me at the trial that it was evidence
competent to be given and not wholly irrelevant, and how
far it tended to support the plaintiff's case was for the con-
sideration of the jury.

Another decision of the Court, to which exception is taken
involves rather a rule of practice than strictly of law. Her-
sey, the purchaser from Gale, was called as a witness by the
plaintiff to prove the bill of sale, and nothing further. The
defendants then claimed the right to cross examine him to
to the whole cause. This was objected to by the plaintiff*
It was ruled by the Court that the cross examination must
be confined to the subject matters inquired of in the direct
examination; that, if the defendants wanted him as a wit-

340 CIRCUIT COURT,

Carr, Jhtignt^ o. G«le et ml.

ness, they must call him after they had opened their case to
the jury, and examine him as their own witness. Subse-
quently he was called by the defendants and examined. The
practice of Courts in this respect is not uniform. The role
in the English Courts is, that ijf a witness is called and sworoi
though he is asked but a single question, the other party has
a right to cross examine him to the whole case as a witness
of the adverse party. 1 Crreenleaf's Evidence^ § 445. And
the same practice prevails in some of the Courts in this coun-
try. In this Court the rule has been different It hashes
repeatedly laid down by the late Justice Story, in the terms
in which the Court ruled in the present case, and by the de-
cision in The Philadelphia and Trenian Rail Road Co. vs.
SUmpsoTij 14 Peters^ 448, it is established as a rule of practice
in the Courts of the United States.

After the evidence was closed, and the arguments of coun-
sel, the counsel for the defendants asked the Court to instruct ,
the jury that the plaintiff could not maintain the action be-
cause there was no evidence of a conversion by either of the
defendants. The Court declined to give that instruction, but
instructed the jury that if they were satisfied from the evi-
dence that in 1838, when the letter of attorney was given by
Gale to Hemenway, it was given for the purpose of en-
abling Hemenway to do business on his own capital and
for his own benefit, and was so used, the property being
in fact and in truth in Hemenway, then, by force of the stat-
ute, the property became vested in the assignee of Hemen-
way, and that the sale by Gale under color of this disguised
title was evidence of a conversion by Gale. And secondly,
that if the sale was made by an arrangement and contriv-
ance, between Hemenway and Gale, to place the property
still further beyond the reach of the assignee, it was evi-
dence of a conversion both by Gale and Hemenway. Un-
der these instructions the jury found a verdict for the
plaintiff.

* MAINE, 1847. « 341

Carr, Jisngne^^ v, Gmle tt ml.

It is quite certain that the Court could not give the direc-
tion asked by the defendants, because, if the jury found that
the property was in Hemenway, the sale was a conversion.
To maintain the action of trover, the plaintiff must prove
property and the right of possession. It is not neces-'
sary to prove that he has had the actual possession and that
it has been disturbed by the defendant An executor, who
has never had the possession of the goods, may maintain
(Tover for a previous conversion of the goods of his testator.
2 Greenleaf's Evidence, ^ 461.

The last ground, on which the defendants asked for a
new trial, is that the verdict is against the weight of evi-
dence. There was evidence on both sides, and it was the
province of the jury to determine on which side the balance
inclined. By the theory of the common law, they are th^
exclusive judges of the weight of evidence. But it is also
true when the Court is satisfied that the jury, from any cause,
4 have fallen into an error and decided against the clear pre-
ponderance of the evidence, the verdict will be set aside and
the case sent to another jury. If however there is contra-
dictory evidence, and the conclusion is dependent on the de-
greeof credit given to the witnesses, or if the facts proved, or
admitted, are such that different conclusions may be infer*
red from them, the Court will not disturb the verdict, unless
the jury have decided against the clear preponderance of the
evidence. In this case there was but little if any conflict in
the testimony, that is the facts, proved by the testimony on
one side, were not impugned by contradictory testimony on
the other so as to bring them into doubt The conflict was
in the facts themselves. There is one series of facts proved
by the defendants which, standing alone, lead directly, if not
irresistibly, to one conclusion, but there is another series, part
of which are equally well proved and which, if not controll-
ed by any facts tending to a different conclusion, would lead
directly to tfie opposite decision. When the verdict is to be
deduced from opposite and conflicting analogies, it belongs

342 . CIRCUIT couet;

Gait, Jhtignds^ «. Q§im U «l.

.1 ■ I .1 I I

exclasively to the jury to determine the force and valne of
diese analogies. All that the Court can do is to assist their
judgment, by general observations on the natnie of the evi-
dence. It is not pretended that there were any such re«
marks in this case as had a tendency to preSccupy the
minds of the jury by any notions adyerse to the defendants.
It would seem that they were rather of an opposite tenden-
cy, for one of the reasons urged for a new trial is that
the verdict is against the opinion of the Court Bnt Ae
Court has no authority to substitute its own judgment for
that of the jury, when they have ddiberatdy considered
and decided the case. It is only when they have, firom
wantonness, or caprice, or negligence and inattention, ren-
dered a verdict palpably erroneous, that the Court will inter-
fere. And the Court will sometimes infer this want of due
attention on the part of the jury, when the verdict is clearly
against the weight of evidence. But to do this^ when the
evidence is nearly balanced, would be an encroachment on .
the proper province of the jury. On the whole my opinion
is that judgment should be entered on the verdict

iVei^ trial refiuei.

MAINE, 1847. S4S

The FbIo Alto.

THE PALO ALTO.

A runinkni of a forfeiture bj the Secretaiy of the Traaauiy, ht^W the
«et of Mareh 3, 1797, ch. 13, granted before a libd or inforiBatiOBL hat
been filed, operates direcdy to revest the right of proper^ and piMOpi
aion in the petidoner, and the collector, on his preaendng the wamnt
of reminion, is bound to restore it

But, after the filing of a libel or infiMrmatiop, the properQr » in the eoslo-
4j of the law, and the coUector is the keeper of the Court The re-
mittitur, bemg filed in Court, is a bar to fiirther proceedings to en-
fhree the fixrfeiture, and the Court will direct the suit to be dismissed
and issue a precept to restore the prc^erty. But the proper^ being
in the custody of the Court, the collector canHot restore the possession
without an order of the Court

U this remisHon is <m the payment of costs, this is a conditkn preoe-
dent, and the remission is inoperative until the costs are paid.

A lander of the costs, after a reasoiwble time allowed fx taxing them,
is equivalent to actual payment, to revest the ri^t of property and pos-
session. A neglect of the collector, seasonaUy to fiimish the attorney
ndih the cost of seizure and custody, will not defeat or suspend th^
right of the claimant to the possession of the pro p e rty*

The Secretsry has the power, after a remittitur has been granted and
com muni cated to the claimant, to revoke the warrant

U the remiswon iafrm and imeow d ilipiurf, the power of revoeatkni oon-
tinuea after die remittitur is filed and an cider of resmataoo passed,
and until the precept is finally executed by a deUvery of the proper^
into the possession of the claimant.

Tbe order of restontioo, made by the Court, is not properly a judicial
Irat a ministerial act It is the remission of the Secretary that restores
the right of property and possession, and the order of the Court, car-
rying that into effect, may be demanded l^ the daimant ex ddnk

If the remission be conditional, the Secretary has no power to revoke it
after thecon<iUtion has been perfbrmed, whedier the possession of the
goods has been delivered to the claimant or not

After the rojWiiflhn has been made known to the claimant if the Secre-
tary revokes it, die revocation is inoperative untU the knowledge of h
» brought home to the claimant ; and If the eondilioii has bees p««-

344 DISTRICT COURT,

The Falo Alto.

^ formed before he has knowledge of the revocation, the rigfata of the
claimant become fixed, and the remiiaion is irrevocable.

In all engagements formed inUr absenUt by letters or measengerB, an
Hoilfer by one party is made, in law, at the time when it is received by
the other. Before it is received it may be revoked. So the revoca-
tion, in law, is made when that is received, and has no legal existence
before. If the party, to whom the oflfer is made, accepts and acts
on the ofler, the engagement will be binding on both parties, though
before it is accepted another letter or messenger may have been des-
patched to revoke it

The exception to this rule, established by the jurisprudence of the
Courts, is, that if the party making the ofifer dies or becomes insane be>
fore it is received and accepted, the ofler is then a nullity, though ac-
cepted before his death is known.

October^ 1847. The manner in which this case came before
tfie Court will appear by a recapitulation of the antecedent
facts. The Palo Alto, a small vessel of 20^} tons burthen,
built and licensed for the fisheries, was seized July 15, 1847,
by the Collector of Wiscasset, and libelled for being engaged,
while under a fishing license, in a trade other than that for
which she was licensed, in violation of the act of February
18, 1792, ch. 8, $ 32, for Licensing and Enrolling Vessels, 1
Statutes at Large^ p. 305. On the 21st of July, a claim was
interposed by C. F. Barnes, and on the 23d he filed a peti-
tion confessing and praying for a remission of the forfeiture.
On this petition, a summary inquiry was had into the cir-
cumstances of the case, according to the provision of the
act of March 3, 1797, ch. 13, ^1. 1 Statutes at Large^ p.
506. A number of witnesses were examined and the fol-
lowing statement of facts made out and transmitted to the
Secretary of the Treasury, together with a copy of the libel
and the petition :

'' Special District Courts Portland, )

Sept 11, 1847. \

'^ And now on a summary examination intq.^tbp. facts of

of the case (notice having been given to the attorney of the

United States and the collector who made the seizure,) it has

MAINE, 1847. 346

The Palo Alto.

been proved to my satisfaction that the said Barnes purchas-
ed said schooner Palo Alto, June 4th, 1847, of about 20
tons burthen, built and intended for a fishing vessel ; that
his intention was to sell her again, but that he made a con-
ditional agreement to let her for the fishing business if he did
not succeed in effecting a sale; that in the early part of July
he went in her to Portland, for the purpose of making a sale:
that he advertised her for sale and made attempts to sell her.
but failing in making a sale, he purchased the goods named
in the bill of parcels (which was annexed to the petition,) at
Portland, and returned with them to Wiscasset. Most of the
goods purchased are such as are used in fitting out fisher-
men, but the quantity was much greater than would be re-
quired for fitting out a single vessel of her size. He return-
ed in the vessel to Wiscasset, and arrived at a wharf near
tlie custom house, between 11 and 12 o'clock in the forenoon,
making no attempt to conceal what cargo he had on board
from the custom house officers. The goods which he carri-
ed all belonged to himself, and he had none for other persons.
It was in proof that the collector told him when he sailed
for Portland, that he could not take goods under a fishing
license. Barnes is by trade a sail-maker, and has heretofore
been interested in two vessels which were engaged in coast-
ing. He has also bought and sold small fishing vessels and
pleasure boats. It was in proof that fishermen which came
to Portland were in the habit of taking their outfits there.''
On the 13th of September the Secretary remitted the for*
feiture, on condition of the payment of costs,'and the warrant
of remission was transmitted to the attorney on the 20th.
This having been filed in Court, on the 30th an order was
made for the restoration of the property to the claimant, and
a precept issued to the marshal to carry it into execution.
The deputy marshal, in his return on the back of the precept,
stated, that he called, on the 5th of October, and demanded of
the deputy collector the property, but, the collector being ab-
sent, he refused to deliver it, and on the 8th he called on the

346 DISTRICT COURT,

The Palo Alto.

collector at the custom house, and again demanded the
property, and he refused to deliver it ; and he returned the
writ in no part satisfied.

Upon the 29th of September the Secretary wrote to the at-
torney, requesting him to return the warrant of remission*
The attorney in reply informed him that it having been filed
in Court and become a part of the record, it was not in his
power to return it. And on the 4th of October, the Secretary
again wrote to the attorney, stating that he had requested
the warrant to be returned " for the purpose of revoking it,
as on a full examination of the case, relief ought not to be
granted to Mr. Barnes.'' On the 7th of October the attor-
ney filed a motion for an order to the marshal to stay the
execution of the writ of restoration and to return it unexe-
cuted. The Circuit Court being then in session and remain-
ing so until the last of the month, the parties were heard on
the motion on the 4th of November.

liaineSj District Attorney, for the United States; ^. Fes-
senden, for the claimant.

Ware, District Judge,

The questions now to be determined arise on a motion of
the District Attorney for a supersedeas of the writ of restora-
tion issued by this Court. But as that has been returned un-
executed since the motion was filed, in the actual posture of
the case the questions would arise more regularly on a motion
of the claimant for an alias execution. But as the parties
are disposed to waive matters of form, and wish for an ear-
ly decision, we may perhaps dispose of the questions which
have been discussed, on the attorney's motion.

It is argued by the attorney in the first place, that the
writ was improvidently issued, there being no authority in
law for issuing such a writ in any case ; and in the second
place, if there is any authority, that the remission being

MAINE, 1847. 347

The Palo Alto.

made on the precedent condition of payment of costs, and
the costs not having been yet paid, the writ was issued pre-*
maturely.

The argument on the first point is, that the remission of
the Secretary operates per se and independently of any action
of the Court to retransfer and revest the property in the pe-
titioner. The act of March 3, 1797, ch. 13, $1, (1 Stat, at
Large, 506,) under which the remission is made, provides
that when any person shall have incurred any penalty or
forfeiture, or is interested in any vessel or goods, which have
by law become liable to seizure and forfeiture in the cases
therein mentioned, on certain proceedings being first had on
petition to the judge of the district, in which the penalty of
forfeiture accrued, they may be remitted by the Secretary
of the Treasury, if in his opinion it was incurred with-
out willful negligence or any intention of fraud; and be
may direct the prosecution, if any has been instituted, to
cease on such terms as he shall deem reasonable. In the
case of a seizure of goods, if no prosecution has been Com-
menced, it may be true that the warrant of remission ope-
rates directly to restore to the claimant his right of property
and possession of the goods, and on the presentment of the
warrant, the collector may be bound to restore them. If a
suit has been commenced the remission may be pleaded in
bar of a further prosecution of it If it be for the recovery
of a penalty, its operation is to discharge the obligation by
putting an end to the suit and by being a bar to any future
suit.. No further action of the Court is required than dis-
missing the action. But if the prosecution be for the purpose
of enforcing a forfeiture in rem, the property libelled is placed
in the custody of the Court It is in the keeping of the law.
The warrant of remission does not then give the claimant a
direct authority to retake the goods, but on filing the remit-
titur and complying with its terms, the Court will direct a
precept to be issued for the restoration of the property, and

348 DISTRICT COURT,

The Palo Alto.

order the suit to be dismissed. Such has always been the
practice in this and, it is believed, in other districts. The stat-
ute does not indeed in such cases direct a writ of restoration,
but it is necessary to the orderly course of judicial proceed-
ings, so that the record may show what disposition is made
of the property.

But It is said that in this case the remission is conditional
on payment of costs, and that this being a condition prece-
dent, the remission is inoperative until the costs are paid.
This as a general proposition is undoubtedly true. A prece-
dent condition must generally be performed before the right
vests, or that must be done which the law holds to be equiv-
alent to performance. After the remittitur in this case was
received and filed, the claimant was present in Court and
tendered the costs to the attorney. He declined to receive
them, because the collector not having furnished him with
the items of the costs of seizure and custody, he was unable
to Complete the taxation. It was not, therefore, the fault of
the claimant that the costs we1:e not paid, but that of the
collector in not seasonably presenting his bill of charges.
Now it is a general rule of law that a condition, on the per-
formance of which a right vests, shall be considered as per-
formed, so as to perfect the right, where the party, for whose
benefit the condition is made, has by his own act or fault
prevented it from being performed. The Roman juriscon-
sults put this doctrine into a formula, and it is inserted in the
digest among the general rules of law as a universal rule. In
omnibus causis pio facto accipilur id in quo per alium mora
Jit quo mintis fiat. Dig. 50, 17, 39. Tunc demum,pro im-
pleta habetur conditio cum per eum slat, qtii, si impleta esset,
debUurus erat. Dig. 35, 1, 81, § 5.*

* The following are some of the texts of the Roman law in which this
general rule is applied in contracts, legacies and other cases. Dig. 35, 1,
24 and 12. Dig. 12, 1,50. Dig. 19,2,3d. Dig. 22, 7, 20 and 23. Dig. 45,
1,25, §7. Dig.50, 17, 161.

MAINE. 1847. 349

The Palo Alto.

This rule is equally well established in the common law.
It was the very point on which the decision turned in
Hotham vs. The East India Co., 1 Durn. 4* East, 639.
Ashurst, J., in delivering the opinion of the Court said, that
if any authority was necessary for this principle, which was
a plain dictate of common sense, it was so held in Rollers
Abridgement, 445, and in many other books. The same doc-
trine is held in Jones vs. Barkley, Doug. 684 ; Merrit vs.
Rane, Strange, 458 ; Blackwell vs. Nash, Strange, 535 ;
Kingston vs. Preston, Doug. 689 ; 3 Salk. 108. It was al-
so the point directly decided in Brawn vs. BeHows, 4 Pick.
179, 195. Indeed it is one of those obvious rules of justice
and right, that finds a place in every system of jurisprudence
that makes any pretension to cultivation and reiinement,and
flows directly from a great principle of natural equity and
universal justice, which binds every one to answer for the
damage occasioned by his own act. Pothier, Oblig. No. 212;
6 TouUier, Droit Civil, No. 609. A condition, says the
French Code Civil, is considered as performed when it is
the debtor, bound under this condition, who has prevented it
from being performed. Art. 1178.

It is a familiar principle of law that a tender of perform-
ance, at a fit and convenient time and place, is for many pur-
poses equivalent to a performance. A tender of money due
on a bond or other contract, it is true, does not, like payment,
discharge the debt, for the plaintiff may reply a subsequent
demand and refusal, but it is a bar to further damages. And
it is universally true, that when a right or title is made de-
pendent on a precedent condition, and the party is ready and
offers to perform it, and is prevented by the default of the
party for whose benefit it is reserved, the title vests absolute-
ly and the condition is so far discharged that the right can-
not be defeated. In this case the collector might undoubt-
edly claim a reasonable time to make out his bill of charges.
The remittitur was dated September 18th, and transmitted to

360 DISTRICT COURT,

The Palo Alto.

the attorney on the 20th, and the collector was immediately
informed of it. Between that and the 30th there was, it
would seem, ample time for him to ascertain and make out his
bill of charges, and upon the payment, and, in my opinion,
on the tender of payment, the claimant was entitled stricHs-
Mmojure to an order of restoration. On this state of the case
the Court ordered, on his depositing in the registry $1^0, a
sum believed to be more than sufficient to cover all costs
that would have accrued, that the usual precept for the res-
toration of the goods should be issued, and the deposit hav-
ing been made, a precept was accordingly issued to the mar-
shal to restore them to the claimant He had already been
kept out of the possession of the vessel and cargo for two
months and a half, and it appeared to me that he ought not
longer to be deprived of them, with a further accumulation
of expense. My opinion is, that the order of restoration
was properly made at the time and ought not further to
have been delayed.

But the bill of charges is now presented, amounting to
^11 60, and therefore, exclusive of the fees usually taxable
on a libel, considerably more than the whole deposit ; and it
is now said to be apparent that the deposit does not cover
the costs, and thus that they cannot be considered as paid.
If the collector's charges are allowed, they certainly will ex-
ceed the deposit But without intending to intimate any
conclusive opinion, before the parties are heard in the taxa-
tion of costs, I will only suggest that some of the charges ap-
pear at the lirst blush to be of a novel and somewhat extra-
ordinary character. There is a charge of twenty dollars for
a journey to Portland of the deputy collector, to consult the
attorney on the filing of a libel, and another twenty dollars
for his own attention to the case. When we come to a hear-
ing on the taxation of costs, I may have occasion to ask the
collector in what part of the fee bill established by law, or in
what usage of the Court, he finds an authority for taxing

MAINE, 1847. 351

The Palo Alto.

these items in a revenue seizure as a personal charge on the
claimant In some cases of expensive, perplexed and pro-
tracted litigation, where the collector has incurred extraor-
dinary expenses, and been at unusual trouble in procuring
evidence to establish a forfeiture, he has been allowed by the
Secretary of the Treasury, on a certiGcate of the judge, to
charge these against the United States' share of the fund ;
but 1 am not aware that it was ever thought that such ex-
penses would be introduced into the bill of costs as a person-
al charge on the claimant. Without adverting to other items
particularly, some of which appear of unusual amount, con-
sidering the nature of the case, I will only observe, that the
deposit is more than sufficient to meet all costs that are usu-
ly allowed in such cases. But if it were not, an execu-
tion may be issued on his stipulation, for the balance. But
the ground of my opinion is, that the tender was, under the
circumstances, equivalent to payment for the purpose of
vesting in him a right to the possession of the property.

The principal question that arises on the motion, and that
which has been mainly discussed at the argument, remains
to be considered, and that is, the effect of the revocation, by
the Secretary, of the remittitur. But it ought first to be ob-
served, that there is no actual revocation before the Court
The letter of the Secretary of October 4, states that he had
ordered the warrant of remission to be returned, /or the pur-
pose of revoking it. That however having been filed, an
order of Court passed upon it, and having become part of
the record, there ought to be a regular and formal revocation
placed on the files of the Court But the letter of the Secre-
tary is only a communication to the District Attorney, ex-
pressing an intention to revoke, and not actually revoking
and annulling the forinal warrant of remission. That inten-
tion however having been expressed, for the purpose of rais-
ing the question, which has been elaborately argued, we may
suppose the warrant of revocation to be made and entered
on the files of the Court

362 DISTRICT CX)URT,

The Palo Alto.

On the part of the claimant it is argued that the Secretary
having once remitted the forfeiture and promulgated the
warrant, and an order of Court having passed thereon for the
restoration of the property, this is a judgment of the Court,
and that the remission has thereby passed in retn judicatam
and become irrevocable, and the rights of the claimant have
become so vested that they cannot be divested by the act
of the Secretary. '

In the first place, I think it may well \ye doubted, whether
the act of the Court, granting an order of restitution, is in
strictness a judicial act. The power of remitting penalties
and forfeitures, belongs exclusively to the Secretary. The
Court has no authority to revise his decision or inquire into
the grounds on which it is made. If a remission is granted,
which on its face appears clearly to be illegal and beyond
his power, it has indeed been suggested that the Court may
disregard it as having been improvidently issued by mistake.
I Gall. R. 521. But if nothing of that kind appears, all the
Court has to do, is to carry it into execution by an order of
restoration. In the preliminary steps for procuring a remis-
sion, the Court, in the first instance, inquires summarily into
the facts and circumstances of the case, and reports them to
the Secretary. It reports facts and not the evidence of facts'
In making this statement the judge acts judicially. The
facts must be proved by legal and competent evidence, and
of the competency of the evidence he must judge. 2 GaJL
R. 515, The Margaretta, The evidence must not only be
competent and conduce to prove the facts stated, but must
satisfy the judicial conscience of the judge that they are true.
But whether, when proved, they are sufficient to establish
the further fact that the forfeiture was incurred without will-
ful negligence or intention of fraud, is referred exclusively to
the judgment of the Secretary of the Treasury. It does
not belong to the judge to express an opinion on this point.
The Secretary forms his opinion on the facts stated alone, and,

MAINE, 1847. 363

The Palo Alto.

under the la\^, no evidence can be submitted to him by either
or both parties, as it is not on the evidence, but on the facts
found and stated, that he is to act. If either party is not sat-
isfied with them as stated by the judge, I by no means intend
to deny that he may properly express his dissatisfaction to
the Secretary, but then the Secretary cannot legally act on
his representation, or on evidence produced by him in mak-
ing up his judgment, whether the forfeiture was or was not
incurred through excusable ignorance and without fraudu-
lent intention. But he might in his discretion return the
statement of facts to the judge for further inquiry and 'for
hearing further evidence, and on such re-examination the
facts may be re-stated or the statement be amended. It will
then be on such re-statement that the Secretary will act, and
not on the evidence of facts. But the power of remission is
confined exclusively to his discretion, and when he has deci-
ded, the Court has no judgment to exercise on the subject, but
is bound ex debiio justUice to issue the order of restoration.
The act of the Court, therefore, in making this order is more
in the nature of a ministerial than of a judicial act. for it is
simply to carry into effect the remission.

That the Secretary has a right to revise his decision after
it has been made and made known to the parties, it seems to
me, cannot well be questioned. If, in making up his judg-
ment, he is supposed to act judicially, then, in analogy to
the practice of other Courts, it would seem that he must have
the power, if bethinks injustice has been done, to review and
revise his judgment. Every Court has that power.. If a de-
cision once made and promulgated is irrevocable, it must be
equally so^ whether the decision is to remit or not to remit
Yet, it would scarcely be contended, that when once the
Secretary had determined not to remit, and his decision had
become matter of record by being placed on the files of the
Court, he could not revoke that determination for the
purpose of admitting the proof of further facts. Still there

364 DISTRICT COURT,

The Palo Alto.

must be some time when his power over his decision most
cease. The question is, what that time is. If the order of
restoration, awarded by the Court, was strictly a judicial and
not a ministerial act, I should admit the conclusion of the
claimant's counsel, that the Secretary could not by his act
annul a judgment of the Court. But how far that would
beneficially relieve the claimant, is by no means certain. For«
if it is a judgment of the Court, it is a judgment grounded
upon a single fact, and if. the Secretary should certify
that the warrant of remission was improvidently isstied, it
would be the duty of the Court to stay its proceedings, and,
if a writ of restoration had been awarded and not executed,
to issue a supersedeas, till he could have time to re-examine
the case, and, if on such re-examination he should deter-
mine not to remit, to reverse its judgment. Such it seems
to me would be clearly its duty, because it would then be
apparent that the only foundation, on which it rested, failed.
If so, it is not very material whether the order of restor-
ation, on which the writ issues, be a judicial or ministerial
act. Jones vs. Shore, 1 Wheat, 462. The question would
again return, When the power of the Secretary, over his de-
termination, is at an end ?

We come then to the question, When does the remission
become irrevocable? The argument of the District Attorney
is, that it does not become irrevocable until the goods are ac-
tually restored to the possession of the claimant. In support
of this position, he cited the case of the U. S, vs. Morris, 10
Wheat 246. The question in that case arose on a remission
after a decree of condemnation. The power to remit, after a
final condemnation, was contested. The same question had
occurred in the Circuit Courts, and had been differently de-
cided in different circuits. In this it had been held that the
rights of the parties became fixed by the decree, and par-
ticularly that the title of the seizing officers to their shares
in the forfeiture, became consummated and perfect beyond

MAINE, 1847. 355

The Ptio Alto.

the Secretary's power of remission. The Brig HoUen, 1 Mci-
son, 431. The Margaretta, 2 Gall. 615. A contrary doc-
trine had prevailed in other circuits. 10 Wheat. 296. The
case was very elaborately argued by eminent counsel, and
was fully considered by the Court. It was decided that the
rights of the officers were inchoate by the seizure, but that
they remained imperfect and contingent during the whole
procedings in Court and after a final decree of condemnation,
and did not become consummated and indefeasible, until the
money was actually paid over to the collector for distribu-
tion. Until the actual delivery over of the property, or its
proceeds, under the decree, the rights of the officers, and, it
would seem to follow, the rights of ail otiiers claiming an
interest in the property or fund in litigation, whether legal,
equitable or precarious, like that of a petitioner confessing a
forfeiture, were held to be dependent on the will of the Sec-
retary, under his power to grant or refuse a remission. The
decision appears to me to be placed on the broad ground
that all rights to the fund are subordinate to the Secretary's
power to remit or not to remit, until the process of law is
finally closed by putting the party entitled into actual pos-
session of the fund. The Supreme Court having establish-
ed this principle, it appears to me to govern the present case,
and after some reflection, that opinion was intimated to the
parties. If the remission had been a free and unconditional
remission, I still think that the decision in the case cited
must have governed this «• and that the Secretary might re-
voke a warrant of remission, at any time before the precept
of a Court carrying it into effect was finally executed by the
delivery of the goods to the claimant. Perhaps, independent-
ly of that decision, we might be brought to the same result
from a more general principle of law. The forfeiture being
confessed, and therefore the title of those claiming under it
admitted, the remission, by which the property is restored to
the claimant, partakes of the nature of a gift or donation, and

366 DISTRICT COURT,

The Palo Alto.

being without consideration, it is in its own nature revocable
at any time before the actual delivery of the thing. A do-
nation after it is delivered, and not before, in the common
law, takes the nature of a grant or contract executed, and
becomes irrevocable. 2 Black. Com. 440, 1 ; 2 Kent Com.
438, 40 ; 2 Strange, 955, Smith vs. Smith ; 6 Cranch, 87,
Fletcher vs. Peck.

But, however this may be, there is a circumstance that
distinguishes this case, and takes it out of the principle of
the decision of the Supreme Court, and also extracts it from
the more general principle of law, by which gifts are revo-
cable until they are executed by' delivery. It is this, that
the warrant of the Secretary is not a free and unqualified
condonation or remission, but is coupled with a condition
precedent to be performed by the grantee. Now it is an un-
questioned rule of law, that if a grant is made on a condi-
tion precedent, no title vests until the condition is performed,
so that if the condition be illegal or impossible, thef title nev-
er vests. 2 Black. 157, Co, Litt. 206. But being legal and
possible, when it is once performed it vests absolutely, and
the title becomes pure and perfect and discharged of the con-
dition. 2 Cruise Real Property, 41. Com. Dig. Condition
B, 3. It then vests as a purchase, and, if the condition be
an onerous one, as a purchase for a valuable consideration.
It has already been stated that the tender under the circum-
stances was equivalent to a performance, not for discharging
the obligation to pay the costs, but for perfecting the title and
rendering it indefeasible. It became thus a contract perfect
by the mutual consent and concurrent acts of both parties,
and cannot be dissolved but by the concurrence of both.

There is however another fact in the case to which it is
proper to advert before closing this opinion. The tender of
performance was made on the 3Dth of September, and the
letter of the Secretary to the attorney, requesting him to
return the warrant, bears date the 29th, the day before. If

MAINE. 1847. 367

The Palo Alto.

this letter is to be considered as an actual revocation of the
remittitur, it may be said that it was revoked before the con-
dition was performed. Considering it as such, when does
the act of revocation take effect so as to annul the remission.
This raises a question of no small difficulty, on which there
has been no small diversity of opinion. The conclusion to
which I have come, after considerable reflection and consult-
ing all the authorities within my reach, is this, that the rev-
ocation has its effect to annul the remission at the time when
it becomes known to the other party, and not before. To
borrow a convenient phrase, more familiar in other systems
of jurisprudence than in ours, if things had remained entire,
until the revocation had been brought home to the knowl-
edge of the claimant, that is, if nothing had been done on
the part of the claimant to change the relation and condition
of the parties in respect to this matter, the revocation would
have annulled the warrant of remission, and the parties
would have stood as though none had been issued. But the
remission having been received and accepted by him, and
the condition performed as far as it could be without the
concurrence of the other party, the revocation then came
too late. The remission had taken effect and become ir-
revocable.

My opinion proceeds on this general principle, that in all
engagements inter absentes^ when the negotiations are car-
ried on by letters or messengers, an offer by one party, until
it is made known to the other, is but an intention not ex-
pressed, proposUum in mente retenium. If the messenger or
letter can be overtaken before it arrives at its destination, it
may be revoked ; but if the revocation does not arrive until
after the offer is received and accepted, and especially not un-
til it has been acted upon, then it is too late. For the revo-
cation is but a simple act of the will, a propoaitum, not res
gesia, an act done, until after it is known, and of course can
have no more effect than an intention not expressed, but con-
fined within the breast of the party. It is a remark of one

358 DISTRICT COURT,

The Palo Alto.

of the most profound jurists of the last age, that an act of
the will not known is, in jurisprudence, as if it did not exist.
Une vobmti qui n!est pets cannue est en jiurisprudence camme
si elle n' existait pus. 6 Toidl. Droit CivUj No. 29.

This is the conclusion to which my mind has been brought
after the most careful consideration I have been able to give
to the subject; so that if the letter of September 29th be con-
sidered as a revocation, it must only be considered as such
when the knowledge of it was brought home to the claimant,
and this was after the condition was performed.

At the same time it is freely admitted that this is a ques-
tion of general jurisprudence, of no little intricacy, and that
jt is not easy to determine by any universal and inflexible
rule when engagements entered into by letters or messengers,
between persons residing at a distance from each other, be-
come irrevocably binding on both parties. The question was
pretty fully considered by the Court of King's Bench, in the
case of Adams vs. Lindsell, 1 Barn. 4* -Aid. 681, and the de-
cision was in conformity with the principle that I have
adopted. But I infer from the reasoning of Best, C. J., in
the case of Routledge vs. Grants 4 Bing, 653, that this de-
cision was not entirely satisfactory to the Court of Common
Pleas, or at least it receives but a qualified approval. The
same general question was presented to the Supreme Court
of Massachusetts, in McCvUoch vs. The Eagle Ins. Co.^ 1
Pick. 278, and to the Court of Errors in New York, in itfoc-
Her vs. Frithy 6 WencL 103, and these Courts came to oppo-
site conclusions. It has been found not free from difficulties
by the civilians, and perhaps it will not be found an easy
task to reconcile all theft opinions. The subject has been
examined by Pothier, Conirai de Vente, No. 32; by Touliier,
DroU CivU, Vol 6, No. 30, 31, and notes, Vol. 7, No. 321,
and notes; and it was discussed by Uerlin in a very elabo-
rate argument before the Court of Cassation, with his usual
logical acuteness and copiousness of learning. Repertoire de
Jurisprudence, Vents, § 1, Art. 3, No. 11, bis. To the general

MAINE, 1847. 359

The Scioto.

rule that has been stated there is one well established excep-
tion. If the party who makes the offer dies or becomes in-
sane before it is received and accepted, the offer is then a nul-
lity, though accepted before the death is known.

On the whole, my opinion is, that the conditional remission
having been received and accepted by the claimant, and he
having tendered full performance of the condition and per-
formed it as far as he could, without the concurrence of the
other party, and so far as was necessary to vest and render
perfect his title before the revocation became known to him,
his title thereby became absolute and indefeasible, ft then
became a contract executed.

Motion overrtiled.

THE SCIOTO.

When a coUiaion takes place between a vessel under sail and one at an-
chor, the prima facU presumption, if there be any fitult, is that it is on
the vessel under sail.

A vessel entering a harbor is hound to keep the most vigilant v^atch to
avoid collision with other vessels in motion or lying at anchor ; and if
in the night time she ought to have her whole crew on deck on the
look out

When a collision takes place by the fituh of one of the vessels, she is
sponsible for all the damage.

But if it happens without fault in either party, or if there was fitult and
it cannot be ascertained which vessel was in fault, or if both were in
&iilt,then the damage and loss are divided between them in equal sharesL

A vessel ought not to be moored and lie in the channel, or entrance to a
port, except in cases of necessity ; or if anchored there from necessiQr
she ought not to remain tliere longer than the necessity continues. If
she does and a collision takes place with a vessel entering the harbor,
she will be considered in fault

A vessel lying in the channel of a port, from necessity, is bound in the
night time to show a light

360 DISTRICT COURT,

The Scioto.

In cases of collision, a fault of one vessel will not excuse any want of
care, diligence, and skill in another, so as to exempt her from sharing
the loss and damage.

December^ 1847. This was a case of collisioa occurring
in the harbor of Portland, between the Scioto, as she was
entering the harbor, and the Falcon lying at anchor. The
material facts are stated in the opinion of the Court It
was argued by Haines^ District Attorney, for the libellant,
and by Shepley for the respondent.

WaIib, District Judge,

The Scioto, on the evening of the 16th of December, being
on her passage from Calais to Boston, deeply laden with a
cargo of lumber, in consequence of the threatening aspect of
the weather, put into the harbor of Portland. The wind was
from the N. N. E., so that she could not lay her course into
the harbor, but was obliged to beat in. Two other vessels
were entering at the same time. As they entered, the Scioto
put in upon one tack, as the other two did on the other, and
each tacking at the same time, they passed each other in the
channel. After making three or four tacks, the Scioto in her
passage from the eastern to the western side, came in collision
with the Falcon lying at anchor about 40 rods north west of
the block house on House island, where she had been lying
for a week. This was about one o^cIock in the morning.
The moon was then just setting, the sky moderately but not
heavily overcast; some of the witnesses say that stars were
visible, and others that they were not During the first part
of the night, there were flying clouds sometimes obscuring
the moon and sometimes leaving it bright, but in the latter
part, the clouds became more dense and heavy. Still it was
light enough to see objects at considerable distance which
were broad oflF on the water, unless land lay behind, so that
the shade of the vessel was melted into that of the land be-
yond. It was in such a position that the Falcon lay when

MAINE, 1847. 36^

The Scioto.

seen from a vessel entering the harbor, the high land of th€^
town covering her hull. She lay also in the channel or pas^
sage way, not precisely in the track of a vessel entering th^
harbor with a fair wind, but within the range taken by ves^
sets beating in, and very nearly in the track of a vessel goiiigf
into Hog Island roads ; and she showed no light.

In the case of a collision of vessels by which damage is
done, the first rule, a rule dictated by natural justice, is thai
the vessel, by whose fault the collision took place, shall hi
answerable for all the damage. The first inquiry therefore
is, by whose fault this collision was occasioned.

ft may be assumed as a general rule, that when a collision
takes place between a vessel under sail and one not undlsi^
sail, the prima facie presumption is that the fault is
imputable to the vessel that is in motion. It is said in Jacc^
sotCs Sea Laws, page 339, generally and without limitation;'
that when a vessel in full sail occasions damage to one that
has no sail set, she will be held liable for all the damage'
The same is also stated as a rule of law by Boulay PatyJ
Droit Maritime, Tit. 12, $ 6, vol 4, p, 4%, and itisassumi^
to be law in the case of Strout vs. Foster, 1 How. Rep, 2y;
Undoubtedly the rule must admit exceptions. But the fir^
presumption will place the blame on her, because she has the
power of changing her course, and a vesi^l at anchor ik
stationary. Tlie vessel under sail must therefore clear hcW
self from the imputation, by showing that every practicable
effort was made to avoid the collision.

It may be safely stated as another general rtile admitting
perhaps of no exception, that a vessel entering the harbor ift
the night time, is put on her utmost vigilance; and this is
more especially the case if the port be one much resorted t6
in bad weather as a harbor of refuge, as that of Portland is.
When there is reason to expect that the harbor may be crowd-
ed with vessels, and this is always to be anticipated of Poi^
land harb6f after a few days of bad or doubtful weather, thii
highest degi^ee of vigilance may bci ycMf required, lilak

362 DISTRICT COURT,

The Scioto.

master and crew ought to be on deck, and in such parts of
4he vessel as to be able to control her motions, and to see any
vessel that lies in her track, and which they may be ap-
proaching. If this is not done and a collision takes place,
there will be great danger that the fault will be placed to her
account

Under these general rules of the law, the prima faci$
presumption of fault, if there was any, will be against the
Scioto. She was the moving vessel, and she was entering,
on account of the doubtful aspect of the weather, a harbor
much frequented by vessels on this coast for the very purposes
for which it was sought by her. Consequently, we have a
right to demand of her the utmost care and vigilance.

Taking the testimony of the crew, and I have seen no
reason for questioning their fairness, I think that there was
that degree of vigilance which the case required. The
whole of the crew were on deck and stationed in those parts
of the vessel where they had the best opportunity of con-
trolling her motions and seeing any object which they might
be approaching. But the fact was, that the Falcon was not
seen from the Scioto until she was so near that it was im-
possible to avoid a collision. The master, who was forward,
and the mate, at the helm, with one of the hands, saw her at
the same moment, and the mate immediately put up the helm
to bear away. She was moving in a direction that would
have brought her on the Falcon's bow, but the helm changed
her motion, so that she struck her quarter. At first, it may
appear surprising that the master, mate, and one of the hands
should all have seen her at the same moment when she was
just under the Scioto's bows, at not more than the distance of
thrice the length of the vessel. The testimony explains it
As they were approaching the Falcon, another vessel beating
into the harbor was approaching them, between the Falcon
and the Scioto, and entirely concealing her, and she was seen
as soon as this vessel had so far passed as to clear her. It
may still be asked why the Falcon was not seen before, when

MAINE, 1847. 363

The Scioto.

they were approaching her, and before the stranger vessel
intervened to prevent it The first answer is, that the Falcon
showed no light. If she had suspended a lamp in her
rigging, that would undoubtedly have been seen. But as the
night was sufficiently clear to see objects at a considerable
distance, it is contended that with a good look out, she might
and would have been seen sooner. It is not a satisfactory
answer to this point in the case, insisted upon for the libellant,
that the Falcon was seen from the Scioto as soon as
the Scioto was seen by the watch in the Falcon. I fully
agree with the libellant's counsel, that the obligation of a
vessel entering a harbor, to keep a vigilant watch, is more
stringent than it is on a vessel lying at anchor, for the obvious
. reason that, being in motion, she is in danger of collision, not
only with vessels in motion like herself, but with those at
anchor. And besides, the fault of the Falcon, if she was in
fault, will not excuse the neglect of any precaution on the
part of the Scioto. If by any reasonable degree of watch-
fulness the Falcon might have been seen, I hold that she
ought to have been. A vessel entering a harbor under the
circumstances of the Scioto, is responsible de levissi$na culpa.
Might then the Scioto, with a vigilant watch, be supposed
to have seeh the Falcon while she was approaching her, be-
fore the view was intercepted by the other vessel, which was
beating into the harbor at the same time ; or was the night
so obscure that, with a watch intently on the look out, she
might have escaped their sight ?. Undoubtedly there was
light enough to see a vessel broad off on the water, consideiy
ably further than these two vessels were apart before the
view was cut off by the intervening vessel. But then the
Falcon was within the land, so that in the direction ia which
she would be seen as she was approached in any direction,
the land rose behind her, above the line in which her hull
would be seen, and then the shade of the vessel would be
lost in that of the land ; and, in the position in which she lay,
she could in fact be discovered by the SciotQi as she ap-

S64

DISTRICT COURT,

The Scioto.

proached, at buta short distance. The testimony of the crew
is that they were on a sharp look out ; and fanit is not ordin-
arily to be presumed; it must be proved. No vessel can
reasonably be presumed wantonly to run into another, and
in cases of collision the presumption, until the contrary ii
proved, is that it was fortuitous. Repertoire de Jurispnat'
ence Abordage. Emerigoriy des Assurances j Ch. 12, $ 14^
page 414 Bmday Paty^ Droit Maritime^ Tii, 12, eh. 6, vot^
4» p(^g^ 494 Though there is some discrepancy in the testi*
mony as to the obscurity of the nighty without supposing it
absolutely impossible to have seen the Falcon sooner, I doneC
feel authorized to say that the Scioto must be in fault for not
doing it, or that there was a want of due vigilance on her part
Some light might have been thrown on this obscure part of
the case, if the crews of the other two vessels, which were
passing the Falcon at the same time, had been called as wit-
nesses. We should then have known at what time she wav
seen by them. But they have not been called by either party.
The next question is, whether a fault is imputable to the
Falcon, or whether the collision must be considered as a sim"*
pie misfortune, without fault on either side. When the
collision is purely fortuitous and preceded by no fault of either
party, the common law as well as that of Rome, following
the principles of the law of nature, left the damage and loss
to rest where it fell, on the principle that no one was respon-
sible for fortuitous events or accidents of major force. 3
Kent^ Com, 231. AMot on Shippings Part 3, ch, 1, p. t.
Amer. Edit. 1846. p. 301. Dtg 9, 2, 29, $ 2 and 4. An*
under the term fault are included, not only acts of positive
misconduct, but every want of due care, vigilance, or skill
on the part of the master and crew. Imperitia culpa: an^
numeratur. Dig, 60, 17, 133. But the maritime law, from
considerations of public policy, divides the loss equally
between them. The whole dan?age done to both vessels is
put into one mass in common, and each pays one half, with-
out regard to the dififerent value of the vessels, when boA

MAINE, 1847. 365

The Scioto.

parlies have beea ia fault, without attempting to discriminate
srbether the faults had not been greater on one side than the
other. Hay vs. Le Neve^ cited Abbot on Shipping, 230. If,
says Yalin, it should be objected that it would be more simple
to leave each vessel to bear the damage which she has suffer-
ody the answer is, that then the masters of large vessels
voiild have little fear of striking vessels smaller and of less
Alnength. Mothiug then is more just than a contribution by
moieties. Ordonnance de laMcLrine, Liv. 3, Tit. 7, art. 10.
Fo/j/i, vol. 2, page 179. Abbot on Shipping, p. 301. 3 Kent,
931. And this rule in the .admiralty seems to prevail in three
eases, first, when there has been no fault, on either sidef
second, when there may have been fault but it is uncertain
OQ which side it lies, and third, when there has been fault
on both sides. Story on Bailments, § 60S, a, b, c, d, 609,
and notes.

It is contended on the part of the respondent, that two
&ults are imputable to the Falcon, first, that she anchored
in the channel and thus obstructed the common passage way
of vessels entering and leaving the port; the second, that she
abowed no light. The Falcon arrived on Thursday the 7th
of December, just one week before this misfortune happened,
and came to anchor in the place where she then lay. She
vas bound to Boston, and came in on account of the weather.
On the very evening of her arrival, another vessel, the Med-
ford, in entering the harbor came in collision with her. That
has been the subject of examination in this Court, and dam-
ages were awarded against the Medford. The Falcon then
showed a light, but a question was then raised, whether she
was excusable for placing herself in that part of the channel.
The facts proved were, that the Falcon came into the harbor
as a port of safety on account of the state of the weather,
that the captain was unacquainted with the harbor, and that
he brought his vessel to anchor in a place where vessels
often anchor and lay for a short time. The Medford was
entering with a fair wind and could easily lay her course

366 DISTRICT COURT.

The Scioto.

■ . ■" ■

directly into the harbor. My opinion then was, and I have
seen no cause for changing it, that the collision happened from
want of due care on the part of the Medford, without fauh
on that of the Falcon.*

But the facts now before the Court present a widely differ-
ent case. The Falcon lay a little out of the track of a vessel
entering the harbor as her home port with a fair wind, but
precisely, as it was expressed by one of the witnesses, in the
gang way leading to Hog Island roads, and that is the place
aimed at by many, if not by most vessels which come into the
harbor for safety from stress of weather. All the experienced
ship masters without exception, who have been examined, say
that it was not a fit place for a vessel to anchor unlessin a case
of necessity, but that it was a place of danger both to herself
and other vessels that were entering into the harbor; and
that no vessel anchoring there from necessity, ought to remain
in so exposed a situation longer than the necessity continned.
Now the master had been very strongly admonished by one
collision that he lay in an unsafe place, yet he remained there
for a week after, without attempting to change his place.

Admitting that the master of the Falcon, being little ac-
quainted with the harbor, is excusable for bringing his vessel
to anchor in that place when he first entered tiie harbor, is
he excusable for remaining there after he had the most con-
vincing proof that he was in a place that exposed him to
collision with other vessels entering the harbor? It is con-
tended by his counsel that he was, first, because the subject
of the first collision was then under judicial examination,
and he might naturally suppose that he would be charge-
able with some impropriety if he removed while that matter
was pending ; and secondly, that there being no harbor master,
or port regulations directing where vessels may lie, every
master has a perfect right to choose his own place of anchor-

* The COM of Uie Medford is not reported, an oral opinion onljr having
been given.

MAINE. 1847. 367

The Scioto.

age, and that he has as much right to one part of the harbor
as another.

I can see no sufficient reason for his not removing his ves-
sel from the channel where she was in constant danger of
collision with vessels entering the port, from the fact that the
process for the first collision was still pending and undecided.
He might easily, by calling witnesses, have determined her
exact position, or at least nearly enough for the purposes of
that case. And though, in the absence of any harbor regu-
lation, every master may choose his own place of anchorage,
he makes the choice on his own responsibility. It does not
follow, because there are no special laws or regulations for
the port and harbor, that they are left without law. The
general law of the sea then governs. In all situations men
are bound by the common obligation of social duty, so to use
their own right as not to injure others. Sic uiere tuo utdtie-
nam non Usdas, is a principle of the law, as well as morals.
The law of the State does not, it is true, attempt to enforce
by penalties all the obligations of high and strict morality:
but this is one in which, in a great variety of circumstances,
it does come in aid of social duty and Christian charity. It
requires men to care for others as well as themselves, and so
to exercise their own unquestioned right, as not to violate or
infringe the equal rights and endanger the security of others.
Admit that in a case of urgent necessity, a master has a right
to bring his ship to anchor in the very middle of the channel.
Others have a right to that channel as a passage way, as well
as he. He could not remain there longer than his necessities
required, without encroaching on the rights which others
have to the free use of the channel, in passing in and out,
without dangerous obstruction. He is bound, as soon as he
is able, to remove his vessel to a place where she may be safe
herself and not endanger the safety of others. It is an old
rule of the maritime law, that a vessel improperly moored,
or in an improper place, can claim nothing for damages she
may suffer from collision with another vessel. Ordonnanee

^568 DISTIIICT qpURT,

The Scioto.

de la Marine, Liv, 3, TU. 7, art. 11, and Liv. 4, Tit. 8, art.
3. ValiUj vol. 2, p. 183 — ^579. 1 Emerigony Assurance^ Ch.
12, $ 14, page 412. Laws of Oleron, art 16. Notwithsland-
jlng the injury which this vessel had received ia the former
collision, I am entirely satisGed that she might have been
ipoored with ease, and with perfect safety, where she would
have been out of the way of vessels beating into the harbor,
and in my opinion, she was in fault in not doing it All the
witnesses agree on the point, which indeed seems too plain to
require proof, that a vessel ought not to lie, day after day, in
that part of the channel which is in the range vessels take in
beating into the harbor.

Another fault is imputed to th^ Falcon, that of not show-
ing a light. If she had shown one, it seems to me nearly
certain that she would have been seen from the Scioto in ap-
proaching her, in reason to have avoided the collision. If
she had had a light suspended in a conspicuous place, and a
collision had taken place, it would, to say the least, have been
extremely difficult for the colliding vessel to have excused
herself. For admitting that she was anchored in an improp-
er place, her fault would not excuse any want of care and
caution in another vessel. But here it is again said, that
there are no port regulations requiring vessels to show a light,
and that in point of fact it is not customary for vessels to do
so in this port. It is true that the testimony is, that though
vessels lying in the harbor sometimes show a light, they
usually do not. But whatever may be the custom, it appears
to me hardly to admit a question, that a vessel lying in a
channel, at the entrance of a harbor, where vessels are often
passing and repassing, ought in the night time in common
prudence to show a light. When she lies out of the channel
way where vessels pass, it may not perhaps be required; but
ff she places herself in the common passage way, though
she may have a right to lay there in a case of necessity, cer-
tainly it is not demanding too much to require her, while she
is occupying the common high way, to give notice, by a light,

M^m^, 1347. 369

Thfi Scioto.

qf Jtier posijtioii to others who are passing, and who are enti-
tled of coxnmon right to a free and unobstructed passa^. If
fhe does not, it appears to me that no Court could hold her
free from fault In some parts of this country this is said to
be required by port regulations. And I apprehend that it if
required by the law of the sea. In the case of Hay vs. Le
Neve, cited in Abbot w Shipping, 230, which arose and
yas much litigated in Scotland and was ultimately decided
on appeal by the House of Lords, the Wells was lying at
anchor in the Frith of Forth, and, in a cloudy night, was rim
down by the Sprightly and entirely lost. The House decided
that both vessels were in fault, and following the rule of the
maritime laws divided the loss between theui, each bearing
one half. Lord Gifford, in delivering his opinion to the House,
said he was strongly impressed with the negligence on the
part of the Wells in not showing a light, and it would seem
from the report of the case in Abbot, that this was the only
fault imputable to her. In Jacobson^s Sea Laws, 340, it is
said that the want of a lantern, in narrow walers, has always
been looked on as an omission and neglect not entitling a
party to redress when injured. And it is added, fhat it was
so decided by the Supreme Court of Holland on the advice of
Byokershoek, and there is no higher authority in maritime
law thjan this great civilian. The Ordpnnance of Ihe Marine,
I4v, 4, Tit, 3, Art. 4, directs that " when there are several
vessels lying in the same road, that which siiall be most out-
ward to the water shall have, during the night, a light in tht
ship's lantern, to warn vessels coning from the sea." An
extremely wise precaution, says Valin, but too much neglect-
ed, but if not observed, the vessel receiving damage would
not be entitled to an indemnity for it.

On these authorities, as well as the obvious reason of th^
thing, I feel justified in stating that a vessel lying in the chan-
nel of this port, (and by the channel I mean that part of the
water which is traversed by vessels coming into the harbor,
whether they can lay their course in, or are under the necea-

370 DISTRICT COURT,

Hooper §t al. v. FiAy-one eaiks of Brandy.

sity of beating in,) is bound to show a light in the night time,
whether the night is obscured by clouds, or it is star lig^t,
provided there be no moon. It is required in my opinion by
the general law of the sea, independent of all port regulations.
On both grounds my opinion is, that the Falcon was in fault
and is not entitled to recover against the Scioto. But under
the circumstances of the case, it being the first case of collis-
ion in this port which has been brought to the consideration
of the Court, (except the recent instance of the Medford,) the
libel is dismissed without costs.

HOOPKR BT Ah. VERSUS FiFTY-OnB CaSKS OF BrANDT.

lospectore of the Customs are public officers, and not the mere servants

and agents of the Collector.

Where a seizure is made by a Collector under the collection act, March
8, 1799, in pursuance of information given by an Inspector of tlie Cus-
toms, the Inspector is entitled to the informer's share of the forfeit-
ure.

No officer of the Customs is debarred from receiving a distributive share
of fines, penalties, and forfeitures, by the act of February 11, 1846,
ch. 7, allowed by previous laws, in consequence of having received his
maximum of compensation allowed by law.

What is received by the officers of the Customs for forfeitures, constitutes
no part of the emoluments to which the limitation of the maximum
is applied.

December TemijlSiS, This wasa petition of John K. Hoop-
er and Nathaniel Shaw, claiming the informer's share in the
proceeds of the sale of fifty-one casks of brandy, seized by the
Collector of Portland, and condemned as forfeited to the Unit-
ed States. It is alleged in the petition that, on the 27th of Jan-
uary, they found the brandy secreted in various warehouses
in town, and suspecting it to have been illicitly imported took

MAINE, 1848. 371

Hooper et oZ. «. Fifty-one casks of Bimndy.

it into their possession, and on the same day gave the Col-
lector information ; and that in pursuance of the information
the seizure was made, and such proceedings were thereupon
had, that the brandy was condemned as forfeited, and sold,
and the proceeds paid into the registry, for having been land-
ed without a permit, in violation of the 60th sectionof the col-
lection law of March, 1799. The answer of the Collector
and Surveyor, admits the facts stated in the petition, but de-
nies that the petitioners are entitled to the informer's share,
because they were at the time inspectors of the revenue,
in the employment of the United States, and had receiv-
ed the full amount of the maximum of their compensation
allowed by law. To this answer the petitioners put in a
general demurrer.

The case was argued by Haines^ for the petitioner, and by
iS>. /. Anderson^ for the respondents.

Ware, District Judge,

The proceeds of the forfeiture having been paid into the
registry, there is no doubt that the Court has the authority
to determine to whom they belong, and to order the money
to be paid out to those who are legally entitled to receive it
Wescott vs. Bradford, 4 Wash. C. C. R. 492. Ex part§
Cahoone, 2 Mason, 85. La Jeune Eugenie, 2 Mason, 409.
It is an authority that results to the Court as an incident to
its possession of the principal cause. McLane vs. U. S., 6
Peters, 404.

The petitioners claim the informer's share of the for-
feiture, under the general collection law of March 2, 1799.

The 91st section of that act provides, that all fines, penal-
ties, and forfeitures, recovered by virtue of this act, shall be
disposed of as follows, one moiety to the United States, and
the other to be divided between the Collector, Naval Officer,
and Surveyor, in equal shares, or among such of these offi«

?72 DISTRICT COURT,

Hooper el ai. v. Fifty -one cuke of Brendj.

cers as may be in the district. Then follows a proviso in
these words, under which the petitioners claim : " In all
cases when such penalties, fines, and forfeitures shall be re-
covered in pursuance of information given to such Collectori
by any person other than the Naval OflBcer, or Surveyor of
the district, the one-half of such moiety, [that is of the offi-
cer's,] shall be given to such informer, and the remainder
thereof shall be disposed of between the Collector, Naval Of-
ficer, and Surveyor, in manner aforesaid." The answer ad-
mits that the seizure was made and proceedings instituted
in pursuance of the information communicated by the peti-
tioners, which resulted in a decree of forfeiture. The only
question presented by the demurrer is, whether the petition-
ers are precluded from claiming as informers, on account of
their being at the time Inspectors of the Customs. The lan-
guage of the proviso is so plain that, had I not been inform-
ed at the argument that a different construction is put on the
act, by the officers of the Treasury Department at Washing-
ton, I should not have supposed their right would admit of
doubt. They cannot be included under the exception of Na-
val Officers, and Surveyors, and when the information, in
pursuance of which a forfeiture is recovered, comes from any
other person, he is entitled to the informer's share. On what
ground then can they be debarred from a claim which is
open to every other person except the Naval Officer and Sur-
veyor?

It is true, as was suggested at the bar, that the Inspectors
are employed for the special purpose of preventing frauds
on the revenue, and that in seizing smuggled goods, and comr
municating information of violations of the laws, they are
only in the performance of their ordinary duties for which
they receive a regular stipend. The argument is, that being
thus paid, it is not to be presumed that an additional com-
pensation is provided by law for services for which they are
already fully paid. Certainly the Courts can make no such
presumption ; but the inquiry is, whether the legislature has

MAINE, 184d. 9tS

Hooper tt tU. v. Fifty-one cuka of Brandy.

not offered them additional reward. And it may be remark-
ed that if this were a sufficient reason to exclude them froiU
any extra reward, the same objection might be made to the
claim of any other revenue officer. All are equally bound
for all vigilance in protecting the revenue against frauds, and
i^eive the regular emoluments attached to their offices,
which are deemed an adequate compensation for their ser-
vices. No presumption therefore arises from this circum-
stance, if they come fairly within the words of the law. But^
the enforcing of fines and forfeitures is always attended witft^
more or less odium, and sometimes with danger, and though
every man is supposed to be ready to do his wholie duty, the
legislature has thought it expedient to stimulate the activity
and quicken the diligence of the revenue officers in doing
what is sometimes an ungrateful service, by offering them a
share in the forfeitures, which are recovered by their agency.
The motive is to insure a more perfect execution of the fiscal!
liEiws, an object not only important to the government, but
to every fair and correct merchant, who pays duties on his
own importations ; and it may be added, to the general mor.
als of the community. There is scarcely anything more cor-
rupting to the morals and industrious habits of a people than
the practice of smuggling. It diverts men from the pursuit!^
of regular industry, by the prospect of easily acquired illicit
gains, and the transition from bold and desperate smuggling,
t6 the more atrocious crimes of robbery and murder, has been
found, by the experience of all nations, both natural and easy,
and not very un frequent

If the diligence of any officers of the revenue is to be en-
couraged by the offer of extra rewards, to whom would the
offers be more naturally made than to the Inspectors. Tliey
constitute the principal preventive police of the customs.
They are employed for the express purpose of preventing
and detecting frauds. They are the out-door guard, patrolt>
ing the streets^ visiting the wharves and traversing the waters

374 DISTRICT COURT,

Hooper el oZ. «. Fiftj-one eask« of firandjr.

of the harbor, while the Collector, Naval Officer, and Sur-
veyor, by the nature of their duties, are confined to their bu-
reaus within doors. If extra vigilance and fidelity are any-
where to be sought by the offer of special rewards, it would
seem that they could no where be offered, where they would
be more likely to accomplish the objects of the government
than 16 the Inspectors.

Another objection is made to the claim of the petitioners,
and to me it seems to be the only one that can overcome the
plain words of the statute. If it be well founded it is a bar
to the claim set up in the petition. It is this, that the inspec-
tors are the agents and servants of the other officers, that their
acts and information are the acts and information of the Col-
lector and Surveyor. The Collector, it is true, is authorized
to employ Inspectors, but not on his sole authority. It is only
with '*the approbation of the principal officer of the Treas-
ury Department" that he can employ them. If they were
the mere servants of the Collector, it is hardly supposable
that his nomination would require the confirmation of the
Secretary of the Treasury. Again, the Surveyor is authoriz-
ed to direct and superintend the inspectors, weighers, &c., in
the course of their duties. Stat. 1799, § 91. But this no
more makes them the agents and servants of the Collector
and Surveyor, than when any other subordinate officer is
placed under the direction and control of his superior. An
Inspector may seize goods which he suspects to be illegally
introduced into the country. If he seizes them without prob-
able cause, the owner may have a remedy for the wrong in
an action of trespass. If the Collector adopts the seizure, he
makes it his own, and he will be liable ; but will it be pre-
tended that, if he repudiates it, he will be responsible for the
tortious act of an Inspector? Yet this consequence will
follow if the Inspector is the mere servant of the Collector.
For there is no principle of law more firmly established than
that the principal is responsible for the wrongful acts of his
agent done within the scope of his agency. Siory^s Agencif^

MAINE. 1848. 375

Hooper et oZ. v. FiAj-one caikt of Brand j.

$642. Domat, Lois Civiles, Liv. 1. TU. 16, $3, No. 1. And
yet I hold it to be quite clear that, unless he adopts the seiz-
ure of an Inspector, he is no more liable for it than the
Postmaster General is liable for losses individuals may sus-
tain from the misconduct of his deputies. Dunlop vs. Mun-
roj 7 Cranchy 242. Whitfield vs. Lord Despencer^ Cotvp.
754 Inspectors are in fact public officers, commissioned and
sworn as such, and are in the employment of the govern-
ment, and not in the private employment of the Collector and
Surveyor. They are so described in the law, {Stai. March
2, 1799, $39—53, 73,) and an indictment will lie under the
71st section of that act, for forcibly resisting an Inspector in
the execution of his duties as an officer of the customs.
U. S. vs. Sears, 1 GaiL /?. p. 215. It is only in a very limited
and qualified sense that the Inspectors are the agents of the
Collector and Surveyor.

But the act of Feb. 4. 1815, ch. 31, $7, Statutes at Large^
p. 198, has been referred to as an act in pari materia, and as
giving a legislative construction to the act of 1799. The first
remark that occurs on this part of the argument is, that this
was a temporary act, passed to meet the emergencies of a
state of war, and has long ago expired by its own limitation.
It gave to the Inspector when he seized goods out of the
presence of the Collector, twenty-five per cent, of the Collector's
moiety of the proceeds of the forfeiture. The argument of
the counsel is that, without this provision, the opinion of
the legislature was that he would be entitled to no part.
The words of the act give this to the Inspectors, '^ in addi-
tion to such comf>ensation as may be allowed them;" that is,
as I understand the act, in addition to any compensation al-
lowed by law.

If it were necessary to give a construction to this obsolete
act, that to which my mind would incline is, tlfttt when the
Inspector made a seizure out of the presence of the Collector^
on information from a private informer, the informer would

^6 DISTRICT CX)URT,

Hooper H al. «. Fiflj-one caski of Brand j.

be etitiiled to one half the Collector's moiety, this being ex-
pressly directed by the act as a reward for the information;
and the Inspector, would be entitled to twenty-five per cent
of the moiety for making the seizure and securing the goods.
But if he made the seizure on his own motion and on his
oWn information, tliat the law did not intend to debar him
of any right he had under existing laws to claim as informer,
but gave the twenty-five percent, in addition when the seiz-
ure was made out of the presence of the Collector, and, of
course, on the sole responsibility of the Inspector. The re-
ward for giving information was left as it stood before, and
this was offered as an additional encouragement to Inspect-
ors, to stimulate their diligence and activity at a time when
the execution of the laws was attended with much difiSiculty
and some danger. Though this interpretation of the act may
be open to some objection, I by no means think the act of
IfilS, as a legislative construction of former laws, is so clear
Ugainst the right of Inspectors to claim as informers, as to
overcome the plain terms of the act of 1799.

We come now to the principal objection set up to the claim
<f( the petitioners, and I understand that it is mainly for the
purpose of having a decision on this, that the present case i^
bli^ught before the Court. If this prevails, it is admitted that
itappHiss as well to the Collector and' Stirveyor as to the In-
8]!»ectors. It arises out of the first section of the act of Feb-
ttlary 11, 1846, ch. 7, which is as follows : " That Collect-
rfrs and aH other oflScers of the ctistonis, sefving for a few
petiod than a year, shall not be paid Ibr the entire year, bttt
ilHall be allowed in rid case a greater thari a pro rata of the
itiaxlmum'cotiipen^ation of said offibei*s respectively, for the
time only which they actually serve as such Collectors or of-
ficers; whether the same be under one or more appointments,
d¥ before or after confirmation. And no Collector or other
oMteer shall' receive for his services, either in fees, salary;
/ilpi40S, penoMi^y forfeitures, or otherwise,' for the time he may
be iu service, beyond the maximum pro rata rate provided by
law."

MAINE, 1848. 377

Hooper ef al, v. Fifty-one caikt of Brand j.

The objection to the claims of the petitioners, drawn from
this act, is this. They are officers of the customs, and have
received the full maximum of their compensation, as estab-
lished by law, for the whole time they have been employed,
and therefore under this act, it is argued, they can receive
nothing more, in the way of compensation, whatever may
have been their services, whether as shares in fines, penalties,
and forfeitures, or otherwise.

This act is certainly not of very easy interpretation. I will
proceed to state that which, after the best consideration I
have been able to give the subject, seems to be the most reas-
onable ; which puts it in harmony with other acts relating
to the same subject matter, and which carries into effect
what appears to me to be the real intention of the legislature.
In the first place it appears evidently, on its face, to be an act
supplemental to former acts fixing a limitation to the emolu-
ments of certain officers of the customs. The first of these.

•

and that which lies at the foundation of all which follow, is
the act of May 7, 1822. Statutes at Large, Vol 3, 693.
The ninth and tenth sections of this act establish a maximum
of compensation, for certain officers therein described, to be
allowed in any one year, but they do not prescribe a maxi-
mum for part of a year. The consequence was, that when
two or more Collectors held the same office for parts of the
same year, no limitation being applied to a part, except that
which was established for an entire year, each officer might
receive and retain, to his own use, the maximum for a full
year, if the fees and other emoluments allowed by law
amounted, during the period for which he held the office, to
a sufficient sum. For all these fees he received, under the
existing laws, to his own use, until they amounted to the
maximum fixed by the law, and there was no maximum ex-
cept that for a full year. This construction was given to the
law by the Courts, and it seems to be the only one that it
admits. U. S. vs. Pearce, 2 Sum. R. 575.
It is very clear, that the first clause in the third section, does

378 DISTRICT CX)URT,

Hooper ei ai. «. Ftfty-one ca«ki of Brmndy.

no more than extend the principle of the limitation to a part
of a year, which the act of 1822 had established for an entire
yeaur. It allows the officer a compensation for a portion of
the year, that he has held an office, only in proportion to
what he would have had, if he had remained in office a full
year, though the fees and emoluments may have amounted
to a larger sum ; and here it is to be remarked that the limi-
tation, in the act of 1822, applies only to the ordinary emolu-
ments allowed by law. Whenever the emoluments of any
Collector, &c., exceed the maximum, the excess shall be paid
into the treasury. The 11th section expressly excludes, from
the operation of the law, what the officers may receive from
the distribution of fines, penalties, and forfeitures.

The first clause of the act of 1846 does not in its terms,
and manifestly is not intended to extend the limitation of the
maximum to any other sources of emolument than those to
which it was applied by the act of 1822. The whole diffi-
culty grows out of the mention of fines, penalties, and forfeit-
ures in the latter clause. After considerable reflection I have
come to the conclusion, that these words have been introduc-
ed into the act through inadvertence. And I will now pro-
ceed to state the grounds on which this opinion is formed.
The true sense intended by the legislature I suppose to be
this. In all cases where a maximum of compensation is es-
tablished for any particular service, or derived from any par-
ticular source for an entire year, the officer shall be allowed
for that service only a pro rata sum for a part of a year. For
instance, the Collector is allowed in some districts to receive
for his own use a sum not exceeding $6000, derived from
fees, commissions, and all other ordinary emoluments, and, if
they amount to more, the excess shall be paid into the treas-
ury. This is a limitation of his whole emoluments derived
from these sources. But there is a maximum also fixed for a
particular class of services. By the act of March 3, 1841,
the Collector is directed to render, in his account, a return, 1st,
of all sums of money received for fines, penalties, and forfeit-
ures ; 2d, of all sums received on account of suits instituted

MAINE, 1848. 379

Hooper et al. v. Fifly-one caiki of Brandy.

for frauds on the revenue ; 3(], of all sunas received for rents
and storage of goods in public stores, and if it appears that
the excess received for storage in any year, above what he
pays for store rent, amounts to more than $2000, that excess
should be paid over to the treasury. But this act, Uke that
of 1822, fixes no maximum for what he may receive for his
distributive share of fines and forfeitures. And the maxi-
mum for the excess of storage is fixed only for a year. If
therefore he was in office for half a year only, and the excess
in that time amounted to $2000, as there was no limitation
for part of a year, below that which he might receive for a
whole year, he might retain the whole for his own use, pro-
vided it did not carry up his whole emolument above the
limitation fixed by law. Now under this clause of the act
of 1846, when the Collector is in office but part of a year,
his fees and emoluments, for the excess of his receipts of stor-
age, are apportioned and cut down to a. pro rata allowance^
that is to $1000, and this seems to be the proper operation of
this clause. It operates distributively, for a part of the year
on each and every source of his emoluments to which there
is by law a limitation, to reduce them to a pro rata sum.
No Collector, or other officer, shall be paid for a part of a
year, above a pro rata of the maximum for a full year pro-
vided by law, that is, established by prior and existing laws.
But there is no law establishing a maximum for what a Col-
lector, or other officer, may receive for their distributive shares-
of fines, penalties, and forfeitures, and there can be no pro^
rata maximum for a part of a year, when there is no maxi-
mum for an entire vear.

The limitation, in this clause, for a portion of a year, can-
not, without doing violence to the language, be extended to
any emoluments, to which there was jio limitation by exist-
ing laws. It is by its own terms expressly confined to a maxi-
mum provided by law ; that is, most certainly, laws then in
force. If the Court were to extend it to emoluments received
from fines and forfeitures, it would create a new timitatiba
not known to the existing laws then in force. The whole of

380 DISTRICT COURT,.

Hooper ei al. v. Fifly-one cuki of Brandy.

the first section, of the act of 1846, applies only to officers
who are in office for a period less than a year, and its whole
operation, (and such is, I think, the manifest intention of the
legislature where a maximum had been established by prior
laws for an entire year,) to extend the principle to the service
of part of a year. The second clause of the section, as I
understand it, operates distributively, and where there is a
maximum fixed by law to an officer's emoluments for any
branch of his services, it apportions these for a part of a year
as the first clause does the whole.

This interpretation of that act, it is admitted, is open to the
grave objection that it leaves the words fines, penalties, and
forfeitures, nearly unmeaning, and it is one of the fixed rules
in the interpretation of statutes, that every word is presumed
to have an appropriate office and meaning. The sense in
which I understand them is, that no officer shall receive, in
his distributive share of fines, penalties, and forfeitures, any
thing beyond the proportion fixed and allowed by law;
that is, it leaves the existing laws without alteration. But
with respect to the present case, it might perhaps be suffi-
cient to observe that the petitioners do not claim in their
quality as officers of the revenue, but simply as informers,
claiming under the law precisely as every other pers:m may,
except the Naval Officers and Surveyors.

My opinion is, on the whole, that where a seizure is made
by the Collector, under the act of March 2, 1799, in pursu-
ance of information given by an Inspector, and there is a de-
cree of condemnation, the Inspector is entitled to the inform-
er's share.

And no officer of the customs is debarred from receiving a
distributive share of fines, penalties, and forfeitures, by the
act of February 11, J846, which is allowed by prior acts of
Congress, in consequence of having received the maximum
of his compensation established by law. there being no law
establishing a maximum for what an officer may receive
as his distributive share of forfeiture.

CIRCUIT COURT, 1849. 381

Goddard et al. v. Coffin ei, al.

GODDARD ET AL. vs. COFFIN bt al.

When there is an equal division of opinion in the court, on a motion for
any rule or order, the motion is not allowed, and fails.

If the motion be such that an affirmative decision is indispensable to the
progress of the cause, the case stops, and the parties go out of court.

If it be such as only arrests the progress of the cause, and there is an
equal division, the motion not being allowed is in effect overruled, and
the case proceeds as though no motion had been made.

When there has been n verdict and the motion has been made for a new
trial on which the court is divided, the motion is overruled, and no new
trial is allowed. But whether judgment can be entered on the verdict
or not, depends on the state of the case when the motion is made.

If, after verdict, there is any rule or ordeV*, general or special, for judg-
ment nisi, no new motion being made, the party in whose favor the
verdict is, is entitled to judgment.

If there be no such general rule, and no s[)ecial order has been made for
judgment nisi, and the court is equally divided en a motion for a new
trial, the case stands precisely as though no motion had been made.

The rendering of judgment is a judicial act, and must be done by the
court, and the record must show that it is the judgment of the court.

Id this court, jud.:^ment is rendered only upon the motion of the prevail-
ing party. If no motion is made the case stops. And upon such a
motion, the court being equally divided in opinion whether judgment
should be rendered, it seems that nothing can be done but to dismiss
the case without costs and without prejudice.

April Term 1849.

This case was tried before the District Judge, and a verdict
having been rendered for the plaintiff for $8,353,52 dam-
ages, a motion was made by the defendant for setting
aside the verdict and for a new trial. On this motion,
after argument, the court were divided in opinion; one of
the judges being for, and one against the motion. After
the judges had delivered their opinions, a question arose
and was shortly spoken to by counsel, whether judgment
could be entered on the verdict, the motion for a new
trial having been overruled by an equal division of opin-
ion. The Circuit judge was in favor of rendering judg-
ment The District judge doubted whether this could be

384 CIRCUIT COURT.

Goddard et al. «. Coffio et aL

rale. The entry would then be a mere ministerial act as much
as though there was a special order, and the judgment would
be that of the court under its general rules. But in this court
there is no such general rule, and no special order has yet
been made. The verdict therefore stands naked and alone ;
and without an order general or special, it may be asked how
the clerk is to make up the judgment, and in what form it is
to be entered. The common formula is Ideo vonsideratum
est per curiam^ it is considered by the court It is true, as is
said by Blacksionej 3 Com. 396, that the judgment is the de-
termination of the law, but the law can only speak through
its regular organs, and therefore the conclusion of law must
be pronounced by the court But the court has pronounced
no conclusion. If the clerk should therefore enter the judg-
ment in the usual formula, it would not be according to the
truth of facts. It would not be by the consideration of the
court. The record must show that it is the judgment of the
court, and the record must speak the truth. And therefore,
in the case of Hill vs Fieniam^ 4 Missouri Rep. 316,
Stfpplc^neni to United States Digest, article Judgment^ II, it
was decided, that an entry by the clerk, that judgment was
confessed in open court, and that the amount was liquidated
by the clerk at a certain sum, was not a judgment on which
a recovery could be had.

The whole question, then, appears to resolve itself into
this — whether the rendition of judgment is a judicial act, to
which the direct agency of the court is indispensable, and to
which the mind of the court is to be judicially applied ; or
whether, after verdict has been rendered, it is a ministerial
act, which may be performed by the clerk without an order
by the court When presented in this elementary form, the
question appears to me exceedingly clear and free fromdoubt.
If there be any one thing done in the progress of a cause, from
its commencement to its conclusion, that is peculiarly and
emphatically a judicial act, it is the rendition of judgment

Viewed then as a question of principle, to be determined by
the general analogies of the law, and the practice of its tri-

MAINE, 1849. 385

Goddard et al. o Coffin et al.

bunals, it appears to me that the plaintiff cannot have judg~
ment but by the order of the court. He has his verdict, that,
the court having refused to set it aside, stands, and he is
entitled to all the advantages that may be derived from it
What these may be, beyond the question now before the
court, it is not necessary to determine at this time. Certain-
ly judgment does not follow of course; for after verdict, and
after a motion for a new trial has been overruled, the party,
against whom a verdict has been rendered, may move in ar-
rest of judgment, or he may move for judgment in his favor
nan obstante veredicto^ for matter appearing on the face of
the proceedings. Taylor vs Whitehead^ Douglass^ 745, 6.
Rex vs Hays, 2 Strange 845. The King vs Holt, 5 T R.
445., Tidds Practice 840. 3 Black. Com. 393.

This seems to me to be the necessary conclusion from legal
principles. But it is supposed by the plaintiffs counsel, that
a different conclusion has been established by the decisions
of the courts, and a number of cases have been referred to,
which are supposed to sustain his view of the question. In
the case of the Antelope, 10 Wheaton 66, the vessel had been
seized and brought into the United States as a slaver, for an
alleged violation of our laws relative to the slave trade. The
negroes were claimed as the property of foreigners, and there
was a decree of the Circuit Court for their restoration. On
the appeal, the question was whether this decree should be
reversed, and upon this question the Court was equally divi*
ded. Consequently the judgment stood. The claimant had
obtained a decree of a competent tribunal, which remained
in force until it was annulled. For an appeal, or writ of er-
ror, does not annul, it only suspends the judgment The
question before the Supreme Court was not whether a judg-
ment could be rendered by a divided court, but whether a
valid and subsisting judgment could be reversed and annulled
by a divided court. Ettingvs The Bank of the United States
11 Wheaton, 59, is to the same effect. In cases of appeal
and writs of error in the supreme court, the question always
is on reversing, and not on affirming the decree or judgment

386 CIRCUIT COURT,

Goddard et. al v. Coffin et al.

Bridge vs Johnson^ 6 Wend, 342. That requires no affirm-
ance, for it stands and is valid, until reversed.

The cases of U. S. vs. Daniel^ 6 Wheat. 542. Packer vs.
Nixon, 10 Peters 408. Smith vs. Vaughan, 10 Peters 366.
Davis vs. Braden, 10 Peter 286, were all cases certified to
the Supreme Court on a division of opinion between the judg-
es of the Circuit Court, not on questions of pure law, but on
questions resting in the discretion of the court, and all they
decide is, that when the court is divided on such a question,
it is not one which can be brought before the Supreme Court
on such a certificate, under the act of 1802, ch. 21, Sec. 6.
In the case of Lanningvs. London^ 4 Wash. C, C. R. 332, it
was decided that when the court is divided on a motion for a
new trial; the motion fails and a new trial is not granted. So
we say; but that decision stops there, and determines nothing
as to the ulterior proceedings in the case.

The case of the U. S. vs Worrall, 2 DaU. 384, 396, requires
a more careful consideration. As it seems to have been un-
derstood, it is indeed directly in point for the plaintiff. The
defendant was indicted for an attempt to bribe an officer of
the United States, and a verdict was returned of guilty. A
motion was made, by Dallas, in arrest of judgrheiit, on the
ground that the court had no jurisdiction over the offense ;
the act charged not having been made punishable by any
act of Congress, and it was contended that the court could
not take cognisance of it 'as an offence at common law. On
this motion the court was divided ; one of the judges holding
that the court had jurisdiction, the other that it had not.
The court being thus divided, a doubt arose whether sen-
tence could be pronounced, and a wish was expressed from
the bench, that the case might be put in such a state that it
could be earned to the Supreme Court for a decision. The
counsel for the prisoner declined to enter into any comprom-
ise for that purpose ; and the court, after a short consultation,
sentenced the prisoner to a mitigated punishment. The case
has been referred to as establishing the principle that when,
on a motion for an arrest of judgment, and for a new trial,

MAINE. 1849. 387

Goddard et al. v. Coffin et al.

the court is equally divided, judgment must be rendered on
the verdict, 6 Peters Cond. R. 222, iwte. If such is the de-
cision, in my opinion it is not law. But I think no such de-
cision is to be inferred from the report of the case. The re-
porter has given no rubric of the points which he supposed
to be ruled in the case. In the index, though this case is
referred to four times, for other minor points raised or ruled,
this leading and most important one I do not find noticed ;
and if it had been understood to have been decided, it cer-
tainly would not have escaped the attention of so learned
and accurate a reporter as Mr. Dallas ; especially as he was
counsel in the case for the prisoner, and argued the motion*
I think that no such principle was decided; but that, on
consultation, one of the judges waive^d his opinion and con-
curred with the other on the main question of the jurisdic-
tion.

Cahill vs, BenUy 6 Binney 99, is another case which was
strongly insisted upon. In this, a motion for a new trial, af-
ter verdict, had been made, on which it does not appear that
any decision had been made, but it may be inferred that it
was overruled by a divided court. Afterwards a motion was
made for judgment, two judges being present. One ordered
judgment to be entered, and the other objected and ordered
his objection to be entered on the record. It was held that
the judgment was a good judgment Tilghman, chief jus-
tice, said that the court considered the dissenting judge, in
entering his objection on the record, as merely expressing his
opinion that a new trial ought to be granted, and not as in-
tending to arrest a regular course of the law. But he further
adds that the judgment is undoubtedly the judgment of the
court, and the prothonotary only their agent in entering it.
In one vievv. the decision appears directly in point for the
plain I iff. But if that be the decision, it appears to me to be
in direct opposition to every other case in the books, and not
only so, but the opinion is inconsistent with itself. For the
chief justice says that the judgment must be that of the
court, and yet says that a judgment which the record shows

388 CIRCUIT COURT,

Goddard et al. v. Coffiin et al.

was not rendered by the court is a valid judgment The
only way of reconciling the apparent contradictions in the
opinion is by supposing, what does not appear in the report,
that there was some general rule, analogous to the English
four day rule, by which a party, who had obtained a verdict,
was authorized to enter an order for judgment nisi. Then
the party would be entitled to his judgment, under the gene-
ral rule, unless it was rescinded. This would require a ma-
jority of the court, and the judge, who prohibited the entry
of judgment, would be chargeable with an attempt to obstruct
the course of justice, as is intimated in the opinion of the
Chief Justice.

When a court, consisting of a plurality of judges, is equally
divided on any motion, rule, or order, it seems to be a propo-
sition too plain for argument that the court can do nothing.
If an authority is asked, it will be found 12 Coke R. 118,
Proctor^ s case ; 3 Chilty^s Practice 10. The whole power
of the court, so far as relates to that subject, is paralyzed. —
So it was considered by congress ; and therefore it is provi-
ded by law, when such a division occurs, that the question
on which it takes place, shall be certified for a decision to
the supreme court. If an equal division arise in that court,
it is a casus omissus^ and the law not providing what shall
be done, if a decision is indispensable to its progress, the case
stops, and the parties must begin anew. In England, as long
ago as 14 Ediaard3, this difficulty was felt and a remedy
provided by parliament. If the Court of King's bench or
Common Pleas is equally divided, the case shall be adjourn-
ed to the Exchequer Chamber, and be there argued before
all the justices, and if that court is equally divided, it shall
be determined by Parliament, ComyrCs Digest, Court, D, 5.
Coke, Litt. 71. ^

What will be the precise effect of a division on the cause,
depends on the nature of the action, and the position of the
case when it occurs. If the question is one wliich must be
decided affirmatively, before any thing further is done, the
cause stops, and the parties must seek other means of

MAINE, 1849. 389

Goddard et al. v. Coffin et al.
T

settling the controversy. But if the motion or question was
only to arrest the progress of the cause, as a motion for an
amendment of the pleadings, or the continuance of the
action, then if there be an equal division, the motion fails, and
the cause proceeds; for the obstacle interposed is removed.

Thismaybeillustratedby several decisions of the English
courts. Iri the Dean of Rochester vs. Pierce, 1. Camp. 466.
Lord Ellenborough, at Nisi Prius, ordered a nonsuit. It was
carried before the full court by a motion to set aside the
nonsuit. The court, on this motion, was equally divided, so
that no order could be made. The consequence was that the
nonsuit stood. In Iveson vs. Moore. 1. Salk. 15, reported
also 1. Lord Raymond, 495, a verdict had been rendered for
the plaintiff, and an entry made under the general rule, which
is the four day rule of the English practice, for judgment
nisi. But a further rule was afterwards obtained by the de-
fendant, that judgment should be arrested nisi. On motion to
set aside this latter rule the court were equally divided, and
no judgment could be rendered. The last order was for a
stay of judgment, and as the court could not agree to rescind
it, the rule stood. The Reporter, (Ld. Raymond) adds, that
if the court had been divided on the first motion, the plain-
tiflf would have had judgment. That is, the first order, under
the general rule, being entered for judgment nisi, this would
have been an authority for the plaintiff to sign judgment,
unless it was rescinded, and a divided court could not
rescind.

The remark of the reporter illustrates the latter branch of
the proposition and is confirmed by the case of Chapman vs
Lamphire, 3 Mod. R. 155. There the plaintiff had a verdict,
and, under the general four day rule, an order had been enter-
ed for judgment nisi. A motion was made for arrest of judg-
ment. The reporter says, "The judges were divided in
opinion, two against two, so the plaintiff bad his judgment,
there being no rule to stay it, so that he had his judgment on
his general rule for judgement; but if it bad been on
demurrer or special verdict, then it would have been adjourn-

390 DISTRICT COURT,

Goddard etja]. o. Coffin et al.

ed into the Exchequer Chamber." For, on a special verdict,
there must be a rule made for entering judgment, and the
court, being divided, could make no rule. And on a demur-
rer, if the court be divided, the demurrer, it is true, is in
effect overruled ; that is, it is not allowed. But judgment
does not follow of course, without a rule or order of court;
and the judges, who were in favor of sustaining the demur-
rer, would, for the same reason, be opposed to rendering
judgment. If however, after entry of the general rule, which
is always for judgment nisi, a special order be obtained, for a
stay of judgment, or that judgment be arrested nisi, this
being the last order, the case in Salkeld shows whaf^ the
result will be. In Walmsley vs Rtissel 6 Mod. 203, it is said,
" If the case be ruled to be put in paper for argument, or the
rule be a curia adviscure vuli, and the court is divided, there
can be no judgment," and it is added, '' the case oi loesonvs.
Moore^ stands upon that point to this day."

The other cases, cited in the learned argument for the
defendant, both from the earlier and later reports, fully
support this view of the case. Vincent vs. Preston 12 Mod.
667. The King vs. the Justices of Leicestershire, Maide and
Selw. 442, Davis vs, Jackson, Palmer, 257. Attorney General
vs. Jeffries, M Cleland 270-308, Atkifis vs. Hart, M' Cleland
^* Younge, 2 1 3-245. In England, when such a division occurs,
it is said, when there is much property at stake, or it is for
other reasons important to have the question decided, to be
usual for one of the judges to withhold his opinion and thus
have a /^ro/orma judgment entered, for the sake of allowing
an appeal to the House of Lords. 3 Chitty^s Prac. 10,
Dean vs. Clayton, 7 Taunt, 536.

This case now stands on the verdict alone. There is no
subsequent order of the court for judgment nisi, nor for a stay
of judgment All that the court has decided is, that there
shall be no new trial. A division of opinion, on a motion for
a new trial, is not one which can be carried to the Supreme
Court, on the ceijtificate of the judges. But if a motion is
now made for any ulterior proceedings, and the court shoujd

MAINE. 1849. 391

Goddard et al. v. Coffin et al.

be divided, a question will be presented aflfecting the strictly
legal rights of the parties, over which the Supreme Court may
take jurisdiction, under a certificate of the judges. It is
agued for the plaintiff that, a new trial having been refused,
he had a right to judgment, without any motion on his part,
ex debUo justituB, I think otherwise. A motion for arrest
of judgment, in the order of judicial proceedings, comes after
one for a new trial, and may be sustained after a motion for
a new trial has been overruled. It is certain therefore, that
the court ought not to enter judgment as a matter of course,
for then the defendant might be precluded from making
such a motion.

In this posture of the case, the counsel ask the court what
is next to be done ? It seems to me that this question may
with more propriety be. addressed by the court to the counsel.
Ordinarily the court is not expected to act but on the motion
of one of the parties. Subject to the rules of law, the parties
are to determine what disposition shall be made of their case.
But if no motion is made, it appears to me that all we can
do is, to dismiss the case without cost and without prejudice
to either party. In the case of Veazie vs Williams^ 3 Story,
632, in this court, the judges were divided, one being of the
opinion that the bill ought to ^ be dismissed with costs, the
other that the plaintiff was entitled to a decree in his favor.
It was then our opiniob that the only decree, we could make,
was an order to dismiss the bill without costs.

If I could, consistently with my views of official obligation,
waive my opinion on the former motion, I would most cheer-
fully do it. But having heard the trial, and after the most
careful examination which I have been able to give to the
subject, having been brought to the conclusion that the inter-
ests of justice, and the rights of the parties require that the
case should be submitted to another jury, I do not feel that
I have any right to withhold from the party the benefit of
that opinion. It ^is true that a motion for a new trial is
addressed to the discretion of the court; but this is a judicial
discretion, and though from its very nature it cannot be lim-

392 CIRCUIT COURT,

Goddard et al. v. Coffin et al.

ited by any precise and arbitrary rule, it is to be determined
by the judicial conscience of the court; and when that is con-
vinced, by the view of the whole case, that justice requires a
new trial to be had, the court is as much bound so to decide
as when the decision of the question before it turns on a
positive rule of law. The court has no more moral or judi-
cial right to violate the sanctity of its own conscience, than
it has to violate the rules of law. When a question is
addressed to discretion, the obligations of conscience are as
imperious, as those of law when the question is addressed to
the law. And if a party is successful in convincing the
conscience of the court, that justice, consistently with the
rules of law, requires the interposition of its discretionary
action, he is as much entitled to it, as when he claims the
benefit of the positive rules of law, and the court is as much
bound to render that justice which he asks.

But though I do not feel at liberty to waive my opinion
on the former motion, the plaintiff Is not without remedy.
He may move for judgment, and if, on that motion, the court
should be divided, and it seems to be assumed that it will be,
and refuse to enter judgment on the verdict, he may apply
to the Supreme court for a mandamus, and, if he is right in
his view of the law, an order will be sent to this court to
enter up judgment. Life 4* Fire Ins. Co. vs. Wilson's Heirs,
8 Peters 291 .

DISTRICT COURT.
SKOLFIELD, LIB'T., vs. POTTER ET AL.

When a vessel is let to the master, to be employed by him, and he to pay
to the owners a certain portion of herearning?, the owners will be lia-
ble to the seamen for their wages, though by agreement the master is
to have the entire control of the vessel, to victual and man lier, and
furnish supplies at his own expense ; unless, at the time of shipping,
this contract is made known to them, and they are informed that they
are to look to the master as the only owner.

The money, that is paid over by the master, is paid as freight, and the
owners as receivers, and having an interest in the freight, are liable to
the seuneo fin* their wagea.

MAINE, 1849. 393

Skolfield Lib*t., v. Potter et al.

The freight is hypothecated for the wages, and every part of the freight
is liable for the whole wages. The owuers, who have received freight
under such a contract with the master, are liable for wages to the
full amount of the freight in their hands, and not merely pro rata in
proportion to what they have received.

The merchandise is bound to the ship for the freight, and the fireight to
the seamen for their wages.

When the owners of the ship are also the owners of the cargo, tlie cargo
owes freight to the ship, and this freight is pledged for the wages.

The decision in the case, Poland vt. the Spartan, reviewed and affirm-
ed.

June 9, 1849. — This was a libel in personam against the
owners of the schooner Arrowsic, for seamen's wages. The
libellant shipped at the port of Bath, as mate, on the 22d of
September, 1848, on a general trading voyage, and continu-
ed on board, and did duty as mate of the vessel^ in several
voyages, two of which were to foreign ports, until the return
of the vessel to Bath, on the second of May following. On
his discharge, the master delivered to him a barrel of flour,
part of the cargo belonging to the owners, and gave him an
order on the owners for the balance of his wages due,
amounting to $128, including the flour. The owners paid
him $25 on the presentment of the order, and promised to
pay him the residue in a few days. But after calling on
them several times, and being put off from time to time, he
sued out a libel. The owners, in their answer, not denying
that the services have been rendered, set forth a defensive
allegation, denying their liability for the wages. The de-
fence relied upon is, that the vessel was let to the master on
a verbal agreement ; under which he was to have the use and
control of the vessel, to employ her as he should choose, to
victual and man her at his own charge, and to pay the owners
for the use and charter of the vessel, one half of her gross
earnings, deducting one half of port charges. It was contend-
that having, by this contract, parted with the possession and
control of the vessel, the master became owner for the voy-
age, or the term during which he employed her under

394 DISTRICT COURT,

Skolfield Lib't., v. Potter et al.

this contract, and, as such, was exclusively liable • for
supplies and seamen's wages, and that they, as the general
owners, were exempted from all liabilities for these charges.
/. M. Adams for the Libellant; P. Barnes for the Re-
spondents.

Ware, District Judge,

It is admitted in this case, that the services have been per-
formed, and that wages are due. Some question was made
on the evidence as to the balance that remains unpaid. Two
charges of ten dollars each, made by the master for money
advanced before the termination of the service, are objected
to by the libeliant To prove these, the master produced his
memorandum book, in which these sums were charged ; and
this, with his suppletory oath, would be sufficient as primci
facie evidence even if the suit were against the master him-
self They stand charged in the same book, which contains
all the other charges, which are not objected to, and which
agree with the account kept by the libeliant himself. They
are the two last charges in the account ; and, at the time of
his discharge, the parties came to a settlement, and a draft
or order was given, and accepted by the mate, for the balance
found due. In this settlement these sums were allowed, and
it appears without objection at the time. I see no objection
to their allowance now.

The important question, in the case, is, however, whether
the respondents are liable for the wages. The schooner was
let by a parol contract, by which the master, as hirer, was to
have the possession and control of the vessel, was to navigate,
to victual, and to man her at his own charge, and employ
her in such business as he should choose, and to render to
the owners, for the use of the vessel, one half of her earnings.
It was objected at the argument, that it was not competent
to a party to prove such a lease of a vessel by parol evidence,
at least to affect the rights of third persons. It is true that
by the general maritime law, it is held that the title to ves-
sels must be shown by writing, 3 Ken(s Com. 130,

MAINE, 1849. 395

Skolfield Lib*t., «. Potter et tl.

and the contract of letting and hiring also should regu-
larly be, and usually is, proved by a charter party in writing.
But it has been held by a variety of decisions in this country,
that such a parol lease is valid, not only between the parties,
but to conclude the rights of third persons, who are strangers
to it.

It seems also to be settled by the general current of the
decisions, that under a letting of the vessel herself, whether
by a written charter or parol contract, when the possession
of the vessel is transferred to the hirer, and he appoints the
master and crew, and sails her at his own expense, and has
the entire control, that he is to be considered, with respect to
third {)ersons contracting with the master, as the owner, and
that he succeeds to all the rights and liabilities of the owners.
The general owners, or proprietors have then no lien on the
merchandize, for freight, nor are they personally liable for
supplies furnished to the vessel on the contract of the master,
but the hirer is substituted in their place, both as to their
rights and liabilities. 3 Kenfs Com. 136. Conkling's Jur-
risdktiorij Law, and Practice of the Admiralty^ 135. Nor
does it make any difference, according to the decisions, though
the charterer goes himself as master. Reeve vs. DaviSj 1
Adol. 4- EUis, 135, 23 Eng. C. L.R. 95. The cases in this
country go further, and decide, when a vessel is taken
by the master on the terms that this was, and he is to have
the control, and direct the employment of her, and the earn-
ings are to bedivided between him and the owners, that this is
to be considered as a lease or charter of the vessel. The
master is held, under such an agreement, to be the special
owner, and the general owners are not liable on his contracts
for supplies furnished the vessel while thus employed. Tag^
gard V. Loring, 16 Mass. R. 336. Emery vs. Hersy 4
GreenL 407. Thompson vs. Hamilton 12 Pick. 425. Out"
ler vs. ThtirlOf 20 Maine 213. Thompson vs. Snow^ 4
Oreenleaf 264 Cutler vs. Winsor^ 6 Pick. 335.

But it is evident, when the owners put their vessel into the
possession of the master on such terms, that the omtract ifl

896 DISTRICT COURT,

Bkolfield Lib'U v. Potter et tl.

of a mixed and somewhat ambiguous character. In one as-
pect, it may be considered as a charter of the vessel, and
this as a mode adopted to determine the amount of the char-
ter, or hire, to be paid. Viewed in another light, it partakes
of the nature of a partnership, in which one partner furnish-
es the capital, and the other contributes his. time and labor in
the transaction of the business ; and the profits to be divided.
In a third view, it may be considered as a contract of hiring
of the master, he to receive a share of the earnings of the
vessel, instead of a certain and stipulated sum for his wages.
In the various cases in which the subject has been brought
before the courts for adjudication, it has been presented iu
these various lights; and without any great violation of legal
analogies, or legal principles, the contract may be considered
as belonging to one class or the other. In a case before Lord
Ellenborough, {Dry vs. BasweU^ 1 Camp. 329,) the evidence,
first offered, being that the owners and master were to share
equally in the profits, he declared that it was a partnership
adventure, and that the master and owner were liable as
copartners; a joint participation of profit and loss constitut-
ing a partnership; and when on further evidence, it appear-
ed that the master was to have a share of the gross earnings,
and not to be liable for losses, he pronounced it to be a con-
tract of hiring of the master by the owners, and that this
was only a mode of determining the amount of his wages.
Generally, however, the courts have considered the contract
as a charter of the vessel, and the master as owner for the
voyage ; and, as a corollary from this decision, it is held that
the general owners are not liable for the master's contracts
for supplies and repairs in the course of the voyage.

But though this is the general language of the authorities,
there are exceptions. The case of Rich vs. Coe, Cotpper
636, is a strong decision the other way. Lord Mansfield, in
delivering the unanimous opinion of the court in that case,
observed, that whoever furnished supplies to a vessel, on a
contract made by the master, has a three-fold security. 1. The
person of the master. 2. The specific ship. 3. The personal

MAINE, 1849. 397

Skolfield Libt., «. Potter et tl.

liability of the owners; — and he added, that it makes no dif-
ference in the liability of the owners, that there is a private
agreement between them and the master, by which he is to
furnish the supplies and keep the ship in repair, unless the
creditor has notice of the contract, and gives credit to the
master individually.^ The doctrine of Lord Mansfield
seems to have been entirely satisfactory to Mr. Justice Story;
for in his treatise on Agency^ ^298, he states the law nearly
in the words of this great master of maritime law, though
the more recent decisions, which seem materially to qualify,
if they do not directly overrule the doctrine, must have been
quite familiar to his mind. Indeed, with respect to some of
them, he has on other occasions not hesitated to express his
doubts in very pointed terms. Arthur vs. The Casisviis^
2 Story Rep. 93. The Nathaniel Hooper, 3 Sum. R. 677 ;
and Chancellor Kent, though he seems to have yielded to
the authority of the later decisions, expresses his own opin-
ion in terms very nearly, if not entirely, agreeing with the
doctrine of Lord Mansfield. "To whom was the credit
given, seems to be the true ground on which the question
ought to stand." 3 Comm. 135.

Now if this contract between the hirer and the owners is
not known, the supplies are always furnished on the personal
credit of the owners, as well as on that of the master. In
the opinion, therefore, of Chancellor Kent, as well as of
Judge Story and Lord Mansfield, although the owners have
let the ship by a charter party, under which the master, if
he is their hirer, is bound to bear all the expenses of supplies,
they ought to be held bound to third persons on the master's
contracts, which fall within the scope of his ordinary author*
ity as master, unless this private agreement is made known;
for if it is not, supplies are always furnished on the credit of
the owners. The owners, by putting the master in posses-

* In the case of Reeve vs. Davis^ 1 .^dol. fyEUU 3\2 which ■eemi direetlj to
overrule ^hii deeiiion, the cue itself wu not referred to, either bj the eoun-
•el or the court.

398 DISTRICT (X)URT,

Skolfield Lib't., v. Potter et aJ.

sion of the vessel, hold him out to all who are ignorant of the
special contract, or at least enable him to hold himself out,
as authorized to bind them personally, by all contracts relat-
ing to the usual employment of the vessel. And if any ooe
must suffer from his acts, it is more reasonable that the loss
should fall on them than on strangers, who have given him
credit on the ground of his official character.

It is admitted, however, that the current of judicial decis*
ions is in favor of exempting the owners from their liability
for ordinary supplies, while the vessel is employed under such
& contract. But no decision has yet gone so far as to relieve
them from their liability for seamen's wages. Curtis^ Rig/Us
4* Duties of Seamen, p. 336. The seamen have always
this triple security, besides a direct hypothecary interest in
the freight ; and in all ages of the maritime law, their claim
for wages has been highly favored, both on the ground of
general commercial policy, and from the consideration of their
own habits of carelessness and characteristic improvidence.
They habitually enter into their engagements in reliance on
these securities, and they ought not, on principles of public
policy and natural justice, to be deprived of them by any
refined and subtle distinctions of law, which are so alien
from all their habits of thought and action.

This form of contract, of letting vessels to the master,
to be employed on shares, has become very common in this
part of the country, especially with respect to small vessels
employed in the coasting trade. The master to whom the
vessel is entrusted by the owners, is usually an enterprising
and industrious young man, but ordinarily of limited pecu-
niary responsibility ; for as soon as he acquires sufficient cap-
ital or credit, he becomes a part owner himself. These con-
tracts are almost invariably by parol, and the terms are
settled by a well understood usage. The master, under the
usage, is to bear the whole expense of victualling and man-
ning her. The port charges in the various ports visited, are
first to be paid from the gross earnings of the vessel, and the
balance of the freight is to be divided in equal shares between

MAINE, 1849. 399

Skolfield Lib't, o. Potter et al.

the master aud owners. The seamen often, and perhaps
usually, have no knowledge of this private contract between
the master and owners, and they engage their services in re-
liance upon the ordinary security, which the general marine
law gives them.

If this mode of letting the ship to the master, to be em-^
ployed on shares, relieves the owners from their liability for
wages, the contract will operate on the seaman, probably in
the great majority of instances, as a perfect surprise. After
the termination of his service, he finds one part, and an im-
portant part, of his security, the personal liability of the
owner, is gone, under a private contract unknown to him ;
and that of the master may be, and often will be, worthless-
There remain, it is true, the freight and the vessel, but the
freight is received from time to time, and there may be, and
usually is, little remaining due at the end of his service.
The ship is indeed an ample security. But since the act of
March 3, 1847, ch, 55, respecting costs in admiralty proceed-
ings in rem, by which all costs are denied to the libellant,
except for the payment of witnesses, unless he recovers more
than one hundred dollars, the remedy against the vessel for
all useful purposes, is taken away, when the suit is for less
than the sum named. And in these coasting and tradiug
voyages, the balance of wages will rarely amount to so much
as one hundred dollars. The consequence will be, that prac-
tically the seamen will have for their security nothing be-
yond the personal liability of the master.

No judicial decision has yet extended this modern doctrine
so as to deprive the seamen of their ancient right of recourse
against the owners. The whole doctrine in the cases, to
which it has been applied, is not free from difiiculties on the
principles of our law, except with the limitation mentioned
by Lord Mansfield, that the creditor is notified of the non-
liability of the owners at the time the credit is given. Be-
cause when he contracts with the master, he always has a,
right to believe that he is contracting with the owners, if he

400 DISTRICT COURT,

Skolfield Lib*t, v. Potter et al.

is not advised to the contrary. If he is informed, and then
gives credit, he knows to what security he trusts. To
extend the principle so as to bar the right of the seamen,
would be repugnant to the general spirit of the maritime law,
which has studiously provided in their favor the greatest se-
curity for their wages. I am unwilling to be the first Judge
to give it that Extension. Indeed, the original doctrine of
Lord Mansfield, appears to me to be the most just, and most
in harmony with the general principles of our law. The
master, by the known rules of law, represents the owners as
their agent, and is authorized to bind them by all contracts
relating to the usual employment of the ship. The seamen
enter into their engagements with the full confidence that the
owners are bound for their wages. If it must be admitted
that the decision of Lord Mansfield is overruled by the later
decisions, these go no further than to exempt the owners from
their liability for supplies furnished by men who are in the
habit of looking well to their securities. Rather than extend
these decisions by analogy, to the claims of the crew, unless
I can clearly see that on principle, the owners are exonerated,
I am ready to say, Malo. cum Platone errare — I will not add,
quam cum costeris vera sentire^ but — sooner than follow the
analogies of decisions, the soundness of which is so question-
able, and carry them out, to the exclusion of the seamen from
their recourse against the owners, unless at the time of their
engagement they are plainly told that they are to look to the
master as the only owner. The concealment of a fact of
such importance, is a fraud on the men.

But I do not put the decision of the case on this ground
alone. There is another on which I think the owners are
bound for the wages.

By the ancient maritime law, the title of seamen to wa-
ges is made to depend on the issue of the adventure, for
which they are engaged. Unlike other contracts of hiring,
their right to compensation does not depend alone on the fi-
delity and skill with which they perform the services for

MAINE, 1849. 401

SkolBeld Lib't, o. Potter et al.

which they engage ; but with whatever perseverance and
courage they exert themselves, their right to compensation is
suspended on contingencies, which may affect the ultimate
• result of the voyage ; it is made dependent on what has been
termed the fortune of the vessel. What then is this fortune to
which the seamen must look? The ship, says Emerigon, in
the condition in which she was at the time of her departure
from the port of outfit, together with all the freight which is
gained in the course of the voyage, form that fortune of the
vessel which constitutes the pledge to the seamen for their
wages. Trait Des Assurances ch. 17, sec. 11. The privileg-
ed hypothecation, then, he adds, allowed to the mariners,
comprehends every part of the ship and every part of the
freight, according to the nature of hypothecation, which is
tota in toto et — tota in qtiaiibet parte. Their privileged lien
is entire over the whole, and is entire in every part The
ship and the freight, with respect to wages, form one mass,
and all that remains of either, at the end of the voyage, is
pledged for their payment. The contract of the mariners,
Emerigon goes on to say, is a species of copartnership. It is
not indeed a partnership as to all the effects of that contract,
but as to some of its consequences ; for the seamen have no
claim to a remuneration, uut to the extent of the effects em-
barked in the enterprise, which they bring home. If all is
lost, the mariners lose their wages, and they cannot then en-
force the payment by a personal action against the master or
owners. But if all is not lost, whatever remains of the ship
or freight, is specifically pledged for their payment Freight
earned and put ashore, is saved from the effect of a super-
vening shipwreck, by which all that remains is lost It is a
partnership fund, that has entered the common chest, and is
hypothecated to the seamen for their wages.

It is now more than twenty years since I was first called
upon to examine this right of the seaman to claim their wa-
ges out of the earnings of the vessel. It was in the very
ably contested case of Poland vs. The Spartan, Ware^s Rep.

402 DISTRICT COURT,

Skolfield Lib,t. v. Potter et aL

145--6. In that case, it was held, that when goods of the
owners themselves are shipped, they owed freight to the ves-
sel ; and though no stipulated freight could be agreed, that
the seamen could proceed against the goods in specie, to en-
force their rights to the amount of a reasonable freight, to be
determined boni viri arbitrio. I am not ignorant that the
doctrine was then considered by some of the profession as
somewhat startling, for its supposed novelty and boldness.
But after ample time to review and reconsider the subject, I
have seen no reason to retract or qualify the doctrine of that
case. It is, in my judgment, a just and logical deduction
from the peculiar character given by the law to the seamen's
contract ; and is supported by the highest authority in the
maritime law. The owners, says Emerigon, who are ship-
pers in their own vessel, have two qualities which ought not
to be confounded. In quality of shippers, they owe a freight
to the ship herself; and in their quality of owners, the ship
owes a freight to them ; and he adds, this freight is pledged
to the crew. Des AssuranceSy ch. 17, sect 10, No, 2. It
constitutes a part of that fortune of the vessel to which the
crew are to look for their pay. To them, it makes no differ-
ence who owns the cargo. So far as they are interested,
there is a freight earned, and, to the amount of their wages,
it belongs to them.

I am aware of the dictum in the C2ise of Sheppard vs.
Taylor, 5 Peter's Rep. 712, that "the cargo is not in any
manner hypothecated or subjected to the claim of wages."
This was but a dictum, and the point was not necessarily
involved in the cause. It may be true that the cargo is not
directly, but it certainly is indirectly bound for the wages.
For it is a first principle of the^maritine law that the cargo
is bound to the vessel for the freight, and another equally
ancient and undoubted that the freight is pledged for the
wages. Indirectly, therefore, to the amount of the freight
due upon it, the cargo is bound for the wages. The master
is not obliged to deliver it until the freight is paid or secured,
and if not paid he may sell so much as is necessary to pay

MAINE, 1849. 403

Skolfield Lib't., v. Potter et al.

the freight The seamen may therefore indirectly, through
the master, proceed against the cargo itself, for their wages
to the amount of the freight due. When the owners of the
ship are the owners of the cargo, the seamen's claim on the
freight can be enforced in no other manner but through the
merchandise ; and I see no objection in principle or conven-
ience, to allowing the seamen to do that directly in their own
name, which they may do indirectly through that of the
master. Such was evidently the opinion of the English
Court of Admiralty, in the case of the Lculy Durham, 3
Haggard 196. The court says that ** a mariner has no lien
on the cargo, as cargo. His lien is on the ship, and on the
frieght as appurtenant to the ship; and so far as the cargo
is subject to freight^ he may attach it, as a security for the
freight that may be dueJ^ The doctrine maintained in the
case of the Spartan seems also to have met the approbation
of Judge Conklm. In his learned and valuable treatise on
the Law a?id Practice of the Admiralty , />. 75-6, he says that
*4t is recommended by persuasive considerations of justice,
and supported by strong analogies in the undisputed princi-
ples of the maritime law."

It appears by the testimony of the master, who was ex-
amined as a witness in the case for the respondents, that he
has paid over to them, at different times, $600, and, that on
a cargo of lumber carried for them, the freight was $500,
which has not been paid to him, but remains as part of the
earnings of the vessel in their hands. . In addition to thisy
the freight, on the cargo brought home in the vessel on her
return to Bath, was received and collected by one of the
owners, and is now in their hand&

Now every dollar of this money was hypothecated to the
seamen, as soon as it was earned, for their wages. To the
amount due to them, )t was their own hard earnings, and
whoever received it €is freight, received it subject to their
claims. As the freight, says Emerigon, is the fruit of the vessel,
it is just that it should first be appropriated to pay the wages
of those, whose labor has produced it This destination of

404 DISTRICT COURT,

Skolfield Lib't., v. Potter et al.

freight is derived from the nature of things, while their priv-
ilege against the vessel is against common right Assurances
eh. 17. § 11, No. 3. It is true that when the master pays
to a creditor the money which he receives as freight, the sea^
men cannot follow it into the hands of such creditor. For
it does not pass into his hands carrying with it the quality of
freight. But to the owners in this case it is paid over as
part of the earnings of the vessel, that is as freight. It is
said, indeed, that is paid to them not as freight, but as charter
for the hire of the vessel. But even admitting, under this
contract of hiring on shares, that the master is to be consid-
ered as the special owner, that the general owners, as to con-
tracts made by him with the seamen, as wel. as for supplies,
are strangers to the vessel, and that these payments, made to
them, are to be held as payments of charter, and not as pay-
ments of part of the freight, there will still remain in their
hands all the freight earned on her return voyage to Bath,
and $500 which they owe on the cargo of lumber. To this
amount they have the earnings of the vessel in their hands,
and the seamen might, in a suit against the master, have at-
tached this as freight due.

It is said, if the owners are held liable for the wages, on
the ground that they have received freight, that they are lia-
ble only in the proportion which the amount they have in
their possession, bears to the whole amount earned. But if
the decision were to be put on this ground alone, the conse-
quence would not follow. The whole freight is hypothecat-
ed for the whole wages. And from the nature of the cred-
itor's interest in the thing pledged, it is not subject to thfs
division. Every part of the thing is pledged for every part
of the debt, propter indivisam pignoris causam. Dig. 11, 2,
65. And therefore, if two things are pledged for one debti
and one chance to be lost or destroyed, the hypothecation or
lien, continues entire for the whole debt in that which re-
mains. Domat. Lois CivUes. Lib. 3. Tit. 1. Sect. 1. No. 13.
Pothier De UHypothique^ ch. 3, ^1. Pitman vs. Hooper^ 3
Sumner's Rep. 58.

MAINE, 1849. 405

Bkolfield Lib*t., o. Potter et al.

But it seems to me, that the decision may more properly
be put on a broader ground. Where the owners put their
vessel into the hands of a master, to be employed by him on
shares, I am prepared to hold as a just deduction from the
principles and general policy of the maritime law, that they
will continue liable to the seamen for their wages, notwith-
standing the entire control of the vessel may be surrendered
to the master, unless the seamen, at the time of their engage-
ment, are notified that the master is to be considered as the
sole owner, and that they are not to be liable. The rights
of the seamen ought not to be affected by this private agree-
ment between the master and owners. Even if the doctrine
of the modern decisions is admitted, and thex)wners are held
not liable to merchants who furnish supplies, there are strong
objections to extending the principle to the contracts of sea-
men. They enter into their engagements, in the confidence
that they have the usual and legal securities for their
wages. One of these, to which a seaman habitually looks, is
the personal liability of the owners. But in this case, there
will be in fact no owner, and the only personal security they
have is that of the master. Another reason is, the freight,
which is paid to the master, is the proper fund for the
payment of the wages. In the hands of the master, the
whole of it is liable for them. But here the freight is, from
time to time, paid over for the hire of the vessel, and only
one half of it remains in his hands, at the close of their ser-
vice, to respond for their claims. This private agreement,
between the owners and master, operates as a perfect surprise
upon them. My opinion is, that they ought to be held as
owners.

And further, in my judgment, they are liable for the wages
as receivers of the freight. They have in their hands, ac-
cording to the evidence, $1100 of the earnings of the vessel,
besides all the freight received on the cargo she brought
home to Bath. The money that was paid over to them,
was by the very terms of their contract, paid as the ship's
earnings, that is as freight. In its quality of fieighti it is

406 DISTRICT COURT,

Bkolfield Lib't., •. Potter et al.

liable for wages, in whoseever hands it may be. It partakes
too much of the character of subtlety, to call it charter, or ^
the hire of the vessel. It is more consistent with justice,
and I think quite as much so with the analogies of the law,
to leave to it the name, which the parties themselves have
given it, and under that name the seamen have a right to
receive their pay from it If, indeed, the respondents were
to be held liable simply as receivers of the freight, it might be
necessary to amend the libel, by making the master a party,
and then the services on them would operate as an attach-
ment of the freight in their hands ; and if I thought it nec-
essary, I should not hesitate to allow an amendment to meet
this posture of the case; but in my opinion it is not.

Independent of all these considerations, my opinion is,
that the respondents are liable on their express promise.
When the libellant presented the order of the master, a part
of it was paid, and a promise given to pay the residue. The
libellant had a right to consider this as a distinct admission
of their liability. If this order was to be considered as a
piece of commercial paper, and the principles of the com-
mercial law to be applied to it, they would be liable upon it as
acceptors. For an acceptance may be by parol, or may be
inferred from the conduct and acts of the party. Story on
Bills of Exchange, ^43. In reliance on this promise, the
libellant forebore to commence proceedings against the ves-
sel, or the master. It is now too late for the owners to deny
their liability.

In every point of view, I think the libellant entitled to a
decree for his wages.
Wages decreed, $103 12.

MAINE 1849. 407

The Ada.

THE ADA.

In suits in rem, the locus rd tiUt gives the jurisdiction, for it is only in the
courts of that country that ajiM in rt can be directly enforced.

Every contract is binding on the parties in the sense in which it is mutu-
ally understood by them at the time when it was made.

The meaning of the contracting parties is generally to be collected from
the words in which the contract is expressed.

But when the language is ambiguoa% or the words have a popular sense,
more or less extensive than that which the naturally import, we
may look beyond the words to ascertain the intent of the parties.

When the meaning of the language is obscure or uncertain, the construc-
tion is to be against the party in whose words it is expressed. This
general rule of interpretation applies in all its force, against the own-
ers, in the construction of shipping articles.

When, in the shipping articles of an English vessel, the voyage was de-
scribed to be from Liverpool to Savannah, and any port or ports of the
United States, of the West Indies, and of British North America, the
term of service not to exceed twelve months, it was hdd^ that the voy-
age intended was confined to the ports on the eastern shore of the con-
tinent, and that the articles did not authorise a voyage to San Fran-
cisco, on the north-west coast.

September I2/A, 1849.

This was a Libel for wages and was heard on the fol-
lowing statement of facts, agreed by the parties.

" The libellants shipped on board the Barque at Liverpool,
according to the shipping articles, which are to be exhibited
to the Judge at the hearing. From Liverpool the ship came
to the port of Savannah, where she arrived about the 20th
of May. She lay there about 10 days, and discharged her
cargo. She then ran in ballast to Calais, Maine, where she
arrived about the 20th of June. She discharged ballast im-
mediately, and in the course of three or four weeks began to

408 DISTRICT COURT,

The Ada.

fit up on her present voyage. The libellants asked their
discharge of the master several times after they ascertained
the destination of the ship. The first time was about three
weeks prior to the commencement of their proceedings be-
fore the magistrate. They also through their proctor, F, A.
Pike, made a demand, about a week before commencement
of proceedings, upon the master for their discharge, and for
their wages. In asking for a discharge, the reason given
was that they did not wish to go to California, two of the
men (Reynolds and Ciauahan,) stating in addition that they
wished to go back to Liverpool as their clothes were there.

The crew was not furnished with lime juice on their pas-
sage from Savannah to Calais, although they asked it of the
steward who said there was none for them. No complaint
was made to the master on this account.

The ship is now loaded for California, and has engaged
fifteen or twenty passengers for that destination, but intends
going to St. Andrews, in the province of New Brunswick,
first, for the purpose of clearing out for San Francisco.

The first mate was discharged in Savannah ; the second
mate was discharged in Calais about the 10th of August.

Reynolds was absent three times from the vessel without
leave; the first time, he was gone about an hour during
dinner; second time, absent from eleven o'clock till eve-
ning ; the third time, was absent about thirty-six hours to
Eastport, to see the British consul about this matter.

Hughes was absent with Reynolds from eleven o'clock till
evening, and again at the time Reynolds went to Eastport.

Clanahan was absent the same as Hughes.

Miller was absent with the others from eleven till evening,
and again about two hours.

After each of the above times the men returned to the
vessel and went to work as usual. The vessel had been
coppered and an extra passenger house built upon deck, and
two of the men had asked their discharge, before any of
the above absences.

MAINE 1849. 409

The Ada.

They remained on board the ship doing duty as usual, un-
til the day of trial before the magistrate, when they refused
to go on board, and have not since been on board.

The respondent claims a forfeiture, of the several libel-
lants, for absence without leave from the vessel as aforesaid,
under the provision of the shipping articles as follows :

William Reynolds, three times absent, £6.

Hugh Clanahan, twice " £i.

Robert Hughes, " " £i.

John Miller, " " £4.

The accounts annexed against the Libellants are correct,

except that they claim that the charge against each of them for

amounts paid in Savannah for fines, lor breach of the peace,

should be deducted ; for this reason, after the master paid

the fines, three men and two boys left the ship, and, on

account of his being short handed, these men refused to

get the ship under way and go to sea, and to induce them to

do so the captain promised to remit those charges, and the

men came with the vessel, short handed, to Calais."

g. , ) P. A. Pike J Proctor for Libellants.
^g" ^ ^ George M. Chase, for Respondents.

The case was argued by Debhis, for the Libellants ; and
W. P. Fessenden, for the Respondents.

Wabe, District Judge.

This is a suit on a foreign contract, in which all the par-
ties are foreigners, and is to be governed by the laws of the
country where it was made, and to which the parties belong.
The libellants proceeding on their lien against the ship her-
self, and that being within the jurisdiction of this court,
whatever scruples may be entertained by courts of admiralty
in other countries, there is no doubt according to the decis^
ions of our courts, and in my opinion there is none on gener-
al principles, that this court, notwithstanding the alienage of

410 DISTRICT COURT,

The Ada.

the parties, may take cognizance of the case, and enforce
the lien, if by law the Ubellants are entitled to it ConkUn^i
Law, JurisdicHanj and Practice of the Admiralty^ p. 24-3T.
The Jerusalem, 2 GaU p. 191. The Bee, Ware'% Rep. 332.
In suits in rem, the locm rei wUb necessarily gives the juris-
diction, because it is only in the courts of that country that
a jue in re can be directly enforced, though in foreign con-
tracts the law of the place, where the contract was made, fur-
nishes the rule of decision.

The Ubellants shipped at Liverpool, April 4th, 1849, for a
voyage, which is described in the shipping articles to be
from the port of Liverpool " to Savannah, and any other port
or ports in the United States of America, and any port or
ports in British North America, and any port or ports in
the West India Islands, at the discretion of the master, or
consignees, as freight or cargo may offer, and back to her
final port of discharge, of Great Britain and Ireland ; term
of time on the voyage not to exceed twelve months. The
vessel's complement of officers, seamen and apprentices,
eleven in number, and any over or above the number of
said complement to be considered as extra hands."

The vessel performed her voyage to Savannah, and hav-
ing discharged her cargo there, went in ballast to Calais.
There the Ubellants, having learned that the master was
preparing for a voyage to San Francisco, in California, re-
fused to go on that voyage, and demanded their discharge
and wages. Four and a half of the twelve months, to
which the time of the service was limited, had then expired.

The master contends that the refusal of the UbeUants to
proceed on that voyage was a breach of their duty, by which
they have forfeited all right to the wages they had earned
for their past services. The Ubellants, on the other hand,
say that this new voyage to California, was a deviation from
that originally contemplated and for which they engaged
themselves, and amounted to a breach and dissolution of the

MAINE, 1849.

411

The Ada.

contract, and released them from its obligations ; that they
might therefore well demand their discharge, and to be paid
their wages, for the lime they had served.

The right of the libellants to their discharge, and to be
paid their wages, has been ably vindicated by their counsel
on several grounds ; but they may perhaps all substantially
be resolved into one, at least in the view that I take of the
case, it will be necessary for me to consider only one, and
that is this, admitting, what is denied by the counsel, that
San Francisco is properly a port of the United States, not
having been made such by any laws, whether it can in any
just sense be deemed to be one of the ports contemplated by
this contract.

Every contract is morally binding on the parties in the
sense in which it is understood by them at the time when it
is made ; and it is to the same extent, and no farther, bind-
ing on them in law, when this sense can be clearly ascer-
tained. " Whatever," says Paley, " is expected on one side,
and is known to be so expected on the other, is to be deemed
a part or condition of the contract." Moral Philosophy^
Book 3, Pari 1, Ch. 6. This proposition I hold to be as
sound in law as it is in morals. AH the rules for the inter,
pretation of contracts have for their object to ascertain what
this common understanding of the parties is, and when it is
discovered, the law comes forward and applies itself to their
mutual and common intention, and holds the parties bound
by their agreement thus far and no farther.

It is commonly said that the intention of the parties is to
be collected from the words in which the contract is ex.
pressed. This, as a general proposition, is perfectly true;
but it is not universally true that we are to look at the
words alone. The greatest of the Roman Jurisconsults has
told us that, In conveniianilms conirahentium voluntatem^
poiitis qaam verba^ speciari placuit. Dig, 50. 16. 219. Pa*
pinianus Lib. 2, JResponsorum. It is the intention that is
sought. The language may be ambiguous and susceptible

412 DISTRICT COURT,

• Tlie Ada.

of two interpretations; or it may have a popular sense, in
local usage, or in its application to the subject matter of the
particular contract, more or less comprehensive than the
words naturally import when taken by themselves. In
these cases we are obliged to look beyond the words. Nov
I think that the case before us is one to which the latter dis-
tinction may apply. Within the words of the description of
this voyage, the master might carry his crew to any port in
British North America. But the British possessions extend
across the whole breadth of the continent, and without going
beyond the literal sense of the language of the contract, he
might carry them on a voyage to the extreme north-west
coast. Can it be imagined that the owners, when they pre-
pared this shipping paper to be^ read to the crew, supposed,
unless some verbal explanations were given at the time, that
the men would understand that they were binding them-
selves to go a voyage to the mouth of the Columbia river,
or to Vancouver's Island, if the master chose to carry them
there. The description would naturally suggest to them a
voyage to those ports which were familiar to the commerce of
their country, and which were frequently and ordinarily vis-
ited for the purposes of trade, and in the popular and usual
sense, they would suggest nothing more. That is, it would
be taken to be a voyage in which the vessel might visit any
of the American or British ports on the eastern shore of the
continent

This is the interpretation that I should have given to the
contract, if the description of the voyage had terminated
with merely naming the ports which might be visited, in the
order in which they stand in the shipping articles. They
would, without some further explanations were given, sug-
gest to the seamen a voyage embracing the ports on the
eastern shore of the continent and nothing more. It was
justly urged, by the counsel for the libellants, that, if there
is a fair and reasonable doubt as to the true meaning of the

MAINE, 1849. 413

The Ada.

articles, the seamen are on every principle entitled to claim
a construction favorable to themselves. It is the owners
who give the description of the voyage, and on general prin-
ciples applying to all contracts, if the language is ambigu-
ous or uncertain in its meaning, the construction shall be
against the party who uses it, because he is bound to express
himself clearly, and this principle applies with all its iorce
to contracts between owners, who are always men con-
versant in business and shrewd and watchful in looking to
their own interests, and seamen, who are proverbially care-
less, improvident, and ignorant The disparity in the condi-
tion of the parties imposes on the court the duty to take
care that the improvidence of seamen is not entrapped, by
the superior watchfulness and sagacity of owners, into en-
gagements that they did not intend to make.

In the present case, this construction of the contract is for-
tified by another clause in the articles, which appears to me
to be entirely decisive. It is the limitation of time. The
whole period of the service was not to exceed twelve months.
The first port the vessel was to make was Savannah, and if
a voyage around Cape Horn to the North-western coast of
the continent had been contemplated, it is incredible that the
time should have been limited to twelve months. The de-
cisions of the High Court of Admiralty in England, referred
to in the argument, though not in cases precisely parallel in
their facts with those of the present case, bear considerable
analogy to them, and from the tone and language in which
they were pronounced, I cannot entertain a doubt that an Eng-
lish court would hold, that the voyage to San Francisco was
such a deviation from the voyage contemplated by the ship-
ping articles, as to discharge the seamen from their contract ;
that the voyage was broken up as to them, and that they
are entitled to their wages. The Countess of Harcouri^ 1
Haggard 248. The Minerva, I Haggard 347. The
OeorgCj Home, 1 Haggard 370. The Cambridge, 2 Hag-
gard 243.

414 DISTRICT COURT.

The Ada.

If wages are decreed, the roaster contends that there
are equitable deductions to be made from the amount due ;
in the first place, certain sums which he paid for the libel-
lants in Savannah, for fines imposed on them, by the local
authorities of that place, for breaches of the peace. The
payment of these sums is admitted, and it is not denied that
they constitute an equitable set-oflf against their wages, un-
less the claim of the master has, for a valid consideration,
been released, and in my opinion it has. When the vessel
was ready to be got under way to leave Savannah, she was
found to be short-handed, three of the men and two of the
boys having deserted. The vessel's complement was eleven
hands, including the officers, so that she had but barely
more than half her complement left In this state of things,
the crew refused to proceed on the voyage; and to induce
them to forego their determination, the master promised to
release this claim against them. I should not be inclined to
hold the master bound by this engagement, if it had been
extorted from him under the pressure of necessity, without
any reasonable or colorable pretext. But this can hardly be
considered as a mqre wanton refusal to do their duty, oathe
part of the crew. Whether, on the requirement of the
master, they might have been bound to proceed on the voy-
age, with half a crew, being then in a port where additional
hands might be obtained, I do not think it necessary to de-
cide. By going with half their complement of men, they
subjected themselves to do double duty, and if the weather
should prove boisterous, to increased danger, and at the
same time relieved the owners from the expense of nearly
half the ordinary crew. My opinion is that their consent
thus to proceed on the voyage, under the circumstances,
was a sufficient consideration to uphold this release.

The master also claims a deduction of the amount of cer-
tain forfeitures, alleged to have been incurred by the libel*
lants. These, if any have been actually incurred, arise
under the statute of 7 and 8 Victoria, ch. 112, sect. 7, (Sept.

MAINE, 1649. 415

The Ada.

6, 1844) not for desertion, as they seem to be considered by
the master, but for temporary absence without leave. This
statute provides that a seaman shall forfeit, for every wilful
absence from the ship, without leave, or refusal to do his
duty, two day's pay, and for every twenty-four hours ab-
sence, six day's pay, or, at the option of the maister, the ex-
penses necessarily incurred in hiring a substitute ; provided
always, that no forfeiture shall be incurred, unless the fact
of the seaman's absence, or neglect, or refusal to do his duty
shall be entered on the ship's log book. These absences
were for short periods, the longest but half a day, except
one of thirty-six hours, for the purpose of consulting the
British Consul on the subject of this deviation from the
original voyage. This was a very proper and prudent act
on their part, and could in no sense, be called a wilful
absence. But with respect to all of them there is this fatal
defect in the evidence. It is not mentioned, in the agreed
statement of facts, that the absences were noted in the ship's
log. The admission of the absences, in the statement of
facts, is not sufficient to cure this defect This entry is not
required merely as a medium of proof, but for the purpose
of showing that it was regarded, at the time, as a criminal
act on the part of the seamen, and to prevent the master, oa
any subsequent difficulty with the seamen, from bringing
forward past absences, and creating forfeitures, when, at the
time, they were considered, if not entirely venial, as not de-
serving to be punished by statute forfeitures.
Decree for LibeUants.

417

APPENDIX.

[JitUe pai^e 908.}
(INTEBLOOUTOBY DECBBB.)

Maine District ss. District Court, )

December Term, 1842. )

In the matter of Richard Abbott and others^ Libellants
and PetitionerSjf vs. the Hull of a New Ship.

And DOW on the eonuog in of the Master's report, the parties were
heard by their Counsel on the acceptance of the same ; in oonsidermtion
whereof —

It is ordered and decreed that the same be accepted and confirmed in
all its parts, except as is hereinafter provided, and the seTeral daims
and demands therein reported and allowed, are declared to be liens on
the Tcssel, which is decreed to be subject to the same in the order and
rank of privilege hereinafter stated, viz :

[The several claims of the first class, amounting to (6213,55, are here
specified in detail in the same manner as in the final decree.]

And it is ordered that the several claims above named, with the costsi
be first paid fit>m the proceeds of the sale, when in the Registry, and i^
there is not enough to pay the whole in full, that each be paid pro rata in
proportion to the sums allowed.

And it is further ordered, declared, and decreed, that the several
claims hereinafter named are allowed as liens on the vessel in the second
rank, and are to be paid fi'om the proceeds of the sale of the vessel with
costs fully, if the proceeds are sufiScient, and if not, each to be paid pro
yoia in proportion to the claim allowed, viz:

John PuKiirroir - - - $5634,97

Joshua Richardsoit ... 228,83
Thomas R Knioht ... 1323,84
Robert H. Knight - - 1179,13

Total - - - $8366,76

And it is further ordered and decreed that the claim of John Purinton
of the sum of $2019,97 be disallowed, the same not being alien on the
vessel. ASUUR WARE.

December 10, 1842.

418

A P P E N DI Z .

(final DECBEB. )
Maine District ss.

District Court of the United Statef, December Term 1842, holden by
adjoarnment on the First Ta^sdaj, being the Third daj of January, A. D.
1843.

in the matUr ofRickard Abbott et aU,, UbeOanU tmd POUionen^ et. the Hutt Hjf a
New Ship.

Upon the return, by the Marshal, of the Interlocatory order of sale is-
sued in this case, it appears that the said Hull of a New Ship was sold at
public vendue, on the seventh day of November last past, for the sum ot
$19000.

That the costs and charges of sale, and of custody and e]q>enaes at-
tending the keeping of said vessel, from the first day of April last past to
the said day of sale, is $421^28, and the balance, being 112578,7% had
been, pursuant to said order, paid into the Registry of the Court.

It is therefore ordered, that the same be paid out of the Registry and dis-
tributed among the several Libellants and Petitioners, according fb the
decree passed herein on the tenth day of December last, in the manner
following, viz. to those in the first class of liens, as follows:

Richard Abbott

in full .

$ 199,75

Isaac Milliken

do.

. - 101,33

David Allen

do.

84,20

Joseph A. Means

do.

9,77

Greorge Chase

do. - .

. - 7,63

Charles F. Safibrd

do.

. - 42,59

Ebenezer C. Field

do.

- 22,29

Alpha Turner

do.

- 12,04

Tristram C. Stevens

- 361,75

Ezra Harford

do.

. . 383,33

Jos'h P. Chamberlain

do.

- 454,92

Mathew Gerrish

do.

. . 115,08

Nathan Chapman

do.

- . 20,00

F. Bradbury & Co.

do.

. . 22,62

Joshua Richardson

do.

- 1329,37

John C. Brooks

do.

- 977,49

Staples & Bartol

do.

- 1088,89

Blanchard & Foye

do.

- 37,08

Forbes & Wilson

do.

- 432,00

John Purinton

do.

72^21

ElezV Wyer, Jr. & Co. do.

. 24,10

J. R. Mathews 6l S. Fogg do -

95,83

APPENDIX.

419

Joho Swett in ftill

Reuben Allen do

James Bredin &a] do

George Mareton do

Joseph F. Sawyer do

Joshua Maxwell do
J. Symondfl & A. Jordan do

151,14
20^80

3,64

42,54

18,78
82,64

6213,55

And that the costs end charges taxed upon the sereral Libels and
Petitions, be paid out to the sereral Proctors, Officers, and others interest-
ed therein, yiz :

Amount taxed on Libel of Richard Abbott,

Isaac Milliken,
David Alien, 6l als,
Eben. C Field, & als,
Joshua Richardson, & als,
J. R. Mathews, & als,
John Swett and als,
Jos. T. Sawyer,
Joshua MaxweU,
Jos. Syraonds, & al,

Amounting in the whole to

The balance remaining in Registry

$226^
34,05
34,05
34,05
51,05
34.05
34,05
34,05
34,05
34,05

(6763,39
5815,33

112578,72
And it is further ordered that after the payment of the aforesaid sums,
the balance remaining being insufficient to pay in full the claims al-'
lowed as liens on said vessel, in the second rank, there be paid out to each
of said ckiimant8/wt> fxtfct, in proportion to the claim allowed, as follows,
viz:

To John Purinton, whose claim as allowed is 5634,97

the sura of 3916,60

To Joshua Richardson, whose claims as allowed is 228,83

the sum of 159,05

To Thos E. Knight, whose claim as allowed is 1323,84

the sum of 920,14

To Robert H. Knight, whose claim as allowed is 1179,12

the sum of 819,54

$8366,76 $5815,33

420

APPENDIX.

And it it fUither ordered that the several aforesaid siinn be pidd out of
the Registry, for the use and benefit of the respective Libellants and
PetitionerSi to their respective Proctors of record.

Attest JohnMnasey, Clerk.

INDEX.

ACCOUNTS. 2. If a veNel it let on a eontract of

1. The Admiralty has no jurisdic- affreightment, by charter party, the
tion over matters of account, merely owners will not be held responsible for
as accounts, although they may arise » loss occasioned by the violence of
exclusively out of maritime transac- '*»® elements, although the dangers of
tions. It can take cognizance of ac ^*»« seas are not expressly excepted by
counts only as incidental to other «^« charter party. Ibid.
matters over which it has jnrisdiction. 3. But if they are chargeable with

Davis V. Childf 71 any neglect or fault without which the

2. By the statute of limitations in 1°" ^o"^^ "o* *>*^« happened, they
Maine, in an action on a mutual and w*^! ^ *»*^1®- • ^^^'
open account current, the right of ac- 4. Every engagement to perform a
tion for the whole balance is deemed future act is subject to an implied con-
to have accrued at the time of the last dition, that the performance of it it
item proved in the account. But if a not rendered impossible by an acci-
party sleeps on a demand without en- dent of major force, or a fortuitous
teriog it on his account, until the pe- event. The^liza^ 316
riod of limitations is elapsed, he cannot 5. ^^.n unusual difficulty in obtain-
extract it from the statute by after- j^g a master and crew to navigate a
wards entering it upon his account. vessel, is not one of those events that

Ex parte, Storer, 294 ^m ordinarily excuse an owner from
^e Appropriation of Payments, performing a contract of affreightment

for the conveyance of goods. IM.
ACTION. s^g Jurisdiction, 7.

Where a creditor has a debt due to
him on a single contract or obligation, AGENCY.

he cannot divide it by assigning part 1. Money paid by an agent under a
to one and part to another, so as to mistake as to the legal obligation of
enable each assignee to maintain a his principal, may, it seenu be re-
separate action, without the assent of covered back by the principal in an
the debtor. action for money had and received.

The Hull of a New Ship, 199 United States v. BartleU, 9

Avaiia,AL,Li. revoked at anytime by the principal

See JuRiSDicnoir. without notice ; but if the agent in tha

prosecution of the business of hit
AFFREIGHTMENT. principal hat fairly and in good faith,

1. In every contract of affreight- b«^ore notice of the revocation of bit
ment, whether by charter party or bill PO'^®^** entered into any engage,
of lading, the ship is, by the marine ments, or come under any liabUiUet,
law, hypothecated to the shipper for **je principal wiU be bound to indem*
any damage his goods may sustain ^^ ***™*

from the insufficiency of the vessel, or United States v. Jarvis, 274

the fault of the master or crew. 3. So an agent, after accepting an

The Brig Cotco, 184 agency, cannot renonnce it atplaatora.

422

INDEX.

withoat notice or good caoM, but on ARREST AND IMPRISONUEN'T'
the condition of rendering bimwlf re- g„ Siamah's Waom, 80.

sponsible lor any loss which may
thereby be sustained by his princjpal. ^gsiGNEE IN BANKRUPTCY.

4. A contract, by which a right of ^"^^^ *^« bankrupt law, assignees
pre-cmtion is given to a party for a ^'® chargeable with interest on all
certain time at a fixed price, on a money which they have collected if
bona fide expectation that he may be- ^^* ^^'^ '''}'' *^« '«g»»*'y ^'**>*« »*«/
come a purchaser, will not constitote "^"^^ ^^"^ »^ ^ rcceiTed.

him an agent of the vendor, although •** ^* Thorp^ 290

he sells his interest in the contract at St9 Jukisdictiom, 17, IS, 19

an advanced price before the expire- Evidxncx.

tion of the term.

*""" "• ^""^' ^^ ASSIGNMENT OF DEBT.

5. But if the right of preemption _^

is given, not with an expectation that ^ }' V®° * cr«d»«0' transfers his
the party will become a purchaser, °«^*» **»« assignment carries with it
but solely for the purpose of enabling *" the accewroyobligatioiis, as pawns,
him to make sale of the thing, and to hypothecations, or sureties, by which
get his compensation in the advanced ^^^ <*«^^ " '^^ „ \r »r
price, this will render him the agent ^'*" */ « ^'^*^ ^*Vi 1^

of the owner, and the consequences of 2. But where a creditor Las a debt
agency will follow so as to render the due to him on a single contract or ob-
owner responsible for his acts. Ibid, ligation, he cannot divide it by assign*

See Navt Agent. ^"« P*" ^^^J'"* •'1? P«^* ^« "«'*»". ^

as to enatNe each assi^^ee to maan-

JuRiSDicTioif, 17, 19. ,ain a separate action without the

assent of the debtor. [kid

APPROPRIATION OF PAYMENTS-

1. When a debtor, owing another BANKRUPTCY,
several sums and on various accounts,

makes a payment, he nmy approprinio ^" Husband and Wife.

the payment to which debt he pleases. Partnebship, 8, 9, 10.

If he does not make tho appropriation, Jukisdiction, 19, 20 21.

the creditor may. P ' * *

United States v. Bradbury, UG ii-viDENCE, 2.

2. If neither party makes an ap- BILL OF LADING,
propriation at the time of payment,

the law intervenes and makes the ap- ^" AFFBEiOHTMawr, 1, 2.

propriation. Ibid.

3. In open and running accounts, ^^^^ ^^ EXCHANGE,
the law appropriates a partial i>ay- See Salvage, 7.

rnent to extinguish the oldest item in Paetnership 3, 4. 5. 6.'

the account. Jbid. >!«'»"•

4. When an appropriation is made BOND, FOR DEED OF LAND
by a receipt, prima facie it is the ^

creditor who makes it, because the ^" agency, 4, 5.

language is his. /6id. ^q^^-,^

5. By the Roman law, when no

appropriation of a payment is made ^'' Fishing Bouktt.

by either party, the law applies it to

the extinguishment of that debt which BUILDER OF VESSEL.
wiU be most beneficial to the debtor. See Htpothecation. 2 3

Ibid. ' '

INDEX 423

CHANNEL, MOORING VESSEL 8. A vessel ought not to be moored
IN and lie in the channel, or entrance to

See CoLLisioif, 8, 9. * P®'^ «*c«P* ^^ c«««« ^^ neccssitjr.

If anchored there from necessity

CHARTER PARTY. '^® ought not to remain there longer

than the necessity continues. If she

See Affeeightmint, 1. ^^^^^ ^„j ^ collision takes place with a

Lease of Vessel. vessel entering the harbor, she will be

considered in fault. Ibid

CHOSE IN ACTION. ^ . i , • .u t, , r

9. A vessel lying m the channel of

See Assignment, 1, 2. a port, from necessity, is bound in

Husband and Wipe, 1, 2. the night lime to show a light. Ibid,

COLLECTOR ^^* ^" ^'®' ^^ collision, a fault of

one vessel will not excuse any want

See Emroluent. of care, diligence, and skill in another,

Remittittur, 1, 2, 4. *o as to exempt her from sharing the

• loss and damage. Ibid.

COLLISION.

COMMON CARRIER.

1. Whether a vessel, when engaged
in an illegal employment, can main- ^' '^^^ owners of a steamboat,
tain an action for an injury received employed in carrying passengers and

from another vessel by collision merchandise between port and port,

Quaere ? The Leopard, 193 *'® responsible to shippers of goods,

o -rari .1. • J ^ 1.- as common carriers. The Huntress^ 82

2. When there is danger of collis- *

ion between two vessels, the one that ^- Common carriers must, at their
is sailing before the wind, or with a P®*"» "^^^'^^^ 8*^» ^^»^^ ^^^V ^^^Y
fair wind, must give way for one that ^^ '^® "8^* persons, and if they make
is close hauled on the wind. Ibid, * "*''**"» delivery, they will be respon-

- . , . , sible for any loss which may be there-

3. A vessel moved by steam is con- ^ occasioned. Ibid.
sidered as always sailing with a fair ' , . .^ . -r ,

wind, and must, in all cases, give way \ ^* " ***® ^"^^r of the owner of

for a vessel moved by the wind. Ibid. 8°^' ^"^ ***^® '*f "* properly marked,

. ,,.. ,,. . , . and to present them to the carrier or

4. When a collision takes place be- ^.^ servants, to have them entered in
tween a vessel under .ail and one at ^^^^, books; and if he neglects to do
anchor the prima facie presumption, if ,^ ^nd there is a misdelivery and loss
there be any fault « that it is on j^ consequence, without any fault of
the vessel under sail. The Scioto, 359 ^he carrier, he must bear the loss.

5. A vessel entering a harbor is Ibid.
bound to keep the most vigilant watch 4, But the carrier is not discharged
to avoid collision with other vessels in f^^^^ ^11 responsibility as to the delir-
motion or lying at anchor ; and if in ery by such neglect, but if there is a
the night time, she ought to have her ^,ong delivery or a loss through any
whole crew on deck on the look out. ^^nt of reasonable caution on the

^oid. puf^ of the carrier or his servants, be

6. When a collision takes place by will be responsible. Ibid,
the fault of one of the vessels, she is

responsible for all the damage. Ibid. CONDITION (IMPLIED).

7. But if it happens without fault See Affreightments, 4. 5.
in either party, or if there was fault _

and it cannot be ascertained which CONDITION PRECEDENT,
vessel was in fault, or if both were in See Remittitur, 3, 4.

fault, then the damage and loss are
divided between them in equal shares. CONSIGNMENT.

Ibid. See Mastsb, 4, 5.

424

INDEX.

CONSTRUCTION OF STAT-
UTEa

1. The preamble of a statate
cannot cjntrol the enacting part of
the law when the meaning is clear ;
but when the language is ambiguous
and may admit a larger or more
restricted interpretation, the pream-
ble may be referred to, to determine
which sense was intended by the
Legislature. The reason of this
rale of interpretation is, that it states
the reasons and objects of the law.

UniUd Statet v. Webiter 39

2. If the reasons and objects of the
law are made known by any other
document, equally authentic and
certain, this may, for the same rea-
son, he referred to, to aid in the in-
terpretation of doubtful or ambigu-
ous language in the law. Ibid.

3. In the constiuction of tempora-
ry statutes, as annual appropriation
acts, the presumption is that any
special provisions of a general char-
acter, contained in such acts, are in-
tended to be restricted in their oper-
ation to the subject matter of the
act ; and they are not to be con-
strued to be permanent regulations,
unless the intention of making them
so is clearly expressed.

United States v. JarviSy 274

CONSTRUCTION OF CONSTI-
TUTION.

See Jurisdiction, 7 to 15.

CONSULATE OF THE SEA.

Remarks upon^ 145

CONTRACT.

1. In all engagements formed in'
Ur absentes by letters or messengers,
an offer by one party is made, in
law, at the lime when it is receired
by the other. Before it i s received
it may be revoked. So the revoca-
tion, in law, is made when that is
received, and has no legal existence
before. If the party, to whom the
ofier is made, accepts and acts on
the offer, the engagement will be
binding on both parties, though be-
fore it is accepted another letter or
messenger may have been despatch-
ed to revoke it. Tht Palo Mto, 344

2. The exception to this rale,
established by the jurispradenoa of
the Courts, is, that if the party
making the offer dies or becomes in-
sane, before it is received and ac-
cepted, the offer is then a nullity,
though accepted before his death is
known. Ibid.

3. Every contract is binding on
the parties in the sense in which it is
mutually understood by them at the
time when it was made.

The Ma^ 407

4. The meaning of the contract-
ing parties is generally to be collect-
ed from the words in which the con-
tract is expressed. Ibid.

5. But when the language is am-
biguous, or the words have a popu-
lar sense, more or less extensive than
that which they naturally import, we
may look beyond the words to ascer-
tain the intent of the parties. Ibid,

6. When the meaning of the lan-
guage is obscure or uncerSin, the
construction is to be against the par-
ty in whose words it is expressed.
This general rule of interpretation
applies in all its force, against the
owners, in the construction of ship*
ping articles. Ibid,

7. When, in the shipping articles
of an English vessel, the voyage
was described to be from Liverpool
to Savannah, and any port or ports
of the United States, of the West
Indies, and of British North America,
the term of service not to exceed
twelve months, it was held that the
voyage intended was confined to the
ports on the eastern shore of the
continent, and that the articles did
not authorize a voyage to San Fran-
cisco, on the north-west coast. Ibkd.

See Jurisdiction, 7.

Seamen's Wages, 6, 21.
Affreiohtmbnt, 1, 4.
Hypothecation, 1.
Specific Perfobmancx, 1, 2.
Aoenct, 4.

COVENANT NOT TO SUE.
Set Equity, 7,

INDEX.

426

DANGERS OF THE SEAS.
See Mastxs, 1.

Affsxiobtkbht, 2.

DEATH.

See Contract, 2.

DECK, GOODS CARRIED ON
See Mastxs, 1.

DELIVERY OP GOODS.

See CoMMOH Carrier, 2.

DISCHARGE OF SEAMEN IN
FOREIGN PORT.

See Seamah*s Waoes, 5.

DISCOVERY.

See Equity, 10.

DIVIDED COURT.

See Practice^ 3 to 10.

ENROLMENT.

The enrolment of a Testel bj a
Collator, without the oath of one of
the owners haring been preriouBly
taken and subscribed in conformitj
with the Act of Congress of Feb.
18, 1793, ^ 2, is Toid, and does not
confer on her the rights and privi-
leges of a Tessei of the United
States.

United Statei v. BartleUt 9

EQUITY.

1. In a suit in equity for a perpet-
ual injunction, it appeared that the
plaintiff claimed title under a deed
from John Spring, dated April 14,
1832. The defendant, under a levy
on an execution of July 9, 1839,
traced back his title to a mortgage
of Spring, of January, 1830. Neith-
er party was in possession of the
land, but Spring was in possession,
holding adversely to both. It was
held that if this was to be considered
as in the nature of a bill quia timet, it
could not be supported until the title
was determined by a suit at law.

Shepley v. Rangeley, 242

2. A Court of Equity has juris-
diction in such cases, to decide on
iacu without the interrention of a
jury, but will not vsUhlly do so

when the eridenea if contradictory
or inoondusire. i&tdL*

3. This was more properly in tko
nature of a bill of peace. To main-
tain such a bill when the interest of
the plaintiff is present, and not fu-
ture, as in remainder or rerertioo,
and he has a present right to tho
possession, three things must oonenr.
1. He must hare the actual posses-
sion. 2. That posseuion must bo
disturlied. 3. His right must have
been previously established at law.

Ibid.

4. Where a party cannot bring hit
title to an immediate judicial exam-
ination because his interest is future,
as in remainder, or because he is in
possession, the only bill, which can
be maintained, is a bill to perpetu-
ate testimony. Jbid.-

5. A Court of Equity will not en-
tertain a bill, under the pretext of
quieting the possession, to determine
the rights of parties, where there hat
been no suit at law to try the title.

Ibid.

6. In a suit in Equity by the par-
chaser, for fraud in the sale of a
chattel, charging that the purchase
was made by A for and as the agent
of B, the deposiiion of A, taken to
prove the fraud, cannot be used, if it
appear that A was jointly interested
in the purchase.

Ferton v. Sanger, 253

7. The prayer of the bill being,
that the purchaser should take up
and pay certain notes given by A and
B jointly for the purchase money,
which were in the hands of an en-
dorsee, a covenant, by the endorsee
to A, not to sue him on the notes,
will not render him a competent
witness, for he would be liable ovei
to the endorser on his taking up the
notes. Ihid:

S. Courts of Equity will not en-
tertain jurisdiction of a suit for dam-
ages arising out of fraud, where
damages are the sole object of the
bill, for the remedy is complete at
law. Ibid.

9. But where other relief it foo^t
by the bill which oan be had only in

426

moEx.

Equity, and danisget are claimed as
incidental to this relief, Equitj, har-
ing properly possession of the caase
ioit relief that is parelj eqaitable, to
prevent mnltiplicity of salts, will
proceed to determine the whole
eanse. Ibid.

10. Whether it will entertain jn-
risdietion in each a Ase, and award
damages on the groand only that dis-
oorery is sought and obtained—-
Qoesre. Ibid,

11. The statate of limitations,
does not, in its terms, apply to
Courts of Equity, but lapse of time,
independent of the statute, is often a
bar in Equity. Ibid,

12. In cases that are Within the
statate. Equity ordinarily follows
the law, and will hold the statute to
be a bar to equitable relief, when it
is a bar at law. Ibid,

13. But in cases of concurrent
jurisdiction, as of fraud. Equity
sometimes goes beyond the law, and
holds lapse of time a bar to equitable
relief, when the prescription is not
itolly acquired at law. Ibid.

14. In cases of concurrent juris-
diction, if a party sleeps on his
rights until the progress of events,
and change of circumstances, hare
put it out of the power of the
Court to do equal justice between
the parties, which, as a Court of
conscience, it is bound to do it, it will
remain passire, and leave the party
to his legal remedy. Ibid.

15. Where Equity is not bound
€x debito justitia to act on the case,
the Court will not interpose with its
extraordinary powers, unless the
party comes in such time as leaves
Co it the power of fairly adjusting all
the material equities involved in the
ease, in such a manner that while
justice is done to one party, injus-
tice will not be done to the other.

Ibid.

16. In such oases the Court does
not act on the right, but leaves the
parties as it found them, to pursue
their remedies at law. Ibid:

8tt TRT7BTBS, 1, 2, 3.

HlTSBARD AlVP WXFS, 2.

SpKCXFIC PlftFORKAllOB, 2, 3, 4.

Paetitebshxp, 7.

EVIDENCE.*

1. On a libel for a tnarine tort, the
proofs must be confined to the mat-
ters that are put in issue, by distinct
allegations, in the libel and answer.

Pettingill v. Dintmore^ 208

2. An assignee in Bankruptcy, to
maintain his title to sue, need prove
only the decree of bankruptcy and
kis appointment. This is prima
facie evidence of his title onder the
law, without producing the bank-
rupt*s petition to be declared a bank-
rupt. Corr 9. Gois, 328

3. In Trover, it is not necessary
to prove a demand of the goods and
a refusal, where there haa been an
actual conversion. Ibid,

4. When a party objects to the
testimony of a witness, part of
whieh is admissible and part inad-
missible, he is bound to point out
that part to which the objection lies,
or the objection will be overruled as
covering too much. Ibid.

5. In a case where fraud is charged,
and the fraud is attempted to be
proved by circumstantial evidence,
facts which have no tendency to
prove the frauds charged, but merely
tend to create a personal prejudice
against the party, are inadmissible ;
bat if the Court can see that tkey
have any tendency to prove the
fraud, though it be but slight, they
are admissible to be submitted to the
jury, who are the proper judges of
their weight. Ibid.

Set Partnership, 2.
Collision, 4.

EXECUTOR.

Su Trvstbs, 1, 2, 3.

FEES OF PUBLIC OFFICERS.

See Navy Aoznt, 1.
Inspsotor, 2, 3, 4.
QvartsemaStbr, 11.

INDEX

427

FISHING BOUNTY.

1. A Tttsel, enrolled witbout the
owner's oath having been taken ac-
cording to .the statute, is not enti-
tled to claim the fishing bountj un-
der the act of July 29, 1813, f 9,

OhiUd Staiet v. BartUU, 9

2. If the bounty has been ixnprori.
denti J paid to a ressel so enrolled, by
the Collector, it may be recorered
back by the United States, in an ac-
tion against the owners, for money
had and received. Ibid,

FOREIGN JUDGMENT.
Stt Plkadimo, 3, 4.

FOREIGN PORT. DISCHARGE
OF SEAMAN IN

SU SbaXAM's WAOX8, 5.

FOREIGN VESSEL.

8tt Matseial Mbn, 2, «^.

FORFEITURE;

Where the proceeds of a forfeiture
have been paid into the Registry,
the Court has the authority to deter-
mine to whom they belong, and to
order the money to be paid out to
those who are legally entitled to
receive it. This authority resnlu as
an incident to the possession of the
original cause.

Hooper v. Fi/ty-one casks of
Brandy, 371.

Set Importation, 2.

RxMITTITVa.

IifsPECToa, 2, 3, i:

FORMER JUDGMENT;
See Plxadiho, 2.

FORTUITOUS EVENT.

See AFFRXIOHTMXlfT, 4, 5.

FRAUD.

See Pension.

Equity, 8, 10, 11,
Evidence, 5,

FREIGHT.

See Seaman's Wages, 11 to 16.
OWNEE, 0, 10, 11, 12.

GENERAL ILL TREATMENT
BT MASTER.

See Libel, 3.

GOODS, WARES, AND MER.
CHANDISE.

See Importation, 1.

HABITUAL DISOBEDIENCE BT
SEAMAN.

See Master, 6.

HARBOR.

See Collision, 5, 8, 9.

HUSBAND AND WIFE.

1. A husband has only a qualiflad
interest in choses in action belong-
ing to the wife He has, at com-
mon law, the right to make it abso-
lute by reducing them to possession.

Shaw V. Mitchell^ 216

2. But if he is obliged to seek thm
aid of a Court of Equity for the
purpose of obtaining poueuion, it
will be given only upon the condi-
tion that a suitable settlement out of
the property be made for the benefit
of the wife. Ibid,

3. Where property descended to
the wife of a bankrupt before a de-
cree of bankruptcy, and at that time
he had not reduced it into possession,
it was held that the wife was, in
Equity, entitled to an allowance out
of the property, for her support
against the assignee of the bankrupt.

Ibid,

HYPOTHECATION. .

1. A valid contract of hypothec
cation may be made not only of
things which the party has at the
time of the oontnot, but of whal
he expects to have, and of things
not then in existence. It will at-
tach to, and bind, the party's inter-
est in the thing as soon as it comes
into being. BM of a New Ship, 199

2. A ship buiJder, before he com«
menced building a vessel, entered
into a contract with a merchant, by
which he hypothecated the vessel to
be built, for advances : this was

428

INDEX.

held to be a valid hjpothecation of
the builder's interest in the Tesiel,
and to gi7e a lien upon it. Jbid.

4. By a statute of Maine, mate-
rial men and mechanics have a lien
on vessels for materials and labor
employed in making it, which has
precedence over the claims of all
other creditors. The lien created
by the contract of hypothecation
was postponed to those of the ma-
tetial men and laborers. Ibid:

^. Nor was the hypothecary cred-
itor subrogated to their privilege,
merely by paying their claims on
orders drawn by the builder. Ibid,

6. But when he actually furnished
materials, he was allowed to claim
concurrently with them. Ibid:

7. When a creditor transfers his
debt, the assignment of the debt
carries with it all the accessory obli-
gations, as pawns, hypothecations,
or sureties by which the debt is se.
oared. • Ibid.

ILLEGAL EMPLOYMENT, VESSEL
ENGAGED IN

See Collision, 1.

IMPORTATION.

1. The tackle, apparel, and fur-
niture of a foreign vessel, wrecked
upon our shore and landed and sold
separate from the hull, are not goods,
wares, and merchandise imported
into the United States, within the
meaning of the revenue laws.

The Gertrude^ 176

2. Goods taken and landed from
a foieign vessel wrecked upon the
coast, are not subject to forfeiture
under the 50th section of the Act of
March 2, 1799, ch. 122, by being
landed without a permit from the
collector. Ibid.

IMPUTATION OF PAYMENTS.
See AppBOP&XATioif.

INJUNCTION.

See Equity, 1 to 5.

INSANITY.

See CoNTBACT, 2.

INSPECTOR.

1. Inspectors of the Castoms are
public officers, and not the mere ser-
vants and agents of the Collector.

Hooper jr al, v. Fifty-one easke of
Brandy, 370

2. Where a seizure is made by a
Collector under the Collection Act,
March, 1799, in pursuance of infor-
mation given by an Inspector of the
Customs, the Inspector is entitled to
the informer's share of the forfeiture.

Ibtd.

3. No officer of the Customs is
debarred from receiving a distribu-
tive share of fines, penalties, and
forfeitures, allowed by previous laws,
by the act of February 11, 1846,
ch. 7, in consequence of having re-
ceived his maximum of compensa-
tion allowed by law. Ibid.

4. What is received by the offi-
cers of the Customs for forfeitures,
constitutes no part of the emolu-
ments to which the limitation of the
maximum is applied. Ibid.

INTEREST.

1. The principles on which Courts
of Equity charge trustees, assignees,
and executors with interest on trust
money in their hands, are, that they
have either used it in their own bus.
iness or improperly neglected to in-
vest it. In re Thorp, Q90

2. Where there has been gross
neglect, the Court will sometimes
make annual rests, and charge them
with compound interest. Ibid.

3. Undqr the Bankrupt law, as-
signees are chargeable with interest
on all money which they have col-
lected, if not paid into the registry
within sixty days after it is received.

Ibid.

JOINT PURCHASERS.

See Partnership, 1.

JUDGMENT.

1. When there has been a verdict
and a motion has been made for a
new trial, on which the court is di-
vided, the motion is overruled, and
no new trial is allowed. But
whether judgment can be entered on

INDEX.

429

the Terdict, or not, depends on the
state of the case when the motion is
made. Ooddard v. Coffin, 381

2. If, after verdict, there is anj
rule or order, general or special, for
judgment nisi, no new motion being
made, the party, in whose favor the
verdict is, is entitled to judgment.

Ibid,

3. If thore be no such general
rule, and no special order has been
made for judgment nisi, and the
court is equally divided on a motion
for a new trial, the case stands pre-
cisely as though no motion had been
made. Ibid,

4. The rendering of judgment is
a judicial act, and must be done by
the court, and the record must show
that it is the judgment of the court.

Ibid.

4. In this court, judgment is ren-
dered only upon the motion of the
prerailing party. If no motion is
made the case stops. And upon
such a motion, the court being
equally divided in opinion whether
judgment should be rendered, it uenu
that nothing can be done but to dis-
miss the case without costs and
without prejudice. Ibid,

JUDGMENTS OF OLERON.

Memarks upon, 144, note.

JURISDICTION, (admiralty and

MABITIMX.)

1. A person who lends money to
be employed in the repairs of a ves-
sel or to furnish her with supplies,
has the same privilege against the
vessel that material men have. He
is considered as giving credit both to
the ship and to the owners. The
ship is hypothecated to him for his
security, and he may maintain in
the admiralty, either a libel in rem
against the vessel, or a libel in per*
tonam against the owners.

Davit V. Child, 71

2. Whether this principle be sup-
posed to have been borrowed from
the Roman law, or to have had an

28*

independent origin in the oommer-
cial usages of the middle ages, it
appears to be equally unquestionable
in one case as in the other. Ibid,

3. The admiralty has a general
jurisdiction to enforce all maritime
liens. Ibid.

4. The admiralty has no direet
jurisdiction over trusts, although they
may relate to maritime affairs ; if
the libellant states a trust, as the
foundation of his suit, he states
himself out of court. Ibid.

5. Nor has the admiralty any ju-
risdiction over matters of account,
merely as accounts, although they
may arise exclusively out of mari-
time transactions. It can take cog-
nizance of accounts, only as inoi*
dental to other matter, over which it
has jurisdiction. Ibid,

6. Nor has the admiralty jurisdic-
tion to enforce the specific perform*-
ance Of an agreement relating to
maritime affairs. Ibid.

7. A contract for the transporta-
tion of goods on the high seas,
when it becomes a subject of litiga-
tion, is a case of maritime jurisdic-
tion, within the meaning of that
clause of the third article of tha
Constitution, which extends the ju*
dicial powers to ** all cases of admi*
ralty and maritime jurisdiction."

The Huntrett^SZ

8. In that clause, the terms adrni*
ralty and maritime, are not synony-
mous. Each has its appropriate
use. Ibid

9. In the grant of this jurisdic-
tion, it is to be presumed that tha
words are used in the sense which
they had in this country at the tima
when the Constitution was adopted.

Ibid.

10. Where, in the ConstitatioBi
technical terms of law or jurispru-
dence are used, which are common
to our own law and to the law of
England, if there is a difference of
signification in the two countries, tha
meaning which they have in our owa
country is to be preferred. Ibid,

430

INDEX.

11. The jnriidictioii of the Admi-
nXij Coarts in thif ooantry, at the
time of the rerolation, and for a
•entarj before, was more eztensire
than that of the High Coiut of Ad-
miralty in England. Jbid,

12. It if a role in the interpreta*
tion of all contracts and other instru-
ments, that if there is any thing am-
bignoas in the terms in which they
are expressed, they shall be ex-
plained by the common use of those
terms in the country where they were
made. Ibid.

13. The terms admiralty and mar-
ittffM belong to the Law of Nations,
as well as to our own domestic law,
especially admiralty, A Court of
Admiralty is a Court of the Law of
Nations, and derives, in part, its ju-
nsdiction from that law. The Con-
stitution may therefore refer to the
Law of Nations for the meaning of
these terms, as constituting part of
our own law. Ibid,

14. One of the rules acted upon
by the convention, in the grant of
powers to the National Government,
was, to make the judicial co. exten-
sive with the legislative power.—
The regulation and government of
maritime commerce is given to the
legislature, and by taking the word
maritime, in this clause of the Con-
stitution, in its usual and natural
sense, the judicial power is made
co-extensive with that of the Legis-
lature. Jbid,

15. The contemporaneous con-
struction of this clause in the Con-
stitution — by the Federalist — by
Congress — by a series of decisions
of the Supreme Court — and by the
uniform practice of all the Courts of
the Union, — contlnffed for sixty
years, negatives the hypothesis, that
the Admiralty and Maritime jurisdic-
tion nnder the Constitution, is iden.
tical with that of the High Court
of Admiralty in England ; and con-
sequently negatives the assumption,
that we are to look for the definition
of these words of our Constitution,
to the statute laws of England, as
they are enforced by her Courts.

Ibid.

16. When the I6eal law gives a

lien to matarial men and neehanies
for their demands against a ship, it
may be enforced in the Admiralty.
Hull of a New Skip, 199

17. In suits in rem, the heut ret
9ila gives the jurisdiction, fi>r it is
only in the courts ef that eonntry
that a jut in re oan bo directly en-
ibroed. Tht Ada, 407

18. MThen the pnjceeds of a for.
feitnre have been paid into the reg.
istry, the authority, to determine to
whom they belong and are to be
paid, results to the Court as an inci-
dent to its possession of the princi-
pal cause.

Hooper v, F*fiy»(me easke of Bran-
dy, 371

JURISDICTION (BANKRUPTCT.)

19. In an action of Trover against
Gale and Hemenway, by the as-
signee of Hemenway, for the con-
▼ersion of a store of goods in the
possession of Hemenway, claimed
by Gale as owner, aAd by Heosen-
way as the agent of Gale, and
claimed by the plaintiff as part of
the assets of Hemenway*s bank-
ruptcy, it was held that the Circuit
Court had jurisdiction against Hem-
enway as well as Gale.

Carr v. Gale, 32S

20. The District Court has, under
the bankrupt law, exclusive jurisdic-
tion of all controversies, between the
assignee and the bankrupt, arising
out of his bankruptcy, and depend-
ing on his quality or etatut, and in-
volving his rights and immunities as
a bankrupt.

21. But when the bankrupt has
possession of property claimed by
the assignee as part of the assets of
the bankroptey, and the bankrupt
claims to hold them, not as a bank-
rupt but under an independent title
as the agent of a third person, he is
simply a person claiming an adverse
interest, and the Circuit Court has
jurisdiction.

LACHES.

Poverty is not generally an exente
to a suitor, for delay in commencing
a suit. But, when the itatnte of lim-

INI»X.

431

itationi doei not create t bar to the
legal remedy, the pecuniary embar-
rassments of a plaintiff will so far ez-
ense delay, not beyond the period of
legal limitation, as to reliem his
claim in equity from the imputation
of staleness ; especially when his
embarrassments have been occasion*
ed by the acts of the defendant.

Ifosen V. Crotbyt 303

8e€ EQT7ITT, 11 to 15.

LEASE OF VESSEL,

A parol lease of a vessel is valid,
not only as between the parties, but
to conclude the rights of third per-
sons. Skolfiild V. PottiTf 392

LIBEL.

1. Creditors who have a lien upon a
veuel for their demands, may unite
in one libel, or if a libel has been
filed by any one separately, then
others may come in by petition and
make themselves parties to the suit.

HuU of a New Ship, 199

2. In a libel for a marine tort, the li-
bellant must set forth, in a distinct
allegation, each separate and dis-
tinct wrong on which he intends to
rely, and for which he claims dam-
ages. Pettingill v, Dinsmortt 208

3. If he intends to rely on gener-
al ill-treatment and oppression on
the part of the master, in aggrava-
tion of damages, it must be pro-
pounded in a distinct allegation^ to
enable the master to take issue upon
it in his answer. Jbid,

4. The proofs in the case mnst be
confined to the matters that are put
in issue by the libel and answer

Ibid.

LIEN.

1. A person who lends money to
be employed in the repairs of a ves-
sel, or to furnish her with supplies
has the same privilege against the
vessel that material men have ; he is
considered as giving credit both to
the ship and to the owners. The
ship is hypothecated to him for his
security, and he may maintain in the
admiralty either a libel in rem against
the veisel, or a libel in pereonanee
against the oWRcrs.

Dovif V. CAOd, 71

2. Where property which is sub-
ject to a lien, is transferred, with
notice, the lien follows it into tHa
hands of the assignee, and remains
as long as the identity of ihi thing
continues.

United Statet v. WaUrborough, 154

3. A shipper, whose goods are
lost or damaged by the fault or neg-
lect of the master, has for his dam*
ages a remedy against the owners
and a lien on die ship.

The Waldo, 161

4. But it is only those acts of the
roaster which are within the scope
of his duty as master, that bind the
owners and create a lien on the ves-
sel. Ibid.

5. When the local law gives a
lien to material men and mechanics
for their demands against a ship, it
may be enforced in the admiralty.

HuU of a New Ship, 199

See Affebiohtxsht, 1.

Htpothbcatxok, 1 to 6.

Matsrial Mew, 1 to 7.

Sbaman's Wages, 4, 13, 14, 25,
26,27.

LIFE, PRESERVATION OF
See Salvage, 2.

LIGHT.

A vessel lying in the channel of a
port from necessity, is bound in the
night time to show a light.

The SciotOf 359

LIMITATION, STATUTE OP

1. By the statute of limitations in
Maine, in an action on a mutual and
open account current, the right of
action for the whole balance is
deemed to have accrued at the time
of the last item proved in the ac*
count. But if a party sleeps on a
demand without entering it on his
account, until the period of limita-
tion is elapsed, he cannot extract it
from the statute by entering it after-
wards on his account.

Ex ParU Storer, dM

2. Where a party has an udB-
quidated demand, the limitation be-
gins to run from the time when the
right of action aoomes. Ibid.

432

INI^X.

3. Bot if the parties, aAer the
right of action has accraed, come to
a settlement, and determine the
som due by matnal agreement, the
limitation, begins to ran from the
time of such settlement. Jbid.

MARITIME JURISDICTION.
See JusxsDicTioK.

MARKING GOODS.

It is the duty of the owner of
goods to have them properly marked,
and to present them to the carrier or
his servants to have them entered in
their books, and if he neglect to do
it, and there is a misdelivery and
loss in consequence, without any
fault of the carrier, the owner must
bear the loss.

MASTER OF VESSEL,

1. The master of a- vessel is
bound to secure the cargo under
deck. If he carries goods on deck
they are at his own risk, and if they
are lost or damaged he cannot pro-
tect himself under the usual excep-
tion of the dangers of the seas, — at
least, unless the accident by which
they are lost would have been equally
fatal if they had been under deck.

The Waldo, 161

2. A shipper, whose goods are
lost or damaged by the fault or neg-
lect of the master, has for his dam.
ages a remedy against the owners,
and a lien on the ship. Ibid.

3. But it is only those acts of the
master which are within the scope
of his duty as master, that bind the
owners and create a lien on the
vessel. Ibid.

4. If the shipper consign his
goods to the master for sale, the
master, in all that relates to the
safe stowage and transpq|Ftation of
the goods, acts in his quality as
master. He is the agent of the
owners, and his acts bind the own-
ers of the ship. Ibid.

5. But in what relates to the sale
and disposition of the goods, after
they are carried to the port of desti-
nation, he acts as agent of the ship.

per, and neither the owners nor the
ship are responsible. Ibid.

6. When a master is prosecuted
in the admiralty for punishing a sea-
man, <he may be permitted, in justi-
fication or in mitigation of damages,
to show that the seaman was habiu
ually careless, disobedient, or negli-
gent in his conduct.

PettingiU v. Difumore, 208

7. But in order to be admitted to
this defence, he must set forth such
habitual misconduct in a defensive
allegation in his answer, in order
that the libellant may be enabled to
meet the charge by counter evidence.

IM.

8. The master of a vessel has a
right, in cases of necessity, to cor-
rect a negligent, disobedient or mu-
tinous seaman, by corporal punish-
ment. But the punishment must be
reasonable, and not inflicted with
unlawful instruments.

Carleton v, Davts, 221

9. When a seaman prosecates th^
master for an assault, and it is
proved that he has been guilty of a
fault which would, justify some pun-
ishment, to entitle himself to dam-
ages he must show that the punish-
ment was excessive in degree, or
unlawful in its kind.

See Owner, 2, 3, 4, 5, 8.

MATERIAL MEN.

1. By the general maritime law,
material men, who perform labor or
furnish materials for bnilding or re-
pairing a vessel, have, in addition to
the liability of the owner, a lien on
the vessel for their security. But
this principle of the maritime law
has never been adopted by the com-
mon law. The Calisto, 29

2. By the maritime law of the
United States, material men have a
lion on the vessel for supplies fur-
nished a foreign vessel, but not for
supplies for a domestic vessel. And
for the purposes of a lien, every ves-
sel is considered foreign, when in a
port of a State to which she does no^
belong. Ibid,

3. The statute of Maine, of Feb.
19, 1834, ch. 626, giving, to «<all

INDEX.

433

sbip-carpenters, caulkers, black-
smiths and joiners, and other per-
sons who perforin labor, or furnish
materials for, or on account of any
vessel building or standing on the
stocks, by rirtue of a written or pa-
rol agreement," a lien on the ressel,
does not include the case of a laborer
hired generally, and employed in
various work, so as to give him a lien
on the vessel, for his wages, for such
part of the time as he may have
been employed in work for the ves-
sel. Ibid,

4. By the general maritime law
of Europe, material men have a
privileged lien on a vessel, for re-
pairs and supplies furnished for the
vessel. But by the maritime laws
of this country, they have no lien
when the repairs are made, and the
supplies are furnished, for a vessel in
a port of the State to which she
belongs, unless it is allowed by the
local law. Dat^is v. Child, 71

0. Where the repairs are made, or
the supplies furnished, for a vessel
in a port of a State to which she
does not belong, she is considered a
foreign vessel, and the rule of the
general maritime law prevails. Ibid^

6. When the local law gives a
lien to material men and mechanics,
for their demands against a ship, it
may be enforced in the admiralty.

Hull of a New Ship, 199

7. AH the privileged creditors
may nnite in one libel, or if a libel
has been ftled by any one separately,
then others may come in by petition
and make themselves parties to the
suit. Ibid.

See Htpothxcatioh.

MISTAKE OF LAW.

Money paid by an agent under a
mistake of the legal obligation of his
principal, may, it teems, be recover-
ed back by the principal, in an ac-
tion for money bad and received.

United Statet v. BartUtt, 9

MONEY.

1. On a libel for salvage against
the savings of the wreck of a British

vessel and cargo, a sum of moneX
found upon the person of a passen-
ger, found on board the vessel
drowned, was ordered to be paid
over to the British Consul, for the
use of the heirs of the deceased,
after deducting the expenses of his
interment. The Ametkytt, 29

2. The identity of a sum of
money does not consist in the pieces
of coin but in the fund. If it is af-
fected by a trust, it may be followed
as long as the identity of the fund
can be traced, and whoever receives
it with notice will be affected by the
trust.

United States v. Waterborough, 154

3. A person who lends money to
be employed in the repairs of a ves-
sel, or to furnish her wiih supplies,
has the same privilege against the
vessel that material men have. He
is considered as giving credit both to
the ship and the owners.

Davis V. Child, 71

NAVY AGENT.

1. Under the act of Congress of
March 2, 1839, cb. 82, sect. 3, no of-
ficer of the United States, whose
salary or emoluments are fixed by
law and regulation, is entitled to
any extra allowance or compensa-
tion in any form for disbursements of %
public money, or other service, un-
less the same is authorized by law.

United States v. Jarvis, 27

2. In the construction of tempo-
rary statutes, as annual appropria-
tion acts, the presumption is that
any special provisions of a general
character, contained in such aets,
are intended to be restricted in their
operatiim to the subject matter of
the act, and they are not to be con-
strued to be permanent regulations,
unless the intention of making tbem
so is clearly expressed. IHd,

3. The power of an agent may
be revoked at any time by the prin-
cipal without notice, but if the
agent, in the prosecution of the
business of his principal, has fairly
and in good iaith, before notice of

434 INDEX

the rerocacioo of his powers, enter- port, are reipoDsiUe to shippers of

ed into any engagements, or come goods as common oarriers.

ttnder any liabilities, the principal TAc Huntmtf 88

will be bound to indemnify him. g, ^ shipper whose goods are lost

I^id, Of damaged by the faalt or neglect

4. So an agent, after accepting an of the roaster, within the scope of
agency, cannot renounce it at pleas- his duty as master, has, for hisdam-
ure, without notice, or good cause, ages, a remedy against the owners
but on the condition of rendering and a lien on the ship,

himself responsible for nny loss Thi WaJifo, 1^1

which may thereby be sustained by 3. By the common law, the own-

5. No one can change his will to tions contracted by the master,
the injury of another ^here mutual whether arising ex eoniractu or ex
rights and obligations exist between deliitOj within the scope of bis an-
the parties. /6td. thority as master, to their full extent.

6. These principles, baring their Stineon 9. Wymmm, 171
foundation in natural equity, apply 4. But by the general maiitime
as well between the government and law of Europe, their liability for his
an individual as when both parties obligations ex delicto, is limited to
are private persons. Jbid, the amount of their interest in the

The defendant was appointed ^^^P «n<* <»rgOi and by abandoning

Navy Agent for four years, but re- «l»e«o the/ •'« discharged fiom all

movable at any time within the four personal responsibility. IM.

years at the pleasure of the Presi- 4. The Revised Statates of Maine,

dent. He was removed six months Ch. 47, ^ 8, (and the act of 1821,

before the term expired, and without Ch. 14, ^ 8,) limit the responsibility

previous notice. Before his removal of the owners ** for any embezzle-

he had hired an office on a parol roent, loss, or destruction, by the

lease, the quarter terminating three master or mariners, of any goods or

days after his removal. Not having merchandise, or any property put on

given notice of his intention to quit, board a ship or vessel," to the

he became, by the local law, bound amount of their interest in the ship

for one quarter's rent. He had also and freight. The reason and policy

hired a clerk for the the year ter- of the act extend the exemption so

minating with the close of his as to include losses occasioned by

term. On dismissing his clerk, the negligence of the master or crew,

he paid him $200, or one quarter's as well as those directly caused by

salary after his discharge. It was their wrongful act. This construc-

held that these engagements having tion makes the act conformable to

been fairly and propeily made in ex. the general maritime law, and the

ecuting the business of his agency, owners by abandoning the ship and

the United States were bound to in- freight will be discharged from per-

demnify their agent, and that these sonal responsibility. Ibid.

charges were an equitabfe set-off g. if ^ ^03,^1 jg l^^ o„ a contract

under the act of March 3, 1797. of affreightment, by charter party,

NEGOTIABLE NOTE. ti^ fo, ^ j^gg occasioned by the rio.

See Seamen's Wages, 2, 3, 4. lence of the elements, altboagh the

NUL TIEL RECORD. dangeis of the seas are not expressly

excepted by the charter party.

See Pleading, 2, 4. The Brig Caeco, 184

OWNER OF VESSEL. 7. But if they are chargeable with

1. The owners of a steamboat, any neglect or fiiult without which

employed in carrying passengers the loss would not have happened,

and merchandise between port and they will be liable. Ibid.

IM0EK

430

6. When a TOMel m let to the
master, to be employed bjr him, and
he to paj to the owners a certain
portion of her earnings, the owners
will be liable to the seamen for their
wages, though bj agreement the
master ie to have the entire control
of the vessel, to victaal and man her,
and furnish supplies at his own ex-
pense ; unless, at the time of ship-
ping, this contract is made known to
them, and they are informed that
they are to look to the master as the
only owner.

Skolfleld V. PoUer, 393

9. The money that is paid over
by the master, is paid as freight,
and the owners as receivers, and
having an interest in the freight, are
liable to the seamen for their wages.

Ibid.

10. The freight is hypothecated
for the wages, and every part of the
freight is liable for the whole wages.
The owners, who have received
freight under such a contract with
the master, are liable for wages to
the full amount of the freight in
their hands, and not merely pro rata
in proportion to what they have re-
ceived. Ibid,

11. The merchandise is bound to
the ship for the freight, and the
freight to the seamen for the wages.

Ibid

12. When the owners of the ship
are also the owners of the cargo,
the cargo owes freight to the ship,
and this freight is pledged for the
wages. Ibid,

OWNER'S OATH.

See Ewbolmiht.

PAROL CONTRACT.

See Spxcifio PxapoaiiAROK, 3, 3, 4.

PARTNERSHIP.

1. A partnership may exist in a
single as well as in a series of trans-
actions. If there is a joint pur-
chase, with a Ttew to a joint sale
and a communion of profit and lose,
this will constitate a partnership.

In re Warren, 320

3. There may be a partaerthip Ui
buying and selling lands as well stil
merchandise ; and so fiir as tkitd
persons are concerned, it may b#
proved by the s^me evidence, tbougb,
as between the partners, it may ber
necessary to prove the partnership
by written evidence. Ibid,

3. Generally, when a member oi
a firm makes a note, or draws a bill,
in his own name, though it is knoira
to be on the partnership acoonnt, thm
firm will not be bound. Ibid*

4. But this rule does not prevail
where there is a secrat partner un-
known to the creditor. Ibid.

5. Nor when one of a firm hat
been in the habit of drawing and en-
dorsing bills in his own name for the
use of the firm, and the other part-
ners have treated them as binding
the firm. Ibid,

6. Where two persons, whd ara
partners, unite in drawing a bill or
making a note, though they siga
their several names and not that of
the firm, if it is in fact on the part-
nership account, it teeme that it will
be treated throughout as a partner-
ship security. Ibidm

7. On the dissolution of a partner-
ship, in cases of insolvency, the rol«
of Equity is, that the partnership
creditors have a preferred olaiui
against the assets of the firm, over
the separate creditors of the part-
ners, and the separate creditors hav«
a like preference over the partner-
ship creditors, against the separate
assets. Ibid.

8- This rule of Equity is estab-
lished as the rule of distribution, by
the 14th section of the Bankrupt
Law. I^id.

9. Whether, und*r the Bankrupt
Act^he creditors of a partnership can
be allowed to prove claims against
the separate estate of one of the
partners, (O receive dividends, in con-
ouirenoe with the separate creditors
of the paitner, when there is no
joint estate and no living lolveni
partner — Qussre f

In re Marwick, 339

4S6

INDIX

. 10. If there be any joint Aind,
however small, Bucb proof cannot
be allowed, altboagh such Aind may
bare been created by the separate
creditors purchasing some of the
partnership assets, actually worth-
leu, for the purpose only of creating
it ; for if there be a joint fund, the
Court cannot, under the statute, look
behind the fact, to inquire how it
Las been produced. Jbid,

PAYMENT.

8te Seamarks Wages, 1 to 4.

AppROPaiATioN OF Payments.

Specific Peefoemance, 4.

PEACE, BILL OF

See Equity, 3, 4, 5.

PENSION.

A. fraudulently obtained a pension
from the United States, and B. re-
ceived the money as the agent of A.
and retained $200 as a compensa-
tion for aiding in obtaining the pen-
aion. The town of Waterborougb
having a claim against A., the pen-
sioner, for support as a pauper, com-
menced an action against bim to re-
cover it, and summoned B. as gar-
nishee, the town having notice of the
fraud in obtaining the certificate.
The suit was compromised by the
payment of a certain sum. Held,
that the United States might recover
of the town the amount they
received in an action for money had
and received.

United Stattt v. Inhab. of Water'
borough, 154

PERPETUATE TESTIMONY, BILL
TO

Where a party cannot bring his
title to an immediate judicial exam-
ination, because his interest is future,
as in remainder, or because he is in
possession, the only bill, which can
be maintained, is a bill to perpetu-
ate testimony.

Shepley v. Rangelty^ 242

PETITION IN ADMIRALTY.

Set P&ACTICE, 1.

PLEADING.

1. A replication which allegei
two distinct and independent facu,
either of which is a complete an-
swer to the plea, is doable, and is
bad on special demurrer.

Bumkam v. Webster, 236

2. A former judgment is not
pleaded with a profert, but a profert
is tendered in reply to the replica-
tion of nul tiel record.. Ibid,

3. A plea of a foreign judgment
must contain an allegation that the
Court had jurisdiction, or so much of
the proceedings must be spread on
the record as will show affirmatively
that the Court had jurisdiction.

Ibid.

4. A foreign judgment is not con-
sidered as a record and a plea to
such judgment of nul tiel record is
bad. The opposite party may treat
the plea aa a nullity and take judg-
ment. Ibid.

5f<. Libel, 1, 2, 3.

MasTKR, 7.

POVERTY.

See Laches.

PRACTICE, (Admiralty).

1. Material men and mechanics,
having privileged claims against a
vessel, may unite in one libel, or if a
libel has been filed by any one sep-
arately, then others may come in by
petition, and make themselves par«
ties to the suit.

' Hull of a New Ship, 199

2. On a libel for a. marine tort, the
proofs must be confined to the mat-
ters that are put m issue by distinct
allegations in the libel and answer.

See Remittitue.

PRACTICE (Circuit Court, u. s.)

3. When there is an equal divi-
sion of opinion in the court, on a
motion for any rule or order, the
motion is not allowed and fails.

Goddard v. Coffin, 381

4. If the motion be such that an
affirmative decision is indiapensable

INDEX.

437,

to the progress of the cause, the
case stops, and the parties go out of
court. fbid.

5. If it be such as only arrests the
progress of the caase, and there is
an equal division, the motion, not
being allowed, is in effect overruled,
and the case proceeds as though no
motion had been made. Ibid.

6. When there has been a verdict
and a motion has been made for a
new trial on which the court is di-
vided, the motion is overruled, and
no new trial is allowed. But
whether judgment can be entered on
the verdict, or not, depends on the
state of the case when the motion is
made. Jbid.

7. If, after verdidt, there is any
rule or order, general or special, for
judgment nisi, no new motion being
made, the party, in whose favor the
verdict is, is entitled to judgment.

Jbid.

8. If there be no such general
rule, and no special order has been
made for judgment nisi, and the
court is equally divided on a motion
for a new trial, the case stands pre-
cisely as though no motion had been
made. Ibid,

9. The rendering of judgment is
a judicial act, and must be done by
the court, and the record must show
that it is the judgment of the court.

Ibid,

10. In this court, judgment is
rendered only' upon the motion of
the prevailing party. If no motion
is made, the case. stops. And upon
such a motion, the court being
equally divided in opinion whether
judgment should be rendered, it
ttenu that nothing can be done but
to dismiss the case without costs
and without prejudice. Ibid.

PREAMBLE.

The preamble of a statute cannot
control the enacting part of the law,
when the meaning is clear. But
when the language is ambiguous, or
may admit a larger or more restrict-
ed inteipretation, the preamble may

be referred to, to determine whiok
sense was intended by the Legists*
ture. UniUd Staiet v, Webtter, 38

PRE-EMPTION RIGHT.

Sca»AoENCT, 4, 5. ^

PROFERT.

See PuEADHfo, 2.

PUBLIC OFFICERS, FEES OF
See Navt Agent, 1. |

Inspector, 2, 3, 4.

QrARTB&MASTBR, 11.

QUARTERMASTER.

1. The duty ot a quartermaster it,
to provide supplies and necessaries
for the army. Under the general
laws relating to the service and ths
army regulations, his authority Im
restricted to furnishing supplies of a
particular description, and if ho fbr-
nishes other articles than such as mxm
allowed by law and usage, he ean-
not charge the United States with
them. United States v, Webeter, 38

2. The laws and usages of the
service restrict him as to the nature
of the claims against the United
States, arising out of the service,-
which he may settle and allow, and
if he settles and pays such as he it
not authorized to pay, such pay-
ment will not be a legal set-off in an
action by the United States against
him. Ibid, •

3. It is the doty of the quarter-
master to provide quarters, hoipitals,
provisions, &c., for the army, and
when obtained by contract he may
pay for them. But when taken by
impressment, whether he is author*
ized to settle and pay for them, by
law and the common usage of tho
army— Qusere. Ibid.

4. But such claims against the
United States, arismg during tho
Florida war, he had authority to ad*
just and settle by the act of May
28tb, 1836, ch. 32. Ibid.

5. The preamble of a statute can-
not control the enacting part of the
law when the meaning is clear ; but

488

INDSK.

vben tb« langntfe m ambignoiu and
mmj admit a larger or more restrict-
#d ioterpreutioo, the preamble majr
be referred to, to determine which
•ense was intended hj the Legisia-
lure. . Ibid.

6. The reason of this rule of in-
terpretation is, that it states the
reasons and objects of the law.

Ibid.

7. If the reasons and objects of the
law are made known bj any other

■ document eqoally authentic and cer-
tain, theae may for the same reason
be referred to, to aid in the inter-
pretation of doubtful or ambiguous
buguage in the law. Ibid,

8. The inlention of the act of
Hay 28, 1836, was to authorize the
quartermaster to a4ju8t and pay
■ueh daimf, against the United
States, as h# was not authorized to
•ettle and pay under the general
laws and osacM of the service.

Ibid.

9. Under this act, the quartermas-
ter was authorized to settle and pay
lor aiticles taken for the use of the
V. States, with the consent of the
owners, or by impressment without
their consent ; whether such as are
consumable, as provisions ; or not, as
horses, carriages,arms,&c.,and which
were lost by the accidents of the war.
The common principle of the law of
letting and hiring, by which, in a
loan for use, the lender runs the
risk of loss by extraordinary acci-
dents, does not apply to such a case.

Ibid,

10. But the law did not authorize
him to pay for special damage to a
house and grounds, occupied for
quarters for the officers and for an
eaoampment. Jbid,

11. Under the order of the War
Department of May 18, 1833, re-
peated in that of 1835, and making
the 56th art. in the Digest of De-
eember, 1836, the defendant is not
entitled to charge commissions on
his disbursements. Jbid.

RECEIPT.

8i€ Afpbopriation of

RITMITTITUR.

1. A remission of a forfeiture by
the Secretary of the Treasury, un-
der the act of March 3, 1797, ch. 13,
granted before a libel or information
has been filed, operates directly to
revest the right of property and
possession in the petitioner, and the
collector, on his presenting the war-
rant of remission, is bound to re-
store it. The Pah Jlto, 343

2. But, after the fiUng of a libel
or information, the property is in the
custody of the law, and the ooilee-
tor is the keeper of the Court. The
remittitur, being filed in Court, is a
bar to further proceedings to enforce
the forfeiture, and the Court will di-
rect the suit to be dismissed and is-
sue a precept to restore the property.
But the property being in the custo-
dy of the Court, the collector cannot
restore the possession without an or-
der of the Court. Jbid,

3. If the remission is on the pay.
ment of costs, this is a condition
precedent, and the remission is inop.
exative until the costs are paid.

4. A tender of the costs, after a
reasonable time allowed /or taxing
them, is equivalent to actual pay.
ment, to revest the right of pioperty
and possession. A neglect of the
collector, seasonably to furnish the
attorney with the cost of seizure and
custody, will not defeat or suspend
the right of the claimant to the pos-
session of the property. Jbid,

5. The Secretary has the power,
after a remittitur has been granted
and communicated to the claimant,
to revoke the warrant. Jbid.

QUIA TIMET.

See Equity, 1, 2.

6. If the remission is free and tin.
conditional, the power of revocation
continues after the remittitur is filed
and an order of restoration passed,
and until the precept is finally exe-
cuted by a delivery of the property
into the possession of the claimant.

Jbid,

7. The order of restoration, made
by the Court, is not properly a jodi-

INDEX.

439

ciml, bat » ministerial act. It is the
remission of the Secretary that re-
stores the right of property and pos-
session, and the order of the Court,
carrying that into effect, may be de-
manded by the claimant ex debito
juMiitia. ii,id,

8. If the remission be conditional,
he Secretary has no power to revoke

it after the condition has been per-
formed, whether the possession of
the goods has been delivered to the
claimant or not. Ibid.

9. AAer the remittitur has been
made known to the claimant, if the
Secretary revokes it, the revocation
is inoperative until the knowledge of
it is broDght home to the claimant ;
and if the condition has been per-
formed before he has knowledge of
the revocation, the rights of the
claimant become fixed, and the re-
mission is irrevocable. Ibid,

REVOCATION OF OFFER.

In all engagements formed inter
abeentei, by letters or messengers, an
offer, by one party, is made, in law,
at the time when it is received by
the other. Before it is received it
may be revoked. So the revocation,
in law, is made when that is received,
and has no legal existence before.
If the party, to whom the offer is
made, accepts and acts on the offer,
the engagement will be bindmg on
both parties, alihough, before it is
accepted, another letter or messen-
ger may have been despatched to
revoke it. The Palo Alto, 343

REVOCATION OF WARRANT.
See Rkmittitue, 5, 6, 8, 9.

REVOCATION OF AGENCY.

See Navy Agent, 3, 7.

RESTORATION, ORDER OF
See Remittitur, 2, 6, 7.

SALE OF VESSEL IN FOR.
EIGN PORT.

See Seaman, 1.

SALVAGE.
1. When property is left derelict

on the high teas, those who first
find and take possession of it, with
the intention of saving it, acquire a
right to the exclusive possession,
which others, who afterwards dis-
cover it, have no right to distnrb.

The Jmethyit, 20

2. The right of property, in goods
thus abandoned from necessity, is
not lost to the owners, and those
who find and undertake to save
them are bound in good faith to con-
sult the interest of the owners as
well as their own.* If they have
not sufficient force to effect the sal-
vage without great risk of the loss
of the goods, they caiTnot, consistent-
ly with the good faith which they
owe to the owners, refuse the assists
ance of others, who offer their aid,
and who may thus become entitled
as joint salvors to a share in the re-
ward. Ibid.

3. Money found on the person of
a passenger found on board a
wrecked vessel, drowned, is not sub-
ject to salvage.

The Jmethyit, 20, 29

4. In cases of salvage, the Court
has no authority to allow a reward
for saving life. This is a commoii
duty of humanity. But when the
saving of life is connected with the
saving of property, the Court may
consider it, in fixing the amount o
salvage. The Emblem, 61

5. The rights acquired by the
salvors are only in rem^ to be paid
by the property. They have no
claim in penonam against the own-
ers, if they choose to abandon the
goods. Ibid.

6. But if the property is deliver-
ed by the salvors to the owners, be-
fore a compensation for saving it
is made, the salvors may maintain a
libel til penonam for the salvage.

Ibid.

7. The Court can allow no sal-
vage for saving, from a wreck, billt
of exchanf^e or other papers, the
evidence of a debt, or of title ta
properly. /l«

See Seaman's Wages, 14, 15, 19.

442

mwsK,

proportion to what the/ haTe f«-
oeired.

26. The merchaDdisa ii booad to
the ship for the freight, and the
freight to the seamen for their wages.

27. When the owners of the ship
are also the owners of the cargo, the
cargo owes freight to the ship, and
this freight is pledged for the wages.

38. The decision in the case, Po-
kuui vs. the Spartan, reviewed and
affirmed.

SECRETARY OF THE TREAS-
URY.

See RxMiTiTva.

SHIPPER.

See Common CAEEiia, 1, 3.
Master, 2, 3, 4, 5.
Affeexohtment, 1.

SHIPPING ARTICLES.

See CoNTEACT, 6, 7.

SPECIFIC PERFORMANCE.

1. The Admiralty has not juris*
diction to enforce the specific per-
formance of an agreement relating
to maritime affairs.

Davis V. Child, 71

2. A specific execotion of a parol
eontract for the sale of lands will be
decreed by a Court of Equity, when
it has been partly performed.

Ex parte Storer, 294

3. But in the sense of Equity,
when a specific performance of such
a contract is sought, those acts only
are considered as part performance
which would operate as a fraud on
parties unless the whole contract is
executed. Ibid,

4. The payment of part of the
price is not such an act. But admit-
ting the purchaser to take possession
nnder the contract, and to lease the
land, or make improvements upon it,
is, in the sense of a Court of Equity,
a part performance. Ibid.

STATUTES, CONSTRUCTION
OF.

See CcNSTEUCTion.

STATUTE OF LIMITATIONS.
See LiMiTATxoiia.

STATUTES CITED, &c.
MAINE.

Feb. 19, 1834. Lien of mate-
mi OMD, &e. ^

Rer. Stat. Cb.l25, { 35. Same

subject. 1^

Rer. Stat. Ch. 47, { 8. Liabili-
ties of owners of vessels. 172

UNITED STATES.

1789.Sep. 24. Judiciary. 105

1793.Feb. 18. Enrolment. 9

1797.March 3. Set off. 2 8

" " •« Remittitur. 343

1799. - 2. i ^•f ^"« »*^.! 176
i#w. «. ^ without permit

1799.March 2.Forfeitnre. 370

1803.Feb. 28. Seaman 121

lol3.July 29. Fishing Bounty. 9

1815.Feb. 4. Officers' Fees, 370

1836.May28. Florida Claims. 38

1839.March2. OffieersTees. 271

1841. Bankruptcy. {^»*^

1846. Feb. ll.Officers' Fees. 370

STEAM VESSEL.

A vessel moved by steam is con-
sidered as always sailing with a fair
wind, and must in all cases give
way ifor a vessel moved'by the wind.

TAe Leopard, 193

Set Common Caeeiee.

SUBROGATION.

See Hypothecatioh, 5.

TACKLE, &c., OF VESSEL.

The tackle, apparel, and furniture
ol a foreign vessel, wrecked upon
our shores, and landed and sold sep-
arate from the Hull, are not goods,
Wares, and merchandise imported
into the United States, within the
meaning of the revenue laws.

The Gertrude, 176

TRUSTEE.

1. The principles on which Courts
of Equity charge trustees, assignees,
and executors, with interest on trust
money in their hands, are, that they
have either used it in their own bosi-

INDEX.

443

HAM, or improperly neglectod to in-
veti it. In re Tkorp, 290

3. Where thero hat been grots
neglect, the Court will ■ometimet
make annual rests, and charge them
with compound interest. Ibid.

3. If the trustee uses trust money
in trade, it is a breach of Uust, and
he will be charged with all the
profit he has made, but if there hat
been any loss, that must be borne by
himself. Ibid.

TRUSTS.

1. When property is transferred,
which is subject to a lien, or is af-
fected with a trust, with notict^ the
lien, or trust, follows it into the
hands of the assignee, and remains
attached to it as long as the identity
of the thing continues.

Vnittd StaUi v. WaUrborough, 154

2. The identity of a sum of
money, or a debt due, does not exist
in the pieces of coin, but in the
fund. If it is affected by a trust, it
may be followed as long as the iden-
tity of the fund can be traced, and
whoever receives it, with notice,
will be affected by the trust. Ibid.

3. The Admiralty, has no direct
jorisdietion over trusts, although
they may relate to maritime affiurs.
If a Libellant states a trust as the

ibnadatioa of hit tail, he statet
himself out of Court.

VERDICT.

See PaAcncK, 6 t» 10.

VESSEL.

See EHaoLMBRT.
Lisa.
Ssamah's Waobs.

iMPOaTATlOK.

Collision.

VOYAGE, DESCRIPTION OP
See CoNTEACT, 7.

WAGES.

See SsAMAN*s Wages.

WAR DEPARTMENT. ORDER
OF

See QUABTBBMASTBE, 11.

WIFE.

jfM Husband &WiFB.

WITNESS.

See EquiTT, 8, 9.

WRECK.

See Seaman's Wages, S to 10.

iMTOETATUm, 1» 2.

--'».

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Full text of "Reports of Cases Determined in the District Court of the United States for the District of Maine ..."

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