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ON
AMERICAN LAW.
BY JAMES KENT.
VOL. III.
TWELFTH EDITION,
EDITED BY
O. W. HOLMES, JR.
BOSTON:
LITTLE, BROWN, AND COMPANY.
1873.
•
Southern District of New York, ss.
BE IT REMEMBERED, That on the twenty-fifth day of November, A. D. 1826, in the fifty-first
year of the Independence of the United States of America, JAMES KENT, of the said dis-
[L. S.] trict, has deposited in this office the title of a Book, the right whereof he claims as author,
in the words following, to wit:
"Commentaries on American Law. By JAMES KENT. Vol. I."
In conformity to the Act of the Congress of the United States, entitled "An Act for the encourage-
ment of learning, by securing the copies of Maps, Charts, and Books to the authors and proprietors of
such copies, during the times therein mentioned." And also to an Act, entitled An Act, supplemen-
tary to an Act entitled An Act for the encouragement of learning, by securing the copies of Maps,
Charts, and Books to the authors and proprietors of such copies, during the times therein mentioned,
and extending the benefits thereof to the arts of designing, engraving, and etching historical and other
prints.
JAMES DILL,
Clerk of the Southern District of New York.
Entered according to the Act of Congress, in the year one thousand eight hundred and thirty-two, by
JAMES KENT, in the Clerk's Office of the District Court of the United States, for the Southern District.
of New York.
Entered according to the Act of Congress, in the year one thousand eight hundred and forty, by
JAMES KENT, in the Clerk's Office of the District Court of the United States, for the Southern District
of New York.
Entered according to the Act of Congress, in the year one thousand eight hundred and forty-eight,
by WILLIAM KENT, in the Clerk's Office of the District Court of the United States, for the Southern
District of New York,
Entered according to the Act of Congress, in the year one thousand eight hundred and fifty-one, by
WILLIAM KENT, in the Clerk's Office of the District Court of the United States, for the Southern Dis
trict of New York.
Entered according to the Act of Congress, in the year one thousand eight hundred and fifty-four, by
WILLIAM KENT, in the Clerk's Office of the District Court of the United States, for the Southern Dis-
trict of New York.
Entered according to the Act of Congress, in the year one thousand eight hundred and fifty-eight, by
WILLIAM KENT, in the Clerk's Office of the District Court of the United States, for the Southern Dis-
trict of New York.
Entered according to the Act of Congress, in the year one thousand eight hundred and sixty, by
WILLIAM KENT, in the Clerk's Office of the District Court of the United States, for the Southern Dis-
trict of New York.
Entered according to the Act of Congress, in the year one thousand eight hundred and sixty-six, by
MRS. WILLIAM KENT, in the Clerk's Office of the District Court of the United States, for the Southern
District of New York.
Entered according to Act of Congress in the year 1878, by JAMES KENT, in the Office of the Libra
rian of Congress, at Washington.
CAMBRIDGE:
PRESS OF JOHN WILSON AND SON.
CONTENTS.
1
PART V.
OF THE LAW CONCERNING PERSONAL PROPERTY.
(CONTINUED FROM THE SECOND VOLUME.)
LECTURE XLII. — Of the History of Maritime Law
1. Of the Maritime Legislation of the Ancients
2. Of the Maritime Legislation of the Middle Ages
3. Of the Maritime Legislation of the Moderns
LECTURE XLIII. — Of the Law of Partnership.
1. Of the Nature, Creation, and Extent of Partnerships .
AND HEREIN,
(1) Partnership in General .
(2) Of Dormant Partners
(3) Of Sharers in Profits
(4) Of Limited Partners.
(5) Of Joint Stock Companies
2. Of the Rights and Duties of Partners in their Relation to each Other,
and to the Public
Page
1
2
8
15
. 23
23
23
31
33
34
35
36
AND HEREIN,
(1) Of the Interest of Partners in their Stock in Trade .
. 36
(2) Stock in Land.
37
(3) As Ship Owners
39
(4) Acts by which One Partner may bind the Firm
40
(5) How far by Guaranty
46
(6) How far by Deed.
(7) How far by Admission of a Debt
(8) Dealing on Separate Account
8. Of the Dissolution of Partnership
AND HEREIN,
(1) Of Dissolution by Voluntary Act
47
49
51
. 52
$
(2) By Death
(3) By Insanity
53
55
58
5585
iv
CONTENTS.
(4) By Bankruptcy
•
(5) By Judicial Decree
(6) By the Inability of the Parties to act
(7) Consequences of the Dissolution
LECTURE XLIV. - Of Negotiable Paper
1. Of the History of Bills and Notes
2. Of the Essential Qualities of Negotiable Paper, as Bills, Notes, and
Checks.
3. Of the Rights of the Holder
4. Of the Acceptance
5. Of the Indorsement
6. Of the Demand and Protest
•
7. Of Notice to Drawer and Indorser
8. Of the Measure of Damages
9. Of Mercantile Guaranties
•
Page
58
60
62
•
62
71
71
74
78
82
88
93
104
•
115
121
124
•
. 129
130
133
139
151
•
10. Of the Principal Treatises on Bills and Notes
LECTURE XLV. Of the Title to Merchant Vessels
1. Requisites to a Valid Title
2. Who is Liable as Owner
3. Of Custom House Documents
4. Of Part Owners
LECTURE XLVI. — Of the Persons employed in the Navigation of Merchant Ships. 159
1. Of the Authority and Duty of the Master
AND HEREIN,
(1) His Power to bind the Owner, and the Owner's Power over
159
(4) Lien in England for Wages and Expenditures
(5) Lien in United States
him.
(2) Ship and Freight
(3) To hypothecate Ship, Cargo, and Freight
•
.
161
162
163
165
167
168
173
•
175
176
•
. 176
(6) Lien of Material Men
•
[(7) Power to sell Ship or Cargo]
(8) Duty to employ a Pilot
(9) Authority and Duty of the Mate
2. Of the Rights and Duties of Seamen
(1) Shipping Articles
(2) Charitable Relief
(3) Punishments
(4) Wages
1
(5) Pro Rata Wages
(6) Protection .
(7) Embezzlements
[(8) Salvage]
•
AND HEREIN,
[9] When Wages are Due.
[10] Desertion and Forfeiture of Wages
177
179
181
185
189
192
194
195
196
198
CONTENTS.
V
LECTURE XLVII.— Of the Contract of Affreightment
1. Of the Charter Party and its Conditions.
2. Of the Bill of Lading
3. Of the Carriage of Goods
Page
201
201
206
208
4. Of the Delivery of Goods
214
5. Of the Responsibility of the Ship Owner
216
6. Of the Duties of the Shipper
218
7. Of the Payment of Freight
8. Of Collision of Ships
9. Of General Average
10. Of Salvage
•
•
11. Of the Dissolution of the Contract
LECTURE XLVIII. · Of the Law of Marine Insurance
1. Of the Formation and Subject Matter of the Contract
219
230
232
245
248
253
253
AND HEREIN,
(1) Of the Parties
253
•
(2) Of the Terms and Subject of the Policy, and the Force of Usage
thereon
257
(3) Of Insurable Interests
262
AND HEREIN,
1. Of illicit trade.
2. Of contraband of war
3. Of seamen's wages
4. Of freight, profits, and commissions
5. Of open and valued policies
6. Of wager policies.
(4) Of Reassurance and Double Insurance
(5) Of Representation and Warranty
AND HEREIN,
1. Of representation.
2. Of warranty
(6) Of the Perils within the Policy
•
AND HEREIN,
•
1. Of the acts of the government of parties
2. Of interdiction of commerce.
3. Of risks excluded by the usual memorandum
4. Of the usual perils covered by the policy
2. Of the Voyage in Relation to the Policy.
AND HEREIN,
(1) When the Policy attaches and terminates
(2) Of Deviation
8. Of the Rights and Duties of the Insured in Cases of Loss.
(1) Of Abandonment.
AND HEREIN,
•
(2) Of the Adjustment of Partial Losses.
(3) Of the Return of Premium
4. Of the Writers on Insurance Law
. 262
267
269
•
269
272
275
278
282
. 282
287
291
. 291
• 293
294
299
307
307
312
318
. 318
335
340
342
V1
CONTENTS.
LECTURE XLIX. — Of Maritime Loans
(By Bottomry and Respondentia.)
LECTURE L. — Of Insurance of Lives, and against Fire
1. Of Insurance of Lives
Page
353
2. Of Insurance against Fire
• 865
365
870
AND HEREIN,
(1) Of the Interest in the Policy
871
(2) Of the Terms and Construction of the Policy
(3) Of the Adjustment of the Loss
372
375
CONTENTS.
vii
PART VI.
LECTURE LI. — Of the Foundation of Title to Land .
AND HEREIN,
(1) Government Grants .
(2) Title by Discovery
(3) Qualified Indian Rights
OF THE LAW CONCERNING REAL PROPERTY.
Page
377
377
379
380
(4) Right of Colonization
386
(5) Indian Rights, how regarded.
390
AND HEREIN,
1. By the colonists
890
2. By the United States
LECTURE LII. —Of Incorporeal Hereditaments
398
401
403
•
1. Of the Right of Common
AND HEREIN,
(1) Of Common of Pasture and of Estovers
404
(2) Of Common of Piscary
409
(3) Of the Remedy for the Disturbance of these Rights
418
2. Of Easements and Aquatic Rights . .
419
AND HEREIN,
(1) Of Ways
419
(2) Riparian Rights
(3) Highways
•
(4) Servitudes and Vicinage
(5) Party Walls
427
432
435
436
(6) Division Fences
438
(7) Running Waters
439
•
(8) Easements acquired and lost by Prescription
441
AND HEREIN,
1. Water.
441
2. Light
448
3. Air.
448
(9) Easements lost by Abandonment
448
(10) Easements by Dedication to the Public
450
(11) Rights by License
452
3. Of Offices.
454
viii
CONTENTS.
Page
4. Of Franchises
5. Of Annuities
458
460
6. Of Rents .
460
AND HEREIN,
(1) Of the Various Kinds of Rents.
(2) When and how far not Payable.
460
463
AND HEREIN,
1. Eviction.
2. Destruction of the premises
. 463
465
LECTURE LIII.
2. Of Feudal Tenures in England
3. Apportionment
(3) Of the Remedy
Of the History of the Law of Tenure.
1. Of Feudal Tenures on the Continent of Europe
3. Of Tenure in the United States
469
471
487
489
501
509
PART V.
OF THE LAW CONCERNING PERSONAL PROPERTY.
[CONTINUED FROM THE SECOND VOLUME.]
LECTURE XLII.
OF THE HISTORY OF MARITIME LAW.
BEFORE we enter more at large upon the subject of commercial
and maritime law, it may tend to facilitate and enlighten our
inquiries, if we take a brief view of the origin, progress, and suc-
cessive improvements of this branch of legal learning. This will
accordingly be attempted in the present lecture.
The marine law of the United States is the same as the marine
law of Europe. It is not the law of a particular country, but
the general law of nations; and Lord Mansfield applied to its
universal adoption the expressive language of Cicero, when
speaking of the eternal laws of justice: Nec erit alia lex
Romæ, alia Athenis; alia nunc, alia posthac; sed et omnes
gentes, et omni tempore una lex et sempiterna, et immortalis
continebit. (a)
*
*In treating of this law, we refer to its pacific character 2
as the law of commerce and navigation in time of peace.
The respective rights of belligerents and neutrals in time of war
constitute the code of prize law, and that forms a distinct sub-
ject of inquiry, which has already been sufficiently discussed in
a former volume. When Lord Mansfield mentioned the law-
merchant as being a branch of public law, it was because that
law did not rest essentially for its character and authority on the
positive institutions and local customs of any particular country,
(a) Frag. de Repub. lib. 3.
1
VOL II.
[1]
* 3
[PART V.
OF PERSONAL PROPERTY.
but consisted of certain principles of equity and usages of trade,
which general convenience and a common sense of justice had
established, to regulate the dealings of merchants and mariners
in all the commercial countries of the civilized world. (a)
1. Of the Maritime Legislation of the Ancients. Though the
marine law of modern Europe had its foundations laid in the juris-
prudence of the ancients, there is no certain evidence that either
the Phoenicians, Carthaginians, or any of the states of Greece,
formed any authoritative digest of naval law. Those powers
were distinguished for navigation and commerce, and the Athe-
nians in particular were very commercial, and they kept up a busy
intercourse with the Greek colonies in Asia Minor, and on the
borders of the Euxine and the Hellespont, in the islands of the
Ægean sea, and in Sicily and Italy. They were probably
the greatest naval power in all antiquity. Themistocles had the
sagacity to discern the wonderful influence and controlling ascen-
dency of naval power. It is stated by Diodorus Siculus, that he
persuaded the Athenians to build twenty new ships every year.
He established the Piræus as a great commercial emporium and
arsenal for Athens, and the cultivation of her naval superiority
and glory was his favorite policy; for he held the proposition
which Pompey afterwards adopted, that the people who were
masters of the sea would be masters of the world. (b) The
Athenians encouraged, by their laws, navigation and trade;
*3 and there was a particular jurisdiction at Athens for the
cognizance of contracts, and controversies between mer-
chants and mariners. There were numerous laws relative to the
rights and interests of merchants, and of their navigation; and
in many of them there was an endeavor to remove, as much as
possible, the process and obstacles which afflicted the operations
of commerce. Each state had its consul to protect and advance
the interests of commerce; and when a trader died abroad, it
*
(a) The law-merchant, says Blackstone, Comm. iv. 67, is a branch of the law
of nations, and is regularly and constantly adhered to. It is a branch of the law of
England, and those customs which have been universally and notoriously prevalent
amongst merchants, and found to be of public use, have been adopted as part of it
for the benefit of trade and commerce, and are binding on all without proof. Lord
Denman, in Barnett v. Brandaō, 6 Mann. & Gr. 665. The usage of merchants is
alluded to in sacred writ, as early as the time of Abraham, upwards of 1800 years
before the Christian era. He purchased the cave of Machpelah for four hundred
shekels of silver, current money with the merchant. Gen. xxiii. 16.
(b) Themist. Ilist. lib. 1; Cic. Epist. ad Atticum, lib. 10, epist. 8.
[2]
LECT. XLII.]
* 4
OF PERSONAL PROPERTY.
was part of the consul's duty to take charge of his property, and
transmit an account to his friends at Athens. In a pleading of
Demosthenes against Lacritus, we find the substance of a loan
upon bottomry, with all the provisions and perils appertaining to
such a contract carefully noted. (a) As a consequence of the
commercial spirit and enterprise of the Greeks, their language
was spoken throughout all the coasts of the Mediterranean and
Euxine seas. Cicero was struck with the comparison between
the narrow limits in which the Latin language was confined and
the wide extent of the Greek. (b) The universality and stability
of the Greek tongue were owing, no doubt, in a considerable
degree, to the conquests of Alexander, to the loquacity of the
Greeks, and the inimitable excellence of the language itself; but
it is essentially to be imputed to the commercial genius of the
people, and to the colonies and factories which they established,
and the trade and correspondence which they maintained through-
out the then known parts of the eastern world.
The Rhodians were the earliest people that actually created,
digested, and promulgated a system of marine law. They ob-
tained the sovereignty of the seas about nine hundred years
before the Christian era, and were celebrated for their naval
power and discipline. Their laws concerning navigation were
received at Athens, and in all the islands of the Ægean sea, and
throughout the coast of the Mediterranean, as part of the
law of nations. Cicero, who in early life studied rhetoric * at *4
Rhodes, says, (a) that the power and naval discipline of that
republic continued down within his time of memory, in vigor and
with glory.
We are indebted to the Roman law for all our
knowledge of the commercial jurisprudence of the Rhodians.
No only their arts and dominion have perished, but even their
nautical laws and usages would have entirely and for ever dis-
appeared in the wreck of nations had it not been for the superior
wisdom of their masters, the Romans; and one solitary title in
(a) Potter's Greek Antiq. i. 84; Voyage du jeune Anacharsis, v. c. 55; Mitf. Hist.
ii. 182-185. The profession of merchandise, says Plutarch, in his life of Solon, was
honorable in Greece. St. John's History of the Manners and Customs of Ancient
Greece, iii. c. 9, on the commerce of Attica, and c. 10, on Navigation.
(b) Græca leguntur in omnibus fere gentibus: Latina suis finibus, exiguis, sane,
continentur. Orat pro Archia Poeta, s. 5.
(a) Orat. pro Lege Manilia, c. 13.
[3]
OF PERSONAL PROPERTY.
[PART V.
the Pandects (b) contains all the fragments that have floated
down to modern times of their once celebrated maritime code.
The collection of laws, under the title of Rhodian laws, pub-
lished at Basle, in 1561, and at Frankfort in 1596, was cited as
genuine by such civilians as Cujas, Godefroi, Selden, Vinnius, (c)
and Gravina; and yet it has since been discovered and declared
by equally learned jurists, as Bynkershoek, (d) Heineccius, (e)
Emerigon, (ƒ) and Azuni, (g) that the collection of laws which
had been thus recognized as the ancient Rhodian laws (and
*5 of which a translation was given in the collection of * sea
laws published at London in the reign of Queen Anne) are
not genuine, but spurious. The emperor Augustus first gave a
sanction to the laws of the Rhodians, as rules for decision in
maritime cases at Rome; and the emperor Antoninus referred
one of his subjects, aggrieved by the plunder of his shipwrecked
property, to the maritime laws of Rhodes, as being the laws which,
he said, were the sovereign of the sea. (a) The Rhodian laws,
by this authoritative recognition, became rules of decision in all
maritime cases in which they were not contrary to some express
provision of the Roman law. They were truly, as Valin has
observed, the cradle of nautical jurisprudence.
We are, therefore, to look to the collections of Justinian for
all that remains to us of the commercial law of the ancients.
(b) Dig. 14. 2; De Lege Rhodia de Jactu. This law, De Jactu, is the only rule
that can be distinctly and authoritatively traced to the institutions of Rhodes.
(c) Peckii, Com. ad rem nauticam cum notis Vinnii. Lugd. 1647.
(d) Opera, ii. De Lege Rhodia, c. 8.
(e) Hist. Jur. Civ. Rom. ac Germ. lib. 1, s. 296.
(ƒ) Traité des Assurances, Pref.
(g) Maritime Law of Europe, i. 277–295, N. Y. ed. In the note to p. 286, William
Johnson, Esq, the learned translator of Azuni, detects many gross errors in the pre-
tended collections of Rhodian laws, contained in the English "Complete Body of Sea
Laws." Mr. Johnson's opinion is, of itself, of great authority; and his notes to his
translation of Azuni show a familiar and accurate acquaintance with legal and classical
antiquities. Yet, notwithstanding all the authority against the authenticity of that
collection, M. Boulay-Paty, in his Cours de Droit Commercial Maritime, i. 10–21,
does not hesitate to give a succinct analysis of that collection, as containing at least
the sense and spirit of the original laws, and as being an exposition of the true text.
M. Pardessus, in his Lois Mar. i. 336, has shown that this compilation of the Rhodian
laws belongs to the middle ages, and is a genuine compilation of the laws and usages
in the Mediterranean at that period.
(a) Dig. 14. 2. 9. Lord Stair, in his Institutions, says that the Lex Rhodia has
become by custom a law of nations, for its expediency to prevent shipwreck, and to
encourage merchants to throw out their goods.
[4]
LECT. XLII.]
*·6
OF PERSONAL PROPERTY.
The Romans never digested any general code of maritime regula-
tions, notwithstanding they were preeminently distinguished for
the cultivation, method, and system which they gave to their
municipal law. They seem to have been contented to adopt as
their own the regulations of the republic of Rhodes. The
genius of the Roman government was military, and not commer-
cial. Mercantile professions were despised; nothing was esteemed
honorable but the plough and the sword. They encouraged corn
merchants to import provisions from Sardinia, Sicily, Africa, and
Spain; but this was necessary for the subsistence of the inhab-
itants of Rome, as the slaves of Italy (and who were almost
exclusively the cultivators of the soil) did not afford a sufficient
supply for the city. The Romans prohibited commerce to per-
sons of birth, rank, and fortune; (b) and no senator was
allowed to own a vessel larger than a boat sufficient to *6
carry his own corn and fruits. (a) The navigation which
the Romans cultivated was for the purposes of war, and not of
commerce, except so far as was requisite for the supply of the
Roman market with provisions. (b) This is the reason, that
*
(b) Code, 4. 63. 3. The decree in the code speaks contemptuously of commerce,
and as being fit only for plebeians, and not for those who were honorum luce conspicuos,
et patrimonio ditiores. Even Cicero regarded commerce as being inconsistent with the
dignity of the masters of the world: nolo eundem populum imperatorem, et portitorem
esse terrarum.
The liberti or freedmen carried on the lucrative and mechanical trades.
and arts.
(a) Livy, lib. 21, c. 63; Dig. 50. 5. 3; Cicero, Orat. in Verrem, lib. 5, s. 18.
(b) Huet, Histoire du Com. et de la Navig. des Anciens, p. 278, 279. Polybius, in
his General History, b. 3, c. 3, gives the substance of a very remarkable commercial
treaty between Rome and Carthage, made the very first year after the banishment of the
Tarquins. It goes to prove that the Romans were then a great commercial people.
Polybius says he translated it from the original brazen tables existing in the capitol
in the apartment of the ædiles, and in a language so very obsolete as to be difficult
of interpretation. By that treaty neither the Romans nor their allies were to sail
beyond the far promontory which forms the eastern boundary of the Gulf of Carthage.
If forced beyond it, they were not allowed to take or purchase any thing, except
necessaries for refitting their vessels, and for sacrifice, and they were to depart within
five days. The object of this provision was to exclude the Romans and their allies
from trading with Egypt and the countries on the lesser Syrtis. But the Roman
merchants were to have free access to Sardinia, Sicily, Carthage, and the western
coast of Africa, and to pay no customs, but only the usual fees to the scribe and crier.
The sale of their cargoes was to be effected by public auction, and the public faith of
Carthage was pledged to the foreign merchant for his payment of the amount of such
sales. The Carthaginians engage, on their part, not to offer any injury to the Roman
allies in Italy, nor build any fortresses in the Latin territory. This treaty, as Niebuhr
sagaciously observes (History of Rome, i. 468), divulges the fact of the commercial
[5]
• 7
[PART V.
OF PERSONAL PROPERTY.
amidst such a vast collection of wise regulations as are embodied
in the Roman law, affecting almost every interest and relation of
human life, we meet with only a few brief and borrowed details
on the interesting subject of maritime affairs. But those
*7 titles atone for their brevity by their excellent sense of
practical wisdom. They contain the elements of those very
rules which have received the greatest expansion and improve-
ment in the maritime codes of modern nations. Whatever came
from the pens of such sages as Papinian, Paul, Julian, Labeo,
Ulpian, and Scævola carried with it demonstrative proofs of the
wisdom of their philosophy and the elegance of their taste. (a)
greatness of Rome before the expulsion of Tarquin; but the liberal and enlarged
spirit of commerce which inspired the Romans, under their kings, was soon after lost
in the passion for war and conquest. Mr. Hooke, in his Dissertation on the Credibil-
ity of the History of the First Five Hundred Years of Rome, very plausibly suggests,
that Polybius was probably mistaken in the date of this commercial treaty with Car-
thage, and it was made after the year 415, instead of the year 244, A. U. C. But as
Niebuhr and Mitford (Hist. of Greece, ii. 151), and Heeren, in his Reflections, &c.,
i. 485, assume the antiquity of the treaty, as stated by Polybius, to be correct, no
higher modern authority for that point can be produced. There was a second com-
mercial treaty between Rome and Carthage, 161 years after the other, and which is
also mentioned by Polybius, and it contains cautionary restrictions, and some fair and
liberal terms of commerce between those two great rival republics.
(a) It may be useful to cast the eye for a moment over the most material prin-
ciples and provisions in the Roman law, relative to maritime rights.
The title Nautæ, caupones, stabularii, ut recepta restituant (Dig. 4. 9), related to
the responsibility of mariners, inn and stable keepers; and we meet here with the
principle which pervades the maritime law of all modern nations, for it has been as
generally adopted and as widely diffused as the Roman law. Masters of vessels were
held responsible, as common carriers, for every loss happening to property confided
to them, though the loss happened without their fault, unless it proceeded from some
peril of the sea or inevitable accident; nisi si quid damno fatali contingit, vel vis major
contigerit. Ulpian placed the rule on the ground of public policy, as it was necessary
to confide largely in the honesty of such people, who have uncommon opportunity to
commit secret and impenetrable frauds. The master was responsible for the acts of
his seamen, and each joint owner of the vessel was answerable in proportion to his
interest.
The title Furti adversus nautas, caupones, stabularios (Dig. 47. 5), related to tho
same subject; and the owners and masters were therein held answerable for thefts
committed by any person employed under them in the ship. But the law distinguished
between thefts by mariners and by passengers, and the master was not liable for
thefts by the latter.
The title De exercitoria actione (Dig. 14. 1) treated of the responsibility of ship-
owners for the acts of the master. This, said Ulpian, was a very reasonable and
useful provision, for as the shipper was obliged to deal with masters of vessels, it was
right that the owner who appointed the master, and held him out to the world as an
agent worthy of confidence, should be bound by his acts. This responsibility extended
to every thing that the master did in pursuance of his power and duty as master. It
[6]
LECT. XLII.]
8
OF PERSONAL PROPERTY.
2. Of the Maritime Legislation of the Middle Ages. — Upon the
revival of commerce, after the destruction of the Western Empire
extended to his contracts for wages, provisions, and repairs for the ship, and for the
loan of money for the use of the ship. The owner was not responsible, except for
acts done by the master in his character of master; but if he took up money for the
use of the ship, and afterwards converted it to his own use, the owner was bound to
respond, for he first gave credit to the master. A case of necessity for the money
must have existed; and in that case only, the power to borrow came within the mas-
ter's general authority. The lender was obliged to make out, at his peril, the exist-
ence of such necessity; and then he was entitled to recover of the owner, without
being obliged to prove the actual application of the money to the purposes of the
voyage. So, if the master went beyond his ordinary powers, as, for instance, if he
was appointed to a vessel employed to carry goods of a particular description, as hemp
or vegetables, and he took on board shafts of granite or marble, the owner was not
answerable for his acts; for there were vessels destined on purpose to carry such
articles, and others to carry passengers, and some to navigate on rivers, and others to
go to sea. If several owners were concerned in the appointment of the master, they
were each responsible in solido for his contracts.
The title De Lege Rhodia de jactu (Dig. 14. 2) is the celebrated fragment of the
Rhodian law on the subject of jettison.
It was ordained that if goods were thrown overboard, or a mast cut away in a
storm, or other common danger, to lighten and save the vessel, and the vessel be
saved by reason of the sacrifice, all concerned must contribute to bear the loss, as it
was incurred voluntarily for the good of all, and it was extremely equitable that all
should ratably bear the burden according to the value of their property. There were
some reasonable limitations to the rule. It did not apply to the persons of the free
passengers on board, for the body of a freeman was said not to be susceptible of valu-
ation; and it did not apply to the provisions which were used in common. The goods
sacrificed were to be estimated at their actual value, and not at the anticipated profit;
but the goods saved were to be estimated, for the sake of the contribution, not at the
price for which they were bought, but at that for which they might sell.
The title De nautico fœnore (Dig. 22. 2; Code, 4. 33) regulated maritime loans.
The lender was allowed to take extraordinary interest, because he staked his principal
on the success of the voyage and the safety of the vessel, and took as his security a
pledge of the ship or cargo. The maritime interest ceased upon the arrival of the
vessel; and if she was lost by reason of seizure, for having contraband goods of the
debtor on board, the lender was still entitled to his principal and interest, because
the loss arose from the fault of the debtor.
The title De incendio, ruina, naufragio, rate, nave expugnata (Dig. 47. 9)
related to the plunder of vessels in distress; and it did great honor to the justice and
humanity of the Roman law. The edict of the prætor gave fourfold damages to the
owner, against any person who, by force or fraud, plundered a ship in distress. The
guilty persons were liable, not only to be punished criminally on behalf of the gov-
ernment, but to make just retribution to the aggrieved party; and the severity of the
rule, said Ulpian, was just and necessary, in order to prevent abuses in cases of such
calamity. The same provision was extended to losses by those means during a
calamity by fire. The law applied equally to the fraudulent receiver and original
taker of the shipwrecked articles, and he was held to be equally guilty.
This cursory view of the leading doctrines of the Roman maritime law (for I have
not thought it necessary to take notice of all the refined and intelligent distinctions)
[7]
*10
[PART V.
OF PERSONAL PROPERTY.
#9
*
The
of the Romans, maritime rules became necessary.
earliest code of modern sea laws was compiled for the
free and trading republic of Amalphi, in Italy, about the
time of the first crusade, towards the end of the eleventh century.
This compilation, which has been known by the name of the
Amalphitan Table, superseded the ancient laws; and its authority
and equity were acknowledged by all the states of Italy, though
the whole work has now passed into irretrievable obliv-
*10 ion. (a) Other states and cities began to form * collec-
tions of maritime law; and a compilation of the usages
and laws of the Mediterranean powers was made and published
under the title of the Consolato del Mare. This commercial code
is said to have been digested at Barcelona, in the Catalan tongue,
during the middle ages, by order of the kings of Arragon. The
Spaniards vindicated the claim of their country to the honor of
this compilation; and the opinion of Casaregis, who published
an Italian edition of it at Venice, in 1737, with an excellent com-
mentary, and of Boucher, who, in 1808, translated the Consolato
into French from an edition printed at Barcelona in 1494, are in
favor of the Spanish claim. (a) But the origin of the work is
so far involved in the darkness of those ages, as to render the
source of it very doubtful; and Azuni, in a labored article, (b)
endeavors to prove that the Consolato was compiled by the
Pisans, in Italy, during the period of their maritime prosperity.
Grotius, (c) on the other hand, and Marquardus, in his work, De
Jure Mercatorum, hold it to be a collection made in the time of
is sufficient to show how greatly the maritime codes of the moderns are indebted to
the enlightened policy and cultivated science of the Roman lawyers. The spirit of
equity, in all its purity and simplicity, seems to have pervaded those ancient institu-
tions.
(a) Azuni's Maritime Law, i. 376. Mr. Swinburne, who visited Amalphi, on his
excursion to the ruins of Pæstum, in 1779, found the city in great decay, with only
the wrecks of its former grandeur. Its trade withered with the loss of its liberty, and
passed to Pisa, Genoa, and Venice. It was conquered by the Normans, and plundered
by the Pisans, who carried away a copy of the Pandects found there, and we hear no
more of the Amalphitan Table, or of the high reputation of the maritime tribunals
of Amalphi. Swinburne's Travels in the Two Sicilies, ii. 138–150.
(a) Hallam, in his View of Europe during the Middle Ages, ii. 278, thinks the
reasoning of Boucher, in his Consulat de la Mer, i. 70-76, to be inconclusive, and
that Pisa first practised those usages, which a century or two afterwards were formally
digested and promulgated at Barcelona.
(b) Maritime Law, i. 326-372. Ed. New York.
(c) De Jure Belli et Pacis, lib. 3, c. 1, s. 5, note.
[8]
LECT. XLII.]
* 11
OF PERSONAL PROPERTY.
the crusades, from the maritime ordinances of the Greek emper-
ors, of the emperors of Germany, the kings of France, Spain,
Syria, Cyprus, the Baleares, and from those of the republics of
Venice and Genoa. (b) It was probably a compilation made by
private persons; but whoever may have been the authors of it,
and at whatever precise point of time the Consolato may have
been compiled, it is certain that it became the common law
of all the commercial powers of Europe. The marine *11
laws of Italy, Spain, France, and England were greatly
affected by its influence; and it formed the basis of subsequent
maritime ordinances. (a) It has been translated into the Cas-
tilian, Italian, German, and French languages; and an entire
translation of it into English has long been desired and called for
by those scholars and lawyers who were the most competent to
judge of its value. (b)
We are naturally induced to overlook the want of order and
system in the Consolato, and the severity of some of its rules,
and to justify Emerigon and Boucher in their admiration of the
good sense and spirit of equity which dictated its decisions upon
contracts, when we consider that the compilation was the pro-
duction of a barbarous age. (c) It is, undoubtedly, the most
authentic and venerable monument extant of the commercial
usages of the middle ages, and especially among the people who
were concerned in the various branches of the Mediterranean
trade. It was as comprehensive in its plan as it was liberal in
its principles. It treated of maritime courts, of shipping, of the
ownership and equipment of ships, of the duties and responsi-
bilities of the owners and master, of freight and seamen's wages,
of the duties and government of seamen, of ransoms, salvage,
(d) Boulay-Paty, in his Cours de Droit Commercial Maritime, i. 60, ingists that
Azuni has refuted Grotius and the other publicists on this point in a triumphant
manner.
(a) Casaregis, who was one of the most competent and learned of commercial
lawyers, says, in one of his discourses (Dis. 213, n. 12), that the Consolato had, in
maritime matters, by universal custom, the force of law among all provinces and
nations.
(b) There has been a translation of two chapters on prize by Dr. Robinson, and of
some chapters on the ancient or commercial courts, and on recaptures, inserted in
the 2d, 3d, and 4th volumes of Hall's American Law Journal.
(c) Bynkershoek, in his Questiones Jur. Pub. lib. 1, c. 5, praises the justice of
some of its rules, while he, at the same time, speaks disrespectfully and unjustly of
the work at large, as a farrago legum nauticarum.
[9]
* 12
[PART V.
OF PERSONAL PROPERTY.
jettisons, and average contributions.
It treated also of
* 12 maritime captures, and of the mutual * rights of neutral
and belligerent vessels; and, in fact, it contained the rudi-
ments of the law of prize. Emerigon very properly rebukes
Hubner for the light and frivolous manner in which he speaks
of the Consolato; and he says in return, that its decisions are
founded on the law of nations, and have united the suffrages of
mankind. (a)
The laws of Oleron were the next collection in point of time
and celebrity. (b) They were collected and promulgated in the
island of Oleron, on the coast of France, in or about the time of
Richard I. The French lawyers in the highest repute, such as
Cleirac, Valin, and Emerigon, have contended, that the laws of
Oleron were a French production, compiled under the direction
of Queen Eleanor, Duchess of Guienne, in the language of Gas-
cony, for the use of the province of Guienne, and the navigation
on the coasts of the Atlantic; and that her son, Richard I., who
was King of England as well as Duke of Guienne, adopted and
enlarged this collection. Selden, Coke, and Blackstone, on the
other hand, have claimed it as an English work, published by
Richard I. in his character of King of England. (c) It is a proof
of the obscurity that covers the early history of the law, that the
author of such an important code of legislation as the laws of
Oleron should have been left in so much obscurity as to induce
profound antiquaries to adopt different conclusions, in like
manner as Spain and Italy have asserted rival claims to the
origin of the Consolato. The laws of Oleron were borrowed
(a) Traité des Assurances, Pref.
(b) Mr. Justice Ware (Ware, 201) says that the laws of Oleron, at least in the form
in which we now have them, were a code earlier than the Consulate. But Cleirac
says, that when Queen Eleanor, on her return from the Holy Land, prepared the
project of the Laws of Oleron, the Customs of the Sea of the Levant, inserted in the
Consulate, were at the same time in vogue and in credit in all the East. Les Us et
Coutumes de la Mer, p. 2. The great authority and influence of the laws of Oleron,
as being the foundation of the maritime legislation and jurisprudence of the western
nations of Europe, have been illustrated with much ability by Mr. Justice Ware, in
his learned opinion in the case of the Dawn, as reported in the Am. Jurist for Octo-
ber, 1841 [xxvi. 216].
(c) The question is of no sort of moment to us at the present day; but it is quite
amusing to observe the zeal with which Azuni, Boucher, and Boulay-Paty engage in
the contest. They insist that the pretension, as they term it, of such men as Selden
and Blackstone was founded on a desire to flatter the English nation, and to deprive
the French of the glory of the composition of those nautical ordinances.
[ 10 ]
LECT. XLII.]
*13
OF PERSONAL PROPERTY.
from the Rhodian laws, and the Consolato, with alterations and
additions, adapted to the trade of Western Europe. They
* have served as a model for subsequent sea laws, and *13
have at all times been extremely respected in France, and
perhaps equally so in England, though not under the impulse of
the same national feeling of partiality. They have been admit-
ted as authority on admiralty questions in the courts of justice
in this country. (a)
The laws of Wisbuy were compiled by the merchants of the
city of Wisbuy, in the island of Gothland, in the Baltic sea, about
the year 1288. It has been contended by some writers, that these
laws were more ancient than those of Oleron, or even than the
Consolato. But Cleirac says, they were but a supplement to the
laws of Oleron, and constituted the maritime law of all the Baltic
nations north of the Rhine, in like manner as the laws of Oleron
governed in England and France, and the provisions of the Con-
solato on the shores of the Mediterranean. They were, on many
points, a repetition of the judgments of Oleron, and became the
basis of the ordinances of the Hanseatic League. (b)
(a) See Walton v. The Ship Neptune, 1 Peters Adm. 142; Natterstrom v. Ship
Hazard, in the District Court of Massachusetts, 2 Hall's L. J. 359; Sims v. Jackson, 1
Peters Adm. 157, all of which were decided on the authority of the laws of Oleron.
In 1647 it was resolved, by the popular government of Rhode Island, that the laws
of Oleron should be in force for the benefit of seamen. (Pitkin's History, i. 49.)
Cleirac published, in the middle of the seventeenth century, the laws of Oleron, in
his work entitled Les Us et Coutumes de la Mer, with an excellent commentary.
They were translated into English, with the notes of Cleirac, considerably abridged,
and published in the collection of sea laws made in the reign of Queen Anne. They
have likewise been published in this country, in the appendix to the first volume of
Peters's Admiralty Decisions, from the copy in the Sea Laws. There is likewise
annexed to these reports a copy of the laws of Wisbuy, of the Hanse Towns, and
of the marine ordinances of Louis XIV., and they have given increased interest to a
valuable publication.
(b) Cleirac, in his preamble to the ordinances of Wisbuy (Les Us et Coutumes de
la Mer, 136), gives from Johannes Magnus, and his brother, Olaus, the historians
of Sweden and the Goths, a very glowing account of the former wealth and com-
mercial prosperity of Wisbuy, the ancient capital of Gothland, and then a free and
independent city. In the eleventh and twelfth centuries it was the most celebrated
and flourishing emporium in Europe, and merchants from all parts came there to
traffic, and had their shops and warehouses, and enjoyed the same privileges as the
native inhabitants. In Cleirac's time, this bright vision had vanished, and the town,
with its trade and riches, was destroyed, and little was to be seen but heaps of ruins,
- the sad evidence of its former splendor and magnificence. Here is one ground for
the melancholy admonition of the poet, "That trade's proud empire hastes to swift
decay." But the logic of the muse is entirely refuted by the stability of commercial
[ 11 ]
* 15
[PART V.
OF PERSONAL PROPERTY.
*14
*The renowned Hanseatic association was begun at least
as early as the middle of the thirteenth century, and it
originated with the cities of Lubeck, Bremen, and Hamburg. The
free and privileged Hanse Towns became the asylum of commerce
and the retreats of civilization, when the rest of Europe was sub-
jected to the iron sway of the feudal system, and the northern
seas were infested by "savage clans and roving barbarians."
Their object was mutual defence against piracy by sea and pillage
by land. They were united by a league offensive and defensive,
and with an intercommunity of citizenship and privileges. The
association of the cities of Lubeck, Brunswick, Dantzic, and
Cologne commenced in the year 1254, according to Cleirac, and
in 1164, according to Azuni; and it became so safe and beneficial
a confederacy, that all the cities and large towns on the Baltic,
and on the navigable rivers of Germany, acceded to the union. (a)
One of the means adopted by the confederates to insure pros-
perity to their trade, and to protect them from controversies with
each other, was the formation of a code of maritime law. The
consuls and deputies of the Hanseatic League, in a general con-
vention at Lubeck, in 1614, added to their former ordinances of
1597, (or 1591, as Azuni insists), from the laws of Oleron and
of Wisbuy, and established a second and larger Hanseatic
*15 ordinance, under the title of the Jus Hanseaticum Mariti-
mum, and which was published at Hamburg, in 1667, with
a commentary by Kuricke.
*
This digest of nautical usages and regulations was founded
evidently on those of Wisbuy and Oleron; and from the great
power in other illustrious examples. The ancient paved streets, walls, towers,
churches, and other public edifices of Wisbuy, the sure evidence of the great com.
merce, prosperity, wealth, taste, and splendor of this city of the middle ages, still
partly exist in considerable preservation, and are objects of deep curiosity and vene-
ration. Mr. Laing, who recently visited this "mother of the Hanseatic cities,"
gives a very interesting account (Tour in Sweden in 1838) of its present desolate
condition, and of its varied and majestic ruins. Wisbuy has long been so insignifi-
cant, and so little visited by travellers, that it had almost disappeared from modern
geography; and Mr. Laing's account of it strikes us with somewhat of the fresh-
ness and novelty of the discoveries of magnificent ruins in the midst of Syrian and
Arabian deserts.
(a) The origin of the union of the Hanseatic League, others say, goes as far back
as 1241, when the free cities of Lubeck, Hamburg, and Bremen entered into a com-
pact to protect their political and commercial privileges. Lubeck was the tapital of
the confederacy.
[12]
LECT. XLII.]
* 16
OF PERSONAL PROPERTY.
influence and character of the confederacy, it has always been
deemed a compilation of authority. (a)
3. Of the Maritime Legislation of the Moderns. But all the for-
mer ordinances and compilations on maritime law were in a great
degree superseded in public estimation, their authority dimin-
ished, and their lustre eclipsed, by the French ordinance upon
commerce in 1673, which treated largely of negotiable paper;
and more especially by the celebrated marine ordinance of 1681.
This monument of the wisdom of the reign of Louis XIV., far
more durable and more glorious than all the military trophies won
by the valor of his armies, was erected under the influence of the
genius and patronage of Colbert, who was not only the minister
and secretary of state to the king, but inspector and general
superintendent of commerce and navigation. It was by the special
direction of that minister, and with a view to illustrate
*the advantages of the commerce of the Indies, that Huet *16
wrote his learned history of the commerce and navigation
of the ancients. (a) The vigilance and capacity of the ministry
of Louis communicated uncommon vigor to commercial inquiries.
They created a marine which shed splendor on his reign, and
corresponded in some degree with the extent of his resources.
It required such a work as the ordinance to which I have referred
to consolidate the establishment of the maritime power which had
been formed by the sagacity of his counsels.
(a) Les Us et Coutumes de la Mer, 157-165. Ward, in his History of the Law
of Nations, ii. 276-290, adduces proofs that the Hanseatic League exercised the rights
of sovereignty as a federal republic, and with considerable strength and vigor, until
the fifteenth century. No less than four commercial treaties were concluded between
England and the Hanse Towns in the space of three years, from the year 1472 to
1474. But the league was dissolved as soon as the great powers of Europe withdrew
their cities from the association; and the members of this confederacy are now
reduced to the cities of Lubeck, Hamburg, and Bremen. Rym. Fod. tom. ix. cited
in Henry's Hist. of Great Britain, b. 5, c. 6; Putter's Constitutional History of Ger-
many, ii. 208. Those Hanseatic cities had a diplomatic representative at Washing-
ton, in 1827, and in the year following a Convention of "Friendship, Commerce, and
Navigation between the United States and the free Hanseatic Republics of Luveck,
Bremen, and Hamburg," was concluded. Those free cities, including Frankfort-on-
the-Main, were recognized by the Congress of Vienna, in 1815, as having political exist-
ence, and on the principle that they were to be free emporiums, open to the trade of
all the world, on equal terms. But the growth and influence of the new German
Tariff League are now (1843) so rapid and preponderating, that it is very possible
the Hanse Towns may, erelong, be induced to join the Germanic League. Frankfort
is already included in the union.
(a) Hist. du Comm. et de la Navig. des Anciens, Pref.
[13]
* 17
[PART V.
OF PERSONAL PROPERTY.
That ordinance, says Valin, was executed in a masterly man-
ner. It was so comprehensive in its plan, so excellent in the
arrangement of its parts, so just in its decisions, so wise in its
general and particular policy, so accurate and clear in its details,
that it deserves to be considered as a model of a perfect code of
maritime jurisprudence. The whole law of navigation, ship-
ping, insurance, and bottomry was systematically collected and
arranged. It required the greatest extent of knowledge, and the
most correct discernment and liberality of views, to form and
execute such a work. It was necessary to examine the commer-
cial usages of all other nations, and select from amidst a con-
trariety of practice the most approved rules. It was necessary
to retrench that which was superfluous, to enlighten that which
was obscure, and to supply those things which had escaped the
observation of the earlier founders of nautical law, or been recom-
mended by the lights of experience. It is, however, an extraor-
dinary fact, that the able civilians, and perhaps the distinguished
merchants, who assumed the task of legislators, and compiled
this ordinance, are unknown to fame; and though the event be
of so recent a date, and occurred at the most polished and lit-
erary era in French history, neither letters nor gratitude nor
national vanity have been able to rescue their names from obliv-
ion. (b)
* 17
* Valin supposed he had discovered the source of the
materials of the ordinance in a curious and vast compila-
tion of ancient maritime laws, among the manuscript collections
in the library of the Duke of Penthievre. The compilation con-
sisted of the Rhodian and Roman law; of the Consolato, and of
the Use and Customs of the Sea; of the ordinances of Charles V.
and Philip II., kings of Spain; of the Judgments of Oleron; of
the ordinance of Wisbuy, and of the Teutonic Hanse; of the
insurance codes of Antwerp and Amsterdam; of the Guidon,
and of all the French ordinances prior to the year 1660. This
magnificent repository of commercial science is supposed to have
been the true and solid foundation of the fabric erected by artists
who had too much modesty to make their work the vehicle of
their own immortality. Every commercial nation has rendered
homage to the wisdom and integrity of the French Ordinance of
the Marine; and they have regarded it as a digest of the mari-
(b) Valin's Com. sur l'Ord. Pref. 4.
[14]
LECT. XLII.]
* 18
OF PERSONAL PROPERTY.
time law of civilized Europe. Valin has written a commentary
upon every part of it; and it almost rivals the ordinance itself
in the weight of its authority, as well as in the equity of its
conclusions. (a)
* In addition to these general codes of commercial legis- *18
lation, there have been a number of local ordinances of
distinguished credit, relating to nautical matters and marine insur-
ance, such as the ordinances of Barcelona, Florence, Amsterdam,
Antwerp, Copenhagen, and Königsberg. There have also been
several treatises on nautical subjects by learned civilians in the
several countries of Europe, which are of great authority and
reputation. (a)
The English nation never had any general and solemnly enacted
code of maritime law, resembling those which have been men
tioned as belonging to the other European nations, and promul-
gated by legislative authority. This deficiency was supplied, not
only by several extensive private compilations, (b) but it has been
more eminently and more authoritatively supplied by a series of
judicial decisions, commencing about the middle of the last cen-
(a) The ordinance has been translated and printed in England, and published in
the collection entitled Sea Laws; and it is annexed to the second volume of Judge
Peters's Admiralty Decisions in the District Court of Pennsylvania. It has been
redigested, with some few modifications and additions, in the new Commercial Code
of France of 1807; and that code was translated by Mr. Rodman, and published in
the city of New York in 1814. The commercial code was presented to the French
legislative body by the counsellors of state in 1807, as having been conceived,
meditated, discussed, and established, by the inspiration of the greatest man in history,
the Hero-Pacificator of Europe, while he was bearing his triumphant eagles to the banks of
the astonished Vistula; and yet, in contradiction to much of this adulation and incense,
the code will be found, upon sober examination, to be essentially a republication, in
a new form, of the ordinance of 1673, relative to negotiable paper, and of the mari-
time ordinance of 1681, digested under the orders of Colbert, and illustrated by the
commentaries of Valin. It is entitled, however, to the merit of some improvements
on the former ordinances, and of being more comprehensive in its plan and execu-
tion; for it embraces the subjects of partnership, common carriers, bankruptcy,
insolvency, and stoppage in transitu.
(a) These ordinances are collected by Magens, in the second volume of his Essay
on Insurances; and Mr. C. Cushing, in a learned note to his translation of Pothier
on Maritime Contracts of Letting to Hire, published at Boston in 1821, has alluded
to the most distinguished writers in Italy, Spain, Portugal, France, Holland, Ger-
many, and Sweden, on maritime law.
(b) Among the private treatises, the most distinguished are those of Malynes,
Molloy, Beawes, Postlethwayt, Magens, Wesket, Millar, Park, Marshall, Abbott,
Chitty, Holt, Lawes, and Benecke.
[ 15 ]
*19
[PART V.
OF PERSONAL PROPERTY.
*
tury. These decisions have shown, to the admiration of the
world, the masterly acquaintance of the English judiciary with
the principles and spirit of commercial policy and general juris-
prudence, and they have afforded undoubted proofs of the entire
independence, impartiality, and purity of the administration of
justice. The numerous cases in the books of reports which have
arisen upon maritime questions resemble elementary treatises in
the depth, extent, and variety of their researches, while
*19 they partake, at the same time, of the precision and
authority of legislative enactments. Lord Mansfield, at
a very early period of his judicial life, introduced to the notice
of the English bar the Rhodian laws, the Consolato del Mare,
the laws of Oleron, the treatises of Roccus, the laws of Wisbuy,
and, above all, the marine ordinances of Louis XIV., and the
commentary of Valin. These authorities were cited by him
in Luke v. Lyde, (a) and from that time a new direction was
given to English studies, and new vigor and more liberal
and enlarged views communicated to forensic investigations.
Since the year 1798, the decisions of Sir William Scott (now
Lord Stowell) on the admiralty side of Westminster Hall, have
been read and admired, in every region of the republic of
letters, as models of the most cultivated and the most enlight-
ened human reason. The English maritime law can now be
studied in the adjudged cases with at least as much profit, and
with vastly more pleasure, than in the dry and formal didactic
treatises and ordinances professedly devoted to the science. The
doctrines are there reasoned out at large, and practically applied.
The arguments at the bar, and the opinions from the bench, are
intermingled with the gravest reflections, the most scrupulous
morality, the soundest policy, and a thorough acquaintance with
all the various topics that concern the great social interests of
mankind.
Nor has our learned profession in this country been wanting in
the study and cultivation of maritime law. Our improvement
has been rapid and our career illustrious since the adoption of
the present Constitution of the United States. There have been
several respectable treatises on subjects of commercial law, some
of which we may notice when we are upon the branches to which
(a) 2 Burr. 882.
[ 16 ]
LECT. XLII.]
* 21
OF PERSONAL PROPERTY.
they are applied. The decisions in the federal courts, in commer-
cial cases, have done credit to the moral and intellectual charac-
ter of the nation; and the admiralty courts in particular
have displayed great *research, and a familiar knowledge *20
of the principles of the marine law of Europe. But I
should omit doing justice to my own feelings, as well as to the
cause of truth, if I were not to select the decisions in Gallison's
and Mason's Reports, as specimens of preeminent merit. They
may fairly be placed upon a level with the best productions of
the English admiralty for deep and accurate learning, as well as
for the highest ability and wisdom in decision.
The reports of judicial decisions in the several states, and espe-
cially in the states of Massachusetts, New York, and Pennsyl-
vania, evince great attention to maritime questions; and they
contain abundant proofs that our courts have been dealing largely
with the business of an enterprising and commercial people.
Maritime law in these states became early and anxiously an
object of professional research. If we take the reports of New
York in chronological order, we shall find that the first five
volumes occupy the period when Alexander Hamilton was a lead-
ing advocate at our bar. That accomplished lawyer (for it is in
that character only that I am now permitted to refer to him)
showed, by his precepts and practice, the value to be placed on
the decisions of Lord Mansfield. He was well acquainted with
the productions of Valin and Emerigon; and if he be not truly
one of the founders of the commercial law of this state, he may
at least be considered as among the earliest of those jurists who
recommended those authors to the notice of the profession, and
rendered the study and citation of them popular and familiar.
His arguments on commercial as well as on other questions were
remarkable for freedom and energy; and he was eminently distin-
guished for completely exhausting every subject which he dis-
cussed, and leaving no argument or objection on the adverse side
unnoticed and unanswered. He traced doctrines to their source,
or probed them to their foundations, and at the same time paid
the highest deference and respect to sound authority. The
reported cases do no kind of justice to his close and accu-
rate logic; to his powerful and comprehensive intellect, *to*21
the extent of his knowledge, or the eloquence of his illus-
[ 17 ]
VOL. III.
2
· 21
[PART V.
OF PERSONAL PROPERTY.
trations. We may truly apply to the efforts of his mind the
remark of Mr. Justice Buller, in reference to the judicial opin-
ions of another kindred genius, that "principles were stated, rea-
soned upon, enlarged, and explained, until those who heard him
were lost in admiration at the strength and stretch of the human
understanding."
[18]
LECT. XLIII.]
* 2-1
OF PERSONAL PROPERTY.
LECTURE XLIII.
OF THE LAW OF PARTNERSHIP.
PARTNERSHIP contracts have been found by experience to be
convenient to persons engaged in trade, and useful to the com-
munity. Merchants are thereby enabled to consolidate their
credit and extend their business. With the aid of joint counsel
and accumulated capital, a spirit of enterprise is sensibly awak-
ened, and boldness of plan and vigor of exertion communicated
to mercantile concerns. Partnerships have grown with the growth
and multiplied with the extension of trade; and the law by which
they are regulated has been improved by the study and adoption
of the best usages which the genius of commerce has introduced.
It has also been cultivated and greatly enlarged, under a course
of judicial decisions, until the law of partnership has at last
attained the precision of a regular branch of science, and forms
a distinguished part of the code of commercial jurisprudence.
In treating of this subject, I shall consider, (I.) The nature,
creation, and extent of partnerships; (II.) The rights and duties
of partners, in their relation to each other and to the public; (III.)
The dissolution of the contract.
I. Of the Nature, Creation, and Extent of Partnerships. (1) Part-
nership in General. - Partnership is a contract of two or more
competent persons, to place their money, effects, labor, and skill,
or some or all of them, in lawful commerce or business, and
to divide the profit and bear the loss, in certain propor- * 24
tions. (a) The two leading principles of the contract are
*
(a) Puffendorf, Droit de la Nat. liv. 5, c. 8, sec. 1; Pothier, Traité du Contrat de
Société, n. 1; Répertoire de Jurisprudence, art. Société; Story on Partn. pp. 8,
10-19, [§ 2, 7–15.] The French ordinance of 1673 required the contract of partner-
ship to be reduced to writing and registered; but that was the introduction of a new
rule; and the regulation had gone into disuse at the time of Pothier, though he con-
sidered it to be a sage provision. (Pothier, ib. n. 79, 82, 98.) The new French
commercial code has retained the regulation of the ordinance, and it requires an
abstract of the articles of partnership to be attested, and publicly registered; but the
[ 19 ]
* 25
[PART V.
OF PERSONAL PROPERTY.
a common interest in the stock of the company, and a personal
responsibility for the partnership engagements. The common
interest of the partners applies to all the partnership property,
whether vested in the first instance by their several contributions
to the common stock, or acquired afterwards in the course of the
partnership business; and that property is first liable for the
debts of the company; and after they are paid, and the partner-
ship dissolved, then it is subject to a division among the mem-
bers, or their representatives, according to agreement. If one
person advances funds, and another furnishes his personal ser-
vices or skill, in carrying on a trade, and is to share in the profits,
it amounts to a partnership. (6) But each party must engage to
bring into the common stock something that is valuable; and a
mutual contribution of that which has value, and can be
*25 appreciated, is * of the essence of the contract. (a) It
would be a valid partnership, notwithstanding the whole
capital was, in the first instance, advanced by one party, if the
other contributed his time and skill to the business, and although
his proportion of gain and loss was to be very unequal. It is
sufficient that his interest in the profits be not intended as a
mere substitute for a commission, or in lieu of brokerage, and
that he be received into the association as a merchant, and not
as an agent. (b)¹ A joint possession renders persons tenants in
1
omission, though injurious to the parties as between themselves, does not affect the
rights of third persons. (Code de Com. art. 39-44.) So, by the commercial ordi-
nances of Bilboa, confirmed by Philip V. in 1737, ed. N. Y. 1824, c. 10, sec. 4, it was
made necessary, in every partnership, to reduce the articles to writing, and acknowl-
edge them before a notary, and file a copy with the university and house of trade.
This would seem not to be now the general law in Spain; for it is admitted that
partnerships may be formed, as in the English law, tacitly as well as expressly.
(Institutes of the Civil Law of Spain, by Asso & Manuel, b. 2, c. 15, translated by
Johnston, London, 1825.) In Missouri, no person or copartnership shall deal as a
merchant without a license. R. S. of Missouri, 1835, p. 403.
(b) Dob v. Halsey, 16 Johns. 34; Story on Partn. 19, 39, [§ 15; Dale v. Hamilton,
5 Hare, 369, 393 |
(a) Pothier, Traité du Con. de Soc. n. 8, 9, 10; Ferrière, sur Inst. 3, 26; Code
Napoleon, No. 1833.
(b) Reid v. Hollinshead, 4 B. & C. 867. The test of partnership is a community
of profit, a specific interest in the profits, as profits, in contradistinction to a stipulated
1 Partnership as to Third Persons. — The
test of partnership as to third persons, and
the reasons given in Waugh v. Carver,
post, 27, n. (d), 32, n. (c), 1 Sm. L. C.adf.,
have been much discussed and broken in
upon, if not overthrown in England. It
is very truly said that creditors neither do
nor can rely on profits for payment, for
[ 20 ]
20]
LECT. XLIII.]
* 25
OF PERSONAL PROPERTY.
common, but it does not, of itself, constitute them partners, and,
therefore, surviving partners and the representatives of a deceased
portion of the profits as a compensation for services. Loomis v. Marshall, 12 Conn.
69; Champion v. Bostwick, 18 Wend. 175; Vanderburgh v. Hull, 20 id. 70; Lord
Eldon, Ex parte Hamper, 17 Ves. 404. See post, 34. Mr. Justice Story, on Part-
nership, p. 51 [§ 34,] considers that a share in the net, and not in the gross profits, is
here meant, to constitute a partner. 8. P. in Dry v. Boswell, 1 Camp. 330. To be a
partner, one must have such an interest in the profits as will entitle him to an account,
and give him a specific lien or preference in payment over other creditors. It is
not essential to a partnership that there should be a communion of interest in the
capital stock, and also in the profit and loss. If there be a community of profit, or of
profit and loss, in the adventure or business between the parties, they will be partners
in the profit and loss, though not partners in the capital stock. If, however, there
be no agreement between the parties on the point, the presumption will be a com-
munity of interest in the property as well as in the profit and loss. Ex parte Hamper,
17 Ves. 404; Story on Partn. 41, 42, 45, [§§ 27-29;] Reid v. Hollinshead, 4 B. & C.
867. The Roman law made the same distinction between a partnership in the capital
stock and a partnership in the profit and loss arising from the sale. Dig. 17. 2. 58;
Vinnius, ad Inst. 3. 26. 2, n. 3. There is also a distinction between a stipulation for
a compensation for labor, proportioned to the profits, without any specific lien upon
such profits, and which does not make a person a partner, and a stipulation for an
interest in such profits, which entitles the party to an account as a partner. 1 Rose,
91; Carey on Partn. 11, n. 1; and this Mr. Chancellor Walworth held to be a sound
distinction as regards the rights of third persons. 18 Wend. 184, 185; and Mr. Justice
Wilde, in Denny v. Cabot, 6 Met. 82. See, also Story on Partn. pp. 49, 56-59, [§§ 32,
38 et seq.] It is further a general principle in partnerships, that no one partner
is entitled to compensation for his services to the firm, nor for interest upon moneys
advanced to or deposited with the firm, for its use, without a special agreement, or
some very peculiar circumstances to justify it. Lee v. Lashbrooke, 8 Dana, 214, and
infra, p. 37, n.
profits do not exist until creditors are
paid. In fact, what a creditor does rely
on as a fund for payment are the gross
returns, not the net profits. Yet it has
been declared, that one who shares gross
returns is not, while one who shares net
profits is, a partner. See Mr. Gray's
notes to Story on P., § 36 and § 49. Tes-
timony of Mr. Commissioner Fane before
a committee of the House of Commons;
Lindley on P., 40, n. (l), 1st ed. It has been
said that the true question is, whether the
trade is carried on on behalf of the person
sought to be charged as a partner, the
participation in profits being a most im-
portant element in determining that ques-
tion, but not being in itself decisive. The
test is whether it is such a participation
of profits as to constitute the relation of
principal and agent between the person
taking the profits and those actually car-
rying on the business. Cox v. Hickman,
8 H. L. C. 268, 306, 313; Bullen v. Sharp,
L. R. 1 C. P. 86, 112; Kilshaw v. Jukes,
3 Best & S. 847; Re English & Irish
Church & Un. Ass. Soc., 1 Hem. & M. 85,
106; Shaw v. Galt, 16 Ir. C. L. 357. In
Holme v. Hammond, L. R. 7 Ex. 218,
post, 33, n. 1, however, some of the judges
expressed dissatisfaction with this test
also, considering that the agency is to be
deduced from the partnership, and not
the partnership from the agency. See,
further, Heap v. Dobson, 15 C. B. n. s.
460; Easterbrook v. Barker, L. R. 6 C. P.
1, 11.
Arrangements for pooling profits, that
is, for putting the net profits of different
[ 21 ]
* 25
[PART V.
OF PERSONAL PROPERTY.
partner are not partners, notwithstanding they have a community
of interest in the joiut stock. (c) There must be a communion
of profit to constitute a partnership as between the parties,
though it is not necessary that there should be a community of
interest in the property itself. They must be not only jointly
concerned in the purchase, but jointly concerned in the future
sale. A joint purchase, with a view to separate and distinct sales.
by each person on his own account, is not sufficient. If several
persons, who have never met and contracted together as part-
(e) Pearce v. Chamberlain, 2 Ves. 33. But a stipulation at the commencement
of the partnership, that the personal representatives of a partner should succeed him
in the partnership, is held to be valid and binding by the common law, and by the
French and Scotch law. Collyer on Partn. b. 1, c. 1, pp. 5, 6; Code Civil Franc. de
Société, 433, 434, [n. 1868;] Bell's Com. 620; though it was otherwise in the Roman
law. Dig. lib. 17, tit. 2. 1. 35; Story on Partn. p. 7, [§ 5.]
concerns together at the end of a certain
time, and dividing them in a certain pro-
portion irrespective of the amounts con-
tributed, have been held not to create
partnerships. And this seems to be best
explained by the modern English doc-
trines, on the ground that the several
parties continue to carry on their business
on their own behalf alone, although they
have bound themselves to pay over a
part of what they make. Fay v. David-
son, 13 Minn. 523; Smith v. Wright, 5
Sandf. 113; Connolly v. Davidson, 15
Minn. 519; Snell v. De Land, 43 Ill. 323.
See Merrick v. Gordon, 20 N. Y. 93
(distinguishing Champion v. Bostwick,
sup. n. (b).) So a loan stipulating for a
share of profits, if the business proves
profitable, in lieu of interest, or for a
commission on profits, has been held not
to create a partnership. Gibson v. Stowe,
43 Barb. 285; Williams v. Soutter, 7
Iowa, 435; St. 28 & 29 Vict. c. 86, § 1.
See Lintner v. Milliken, 47 Ill. 178. But
there are strong decisions the other way.
Sheridan v. Medara, 2 Stockt. 469; Mc-
Donald v. Millaudon, 5 La. (Miller) 403;
Wood v. Vallette, 7 Ohio St. 172; Pier-
son v. Steinmyer, 4 Rich. 309; Parker v.
Canfield, 37 Conn. 250.
See, further, Owens v. Mackall, 23
Md. 382; post, 33, n. 1, on executors.
Also, Edwards v. Tracy, 62 Penn. St.
374, 381; post, 34, n. 1, on agents.
In many American cases, however, it
is laid down that although a person not
actually a partner cannot be held liable
as such to third persons who know that
he is not a partner, he is liable as a part
ner to third persons who do not know the
facts, if by the agreement under which
the business is carried on he has an in-
terest in a certain share of the profits as
profits, and a lien on the whole profits as
security for his share. Supra, n. (b);
Pratt v. Langdon, 97 Mass. 97, 12 Allen,
544; Holmes v. Old Colony R.R., 5 Gray,
58; Berthold v. Goldsmith, 24 How. 536,
543; (compare Bigelow v. Elliot, 1 Cliff.
28, 37;) Catskill Bank v. Gray, 14 Barb.
471; Manhattan B. & M. Co. v. Sears, 45
N. Y. 797; Voorhees v. Jones, 5 Dutch.
270; Reynolds v. Hicks, 19 Ind. 113;
Wright v. Davidson, 13 Minn. 449; Chap-
line v. Conant, 3 W. Va. 507. And see
Niehoff v. Dudley, 40 Ill. 406, 409; Hal-
let v. Desban, 14 La. An. 529; Fay v.
Davidson, 13 Minn. 523. The cases which
seem to go farthest are Bromley v. Elliot,
38 N. H. 287; Bigelow v. Elliot, sup.
Wood v. Vallette, 7 Ohio St. 172. See Pier-
son v. Steinmyer, 4 Rich. (S. C.) 309, 319.
[ 22 ]
LECT. 'XLIII.]
* 26
OF PERSONAL PROPERTY.
ners, agree to purchase goods in the name of one of them only,
and to take aliquot shares of the purchase, and employ a common
agent for the purpose, they do not, by that act, become partners,
or answerable to the seller in that character, provided they are
not to be jointly concerned in the resale of their shares, and
have not permitted the agent to hold them out as jointly answer-
able with himself. (d) The same distinction was known in the
civil law; qui nolunt inter se contendere, solent per nuntium
rem emere in commune; quod a societate longe * remotum. (a)
It has been repeatedly recognized in this country, and may
be considered as a settled rule. (b)
*
26
If the purchase be on separate and not on joint account, yet
if the interests of the purchasers are afterwards mingled with a
view to a joint sale, a partnership exists from the time that the
shares are brought into a common mass. (c) A participation in
the loss or profit, or holding himself out to the world as a part-
ner, so as to induce others to give credit on that assurance,
renders a person responsible as a partner. (d) A partnership
necessarily implies a union of two or more persons; and if a
single individual, for the purpose of a fictitious credit, was to
assume a copartnership name or firm, the only real partnership
principle that could be applicable to his case would be the pref-
erence to be given to creditors dealing with him under that
description, in the distribution of his effects. But that would be
inadmissible, and contrary to the grounds upon which partner-
ships are created and sustained; and so the law on this point
has, in another country, been understood and declared. (e) If
the partnership consists of a large unincorporated association, or
joint-stock company, trading upon a joint stock, it is usually
regulated by special agreement; but the established law of the
(d) Hoare v. Dawes, Doug. 371; Coope v. Eyre, 1 H. Bl. 37; Gibson v. Lupton, 9
Bing. 297.
(a) Dig. 17. 2. 33.
(b) Holmes v. United Insurance Company, 2 Johns. Cas. 329; Post v. Kimberly,
9 Johns. 470; Osborne v. Brennan, 2 Nott & M'Cord, 427; Harding v. Foxcroft, 6
Greenl. 76.
(c) Sims v. Willing, 8 Serg. & R. 103. [Compare Heap v. Dobson, 15 C. B. N. 8.
460.]
(d) Lord Ellenborough, M'Iver v. Humble, 16 East, 173; Olmstead v. Hill, 2 Ark.
316.
(e) Nairn v. Sir William Forbes, Bell's Commentaries on the Law of Scotland,
ii. 625
[ 23 ]
* 27
[PART V.
OF PERSONAL PROPERTY.
land, in reference to such partnerships, is the same as in ordinary
cases, and every member of the company (whatever private
arrangement there may be to the contrary between the members,
and which is only a mischievous delusion) is liable for all the
debts of the concern. (f) It is, however, the judicial lan-
* 27 guage * in some of the cases, (a) ¹ that the members of a
1
(ƒ) The King v. Dodd, 9 East, 516; Holmes v. Higgins, 1 B. & C. 74; Hess v.
Werts, 4 Serg. & R. 356; Carlen v. Drury, 1 Ves. & B. 157; Keasley v. Codd, cited
in a note to the case of Perring v. Hone, 2 Carr. & P. 401; Vigers v. Sainet, 13 La.
300; Williams v. Bank of Michigan, 7 Wend. 542; Walburn v. Ingilby, 1 My. & K.
61; The Douglas Bank, 2 Bell's Comm. 623. Lord Ch. Hart observed, in Ex parte
Sneyds, 1 Molloy, 261, that joint-stock companies were bodies of comparatively
modern invention, to which statute gives the right to sue and be sued by their officers;
and now, by the statute of 1 Vict. c. 73, authorizing the formation of joint-stock com-
panies, the crown in England is authorized, by letters patent, to grant to companies,
though not incorporated, the privileges of incorporated companies, and suits may be
carried on in the name of one of the officers of the company. The patent may declare
the individual responsibility of the members for contracts to the extent of their shares.
Again, by the statute of 7 and 8 Vict. c. 110, 111, and 113, provision is made for the
registration of all joint-stock companies, by a registrar at the board of trade, with
the qualities and incidents of corporations; and such companies may, in cases of insol-
vency, wind up their concerns, as in cases of bankruptcy. Joint-stock banks must
be created by letters patent; and if such companies be incorporated, the liability of
the shareholders is not to be limited thereby. By the statute of 7 Geo. IV. c. 46, for
regulating copartnerships of certain bankers, it was declared, that on judgment against
a registered officer of the company, execution may issue against any members for
the time being; and if the debt cannot be levied on them, the former members may
be subjected to execution by leave of the court, by process of scire facias, and they
are only secondarily liable. Eardley v. Law, 12 Ad. & El. 802.
(a) Gibson, J., Hess v. Werts, 4 Serg. & R. 361; Platt, J., Skinner v. Dayton, 19
Johns. 537.
1
¹ Joint Stock Companies. — The Lord
Justice James in Baird's Case, L. R. 5 Ch.
725, 734, explains the difference between
these companies and partnerships.
It may be mentioned in this connection
that in England companies are authorized
to be formed by executing and register-
ing a deed under the hand and seal of
the members, which determines the ob-
jects of the company, and the extent of
its powers and of the members' liability.
It is well settled that parties dealing with
these companies are bound to know the
contents of their deed of settlement.
Kearns v. Leaf, 1 Hem. & Mil. 681, 706;
5 Am. Law Rev. 286, 287; Royal British
Bank v. Turquand, 6 El. & Bl. 327, 332;
Balfour v. Ernest, 5 C. B. N. s. 601, 623;
Ex parte Chippendale, Re German Mining
Co., 4 De G., M. & G. 19, 51; Ex parte
Eagle Ins. Co., 4 Kay & J. 549; Ernest v.
Nicholls, 6 H. L. C. 401, 419; In re Lon-
don, Hamburgh, & Continental Exch.
Bank, L. R. 9 Eq. 270. But how far the
members' liability to strangers for acts
within the powers of the directors can be
limited, is a more difficult question. It
was thought that it could not be limited
in Greenwood's Case, 3 De G., M. & G.
459, 476; which was decided before
the above principle was settled, but is
cited Hill's Case, Jones's Case, L. R. 9
Eq. 605, 611; and it seems to be approved
in Lind. on P. 2d ed. 339; Gordon v. Sea
.
[24]
LECT. XLIII.]
* 27
OF PERSONAL PROPERTY.
private association may limit their personal responsibility, if
there be an explicit stipulation to that effect made with the
party with whom they contract, and clearly understood by
him at the time. But stipulations of that kind are looked
upon unfavorably, as being contrary to the general policy of
the law; and it would require a direct previous notice of the
intended limitation to the party dealing with the company, and
his clear understanding of the terms of the limitation. (b) In-
corporated companies, though constituted expressly for the pur-
poses of trade, are not partnerships, or joint traders, within the
purview of the law of partnership, and the stockholders are not
personally responsible for the company's debts or engagements,
and their property is affected only to the extent of their interest
in the company. To render them personally liable requires an
express provision in the act of incorporation; and a disposition
to create such an extended responsibility seems to be increasing
in our country, and is calculated to check the enterprise of such
institutions, and impair the credit and value of them as safe
investments of capital.
A contract of partnership need not be in writing. Though
there be no express articles of copartnership, the obligation of a
partnership engagement may equally be implied in the acts of
(b) It seems to be still an unsettled point, whether a stipulation in the articles of
association, limiting the responsibility of the members to the mere joint funds, or to a
qualified extent, be binding upon the creditors dealing, with notice of the stipulation.
Mr. Justice Story inclines to the opinion, that the creditor acting with the knowledge
of it would be bound by it. Story on Partn. [§ 164]. Unless the creditor has previous
notice of the stipulation, he certainly would not be bound by it. Blundell v. Winsor,
8 Sim. 601; Walburn v. Ingilby, 1 My. & K. 61, 76. If he has that notice, I think he
ought, on general principles, to be bound by it.
In joint-stock companies in Scotland, the law in relation thereto is, that each part-
ner is liable only to the extent of his shares, and not in solido. 2 Bell's Comm. 627,
628. This was the doctrine in the Roman law as to all partnerships, and is also the
rule in France, except as to commercial partnerships. Dig. 45. 2. 11. 1, and 2;
Pothier, de Société, n. 96, 103, 104. In a private commercial association, where it is
agreed that the business shall be conducted by a president and directors, and they be
chosen, no individual partner can bind the firm, for he has no authority. Lambeth
v. Vawter, 6 Rob. (La.) 128. But generally, in the case of joint contracts, a release
or settlement of the debt by one, is good as against all the creditors, in cases free
from fraud. Wallace v. Kelsall, 7 M & W. 264.
Fire Life Ass. Co., 1 Hurlst. & N. 599.
See Hallett v. Dowdall, 18 Q. B. 2;
Forbes v. Marshall, 11 Exch. 166, 179.
But compare Bromley v. Elliot, 38 N. H.
287, 303.
[ 25 ]
# 28
[PART V.
OF PERSONAL PROPERTY.
the parties; and if persons have a mutual interest in the profits
and loss of any business carried on by them, or if they hold
themselves out to the world as joint traders, they will be held
responsible as partners to third persons, whatever may be the
real nature of their connection, or of the agreement under which
they act. Actual intention is requisite to constitute a partner-
ship inter se. (c) If a person partakes of the profits, he is
answerable as a partner for losses, on the principle that, by tak-
ing a part of the profits, he takes from the creditors a part of
the fund which is the proper security for the payment of their
debts. (d) 2
* 28
* It is not essential to a legal partnership that it be con-
fined to commercial business. It may exist between attor-
neys, conveyancers, mechanics, owners of a line of stage-coaches,
artisans, or farmers, as well as between merchants and bank-
ers. (a) The essence of the association is, that they may be
jointly concerned in profit and loss, or in profit only, in some
honest and lawful business, not immoral in itself, nor prohibited
by the law of the land; and this is a principle of universal
reception. (b) The contract must be for the common benefit of
all the parties to the association; and though the shares need
not be equal, yet, as a general rule, all must partake of the profit
in some ratable proportion; and that proportion, as well as the
mode of conducting the business, may be modified and regulated
by private agreement, at the pleasure of the parties. (c) If
there be no such agreement on the subject, and no evidence to
the contrary, the general conclusion of the law is, that the part-
(c) Hazard v. Hazard, 1 Story, 371.
(d) Voet, Com. ad Pand. 17. 2. 1; De Grey, C. J., Grace v. Smith, 2 W. Bl. 998 ;
Eyre, C. J., Waugh v. Carver, 2 H. Bl. 247; Cheap v. Cramond, 4 B. & Ald. 663;
Peacock v. Peacock, 16 Ves. 49; Spencer, J., Dob v. Halsey, 16 Johns. 40. Supra, 26, n.
(a) Willett v. Chambers, Cowp. 814; Gould, J., Coope v. Eyre, 1 H. Bl. 43;
Pothier, Traité de Soc. n. 55; Fromont v. Coupland, 2 Bing. 170. Associations for
buying or selling personal property as factors or brokers, or for carrying personal
property for hire in ships, are in the Louisiana Code, art. 2796, termed commercial
partnerships. There may be a partnership to trade in land, and limited to purchas-
ing, and the profit and loss divisible as stock. This result does not necessarily follow
from a joint purchase. Campbell v. Colhoun, 1 Penn. 140.
(b) Dig. 18. 1. 35. 2; Pothier, Traité du Con. de Soc. n. 14; Biggs v. Lawrence, 3
T. R. 454; Aubert v. Maze, 2 Bos. & P. 371; Griswold v. Waddington, 16 Johns. 489.
(c) Collyer on Partn. 11; Gow on Partn. 9; Story on Partn. [§§ 23, 24.]
2 Ante, 25, n. 1.
[ 26 ]
LECT. XLIII.]
* 29
OF PERSONAL PROPERTY.
1
*
even
* 29
nership losses are to be equally borne, and the profits
equally divided; (d) ¹ and this would be the rule,
though the contribution between the parties consisted
entirely of money by one, and entirely of labor by a other. In
equity, according to Pothier, each partner should share in the
profit in proportion to the value of what he brings into the com-
mon stock, whether it be money, goods, labor, or skill; and he
should share in the loss in a ratio to the gain to which he would,
in a prosperous issue to the business, have been entitled. He
admits, however, that the proportion of gain and loss may be
varied by agreement; and the agreement may render the extra
labor of one of the concern equal to the risk of loss, and a sub-
stitute for his share of loss. (a)
It is not necessary that every member of the company should,
in every event, participate in the profits. It would be a valid
partnership, according to the civil law, if one of the members
had a reasonable expectation of profit, and was, in consequence
of his particular art and calling, employed to sell, and to have a
share of the profits if they exceeded a certain sum, provided this
was granted to him by reason of his pains and skill, and not as a
gratuity. (b) So one partner may retire under an agreement to
abide his proportion of risk of loss, and take a sum in gross for
his share of future uncertain profits; or he may take a gross sum
as his share of the presumed profit, with an agreement that the
remaining partners are to assume all risks of loss. (c) But a
partnership, in which the entire profit was to belong to some of
them, in exclusion of others, would be manifestly unjust; and as
between the parties themselves, it would not be a proper partner-
(d) Inst. 3. 26. 1; Pothier, ub. sup. n. 73; Peacock v. Peacock, 16 Ves. 49; Gould
v. Gould, 6 Wend. 263; Parke, B., in Farrar v. Beswick, 1 Mood. & Rob. 527; Story
on Partn. [§§ 20-26;] Code of Louisiana, art. 2896. Mr. Justice Story has fully
examined this point.
(a) Pothier, ub. suv. n. 15-19, 25.
(b) Dig. 17. 2. 44; Pothier, ub. sup. n. 13,
(c) Pothier, Traité de Soc. n. 25, 26.
1 Robinson v. Anderson, 7 De G., M.
& G. 259; s. c. 20 Beav. 98; Collins v.
Jackson, 31 Beav. 645; Webster v. Bray,
7 Hare, 159; Stewart v. Forbes, 1 Macn.
& G. 137, 146; Warner v. Smith, 1 De G.,
J. & S. 337; Nowell v. Nowell, L. R. 7 Eq.
538; Donelson v. Posey, 13 Ala 752 ;
Roach v. Perry, 16 Ill. 37; Farr v. John-
son, 25 Ill. 522; Moore v. Bare, 11 Iowa,
198. See Hasbrouck v. Childs, 3 Bcsw.
105; Jackson v. Crapp, 32 Ind. 422
[ 27 1
.30
[PART V.
OF PERSONAL PROPERTY.
ship. (d) It would be what the Roman lawyers called societas
leonina, in allusion to the fable of the lion, who, having
* 30 entered into * a partnership with the other animals of the
forest, in hunting, appropriated to himself all the prey. (a)
There may be a general partnership at large, or it may be lim-
ited to a particular branch of business, or to one particular sub-
ject. (b) There may be a partnership in the goods in a particular
adventure, or it may be confined to the profits thereof. (c)¹ If
two persons should draw a bill of exchange, they are considered
as partners in respect to the bill, though in every other respect
they remain distinct. By appearing on the bill as partners, the
person to whom it is negotiated is to collect the relation of the
parties from the bill itself, and they are not permitted to deny
the conclusion. (d) This principle has not been extended to the
1
(d) Lowry v. Brooks, 2 M'Cord, 421; Bailey v. Clark, 6 Pick. 372.
(a) Dig. 17. 2. 29. 2; Pothier, ub. sup. n. 12; Institutes of the Laws of Holland,
by J. Van der Linden, translated by J. Henry, Esq., 571; 2 Bell's Comm. 615.
(b) Lord Mansfield, Willett v. Chambers, Cowp. 816; Code Napoleon, n. 1841.
(c) Salomons v. Nissen, 2 T. R. 674; Ex parte Gellar, 1 Rose, 297; Holmes v
Higgins, 1 B. & C. 74; Meyer v. Sharpe, 5 Taunt. 74; Pothier, Traité du Con. de
Soc. n. 54.
(d) Carvick v. Vickery, Doug. 653, note; De Berkom v. Smith, 1 Esp. 29. The
doctrine in Carvick v. Vickery was afterwards repudiated, and it is since held, that
codrawers, or copayees, or indorsers, not being commercial partners, must each
indorse the bill as a joint contract, and each receive notice of default, and demand
of payment on each must be made. Willis v. Green, 5 Hill (N. Y.), 234; Sayre v.
1 Partnership in Profits. See Lindley
on P., 2d ed. 22. French v. Styring, 2 C.
B. N. s. 357; Howe v. Howe, 99 Mass. 71;
Meserve v. Andrews, 104 Mass. 360; Brig-
ham v. Dana, 29 Vt. 1; Stevens v. Faucet,
24 Ill. 483; Robbins v. Laswell, 27 Ill. 365;
Fawcett v. Osborn, 32 Ill. 411; Bromley
v. Elliot, 38 N. H. 287, 309; Meaher v.
Cox, 37 Ala. 201; Ward v. Thompson, 22
How. 330; Greenham v. Gray, 4 Ir. C. L.
501. But see Dwinel v. Stone, 30 Me.
384; Conklin v. Barton, 43 Barb. 435;
Ogden v. Astor, 4 Sandf. 311, 321.
But when one is to have a share of the
profits only, and has no interest in the
principal stock, it may be sometimes dif-
ficult to say whether he is a partner or
only a servant compensated in that way.
Post, 33, 34, n. 1; Greenham v. Gray, sup.
(compare Shaw v. Galt, 16 Ir. C. L. 357,
378); Conklin v. Barton, sup.; Ogden v.
Astor, sup.; Parker v. Fergus, 43 Ill. 437;
Braley v. Goddard, 49 Me. 115; Ryder v.
Wilcox, 103 Mass. 24; Parker v. Canfield,
37 Conn. 250, 265.
See, as to agreements between authors
and publishers, Reade v. Bentley, 4 Kay
& J. 656, 662.
An example is to be found of a some-
what similar partnership to that men-
tioned at the beginning of note (ƒ), be-
tween the members of a society called
"Separatists." Their articles contained
a renunciation of individual property, but
the society was afterwards incorporated.
Goesele v. Bimeler, 14 How. 589; iv. 441, n.
[ 28 ]
LECT. XLIII.]
*31
OF PERSONAL PROPERTY.
case of two persons signing a joint note, (e) though it is not easy
to perceive a distinction between the cases. (ƒ)
(2) Of Dormant Partners. -* There is no difficulty, * 31
in the ordinary course of business, with the case of an
actual partner, who appears in his character of an ostensible part-
The question as to the person on whom the responsibility
of partner ought to attach in respect to third persons, arises in
the case of dormant partners who participate in the profits of the
trade, and conceal their names. They are equally liable, when
ner.
Frick, 7 Watts & S. 383. So, by statute, in Mass: R. S. 700, sec. 14, one or two
or more joint contractors cannot, by promise or acknowledgment, take a case out of
the statute of limitations. [Tappan v. Kimball, 30 N. H. 136; Sage v. Ensign, 2
Allen, 245.]
(e) Hopkins v. Smith, 11 Johns. 161.
(f) The Roman law, which has been followed in France, distinguished between
two kinds of universal partnership, the one universorum bonorum, and the other univer-
sorum quæ ex quæstu veniunt. By the first, the parties put into common stock all their
property, real and personal, then existing or thereafter to be acquired. All future
acquisitions, by purchase, gift, legacy, or descent, went into this partnership as of
course, without assignment, unless the gift or legacy was declared to be under the
condition of not being placed there. Such a partnership was charged with all the
debts of the parties at its commencement, and with all the future debts, and personal
and family expenses. The validity of such a partnership was not questioned, not-
withstanding it might be extremely unequal, and one might bring much more prop-
erty into it than another, and acquire ten times as much by gift, purchase, or succession,
and notwithstanding one partner might have a family of children, and another be des-
titute of any. ¡Pothier, Traité du Con. de Soc. n. 28-42.) We need not be apprehen-
sive that such a partnership will become infectious, for it appears to be fruitful in
abuse and discord; and in the Code Napoleon, No. 1837, the more forbidding features
of the connection are removed. Though it embraces all the existing property of the
parties, and every species of gains, it does not, under the code, extend to property
to be acquired by gift, legacy, or inheritance, and every stipulation to that effect is
prohibited. The Civil Code of Louisiana, which has throughout closely followed
the Code Napoleon, has recognized these universal partnerships applying to all
existing property; but they must be created in writing, and registered, and they are
under the checks mentioned in the French Code. Civil Code of Louisiana, Nós.
2800-2805.
The other species of universal partnership applies only to future profits, from
whatever source they may be derived; and it is formed when the parties agree to a
partnership without any further explanation. In this case, the separate acquisitions
of each, by legacy or inheritance, are kept separate, and do not enter into the com-
mon mass; nor does it embrace present real property, but only the future issues and
profits of it; and it is not, of course, chargeable with existing debts, though it was
formerly chargeable with them when made in that part of France under the Droit
Coutumier (Pothier, ub. sup. n. 43-52; Code Napoleon, n. 1838.) The same kind
of general partnerships, embracing all the present and future property of the parties,
is known in the laws of Spain and of Holland. Institutes of the Civil Law of Spain,
by Doctors Asso and Manuel, b. 2, 15; Institutes of the Laws of Holland, by J. Van
der Linden, translated by J. Henry, Esq., 573.
[ 29 ]
#31
[PART V.
OF PERSONAL PROPERTY.
discovered, as if their names had appeared in the firm, and
although they were unknown to be partners at the time of
the creation of the debt. (a) The question arises, also, in
•
(a) Robinson v. Wilkinson, 3 Price, 538; Lord Loughborough, 1 H. Bl. 48;
Pitts v. Waugh, 4 Mass. 424; Duncan, J., 8 Serg. & R. 55; Porter, J., 5 La. 406, 408;
Swan v. Steele, 7 East, 210; Winship v. United States Bank, 5 Peters, 529, 561. A
judgment against an ostensible partner, and not knowing of a dormant partner, is no
bar to an action against all the partners. A judgment being a mere security, dɔes
not change any other collateral security, until satisfaction. Watson v. Owens, 1
Rich. (S. C.) 111; Robinson v. Wilkinson, 3 Price, 538; Drake v. Mitchell, 3 East,
251. In Beckham v. Drake, 9 M. & W. 79, A, B, & C were partners, and the latter
a dormant partner, and the first two entered into a written contract without the
other being named or signing the contract; it was held, that a suit lay against all
the three partners, the dormant partner not being known as such to the plaintiff
when the contract was made. The partners who signed the contract had authority to
bind the dormant partner by parol contract, whether with or without writing, though
it would be different in the case of sealed instruments. The decision in Beckham v.
Knight, in the C. B., was overruled, after much discussion and consideration on this
point.
If partners agree that the business shall be carried on in the name of one of them,
or of some other person only, such name becomes the copartnership name, and all
the members are bound by it. Bank of Rochester v. Monteath, 1 Den. 402; Palmer
v. Stephens, ib. 471. The law as to dormant partners is confined to commercial
partnerships. Pitts v. Waugh, 4 Mass. 424; Smith v. Burnham, 3 Sumner, 435. A
dormant partner cannot join as plaintiff in an action, for there is no privity of com-
munication between him and the party who contracted with the firm. He is, never-
theless, suable as a defendant, because he participated in the profits of the contract.
Lloyd v. Archbowle, 2 Taunt. 324; Boardman v. Keeler, 2 Vt. 65. If one partner
borrows money in his individual name, a dormant partner is equally liable, if the
borrower represented it to be for the use of the partnership; though without such a
representation, the creditor must prove that the money went to a partnership use.
Etheridge v. Binney, 9 Pick. 272; Lloyd v. Ashby, 2 Carr. & P. 138; Story on Part.
[§ 139.] The statute law of New York, of 1833, (Laws, N. Y., sess. 56, c. 281,) has
checked the use of fictitious firms, by declaring that no person shall transact
business in the name of a partner not interested in his firm; and that where the
designation" and company or "& Co." is used, it shall represent an actual partner
or partners, and the violation of the provision is made a penal offence. A similar
provision is in Georgia. Hotchkiss's Code, 377.
1 Parties to Actions. A dormant part-
ner need not join as a plaintiff; Wait v.
Dodge, 34 Vt. 181; Wood v. O'Kelley, 8
Cush. 406; Rogers v. Kichline, 36 Penn.
St. 293; or be joined as defendant. Hop-
kins v. Kent, 17 Md. 72; North v. Bloss,
30 N. Y. 374; Jackson v. Alexander, 8
Texas, 109; Chase v. Dening, 42 N. H.
274; Page v. Brant, 18 Ill. 37. And a
nominal partner need not juin, a fortiori.
Hatch v. Wood, 43 N. H. 633. See Bishop
v. Hall, 9 Gray, 430.
But a dormant partner may join as
plaintiff; 1 Lind. on P. 2d ed. 476; Cot-
tray v. Fennell, 10 B. & C. 671; Rogers
v. Kichline, sup.; Hilliker v. Loop, 5 Vt.
116; see Secor v. Keller, 4 Duer, 416; or
be joined as defendant, as stated in the
text. Griffith v. Buffum, 22 Vt. 181;
Smith v. Smith, 27 N. H. 244; Brooke v.
[ 30 ]
LECT. XLIII.]
* 33
OF PERSONAL PROPERTY.
* 32
the case of a nominal or implied *partner, who has no
actual interest in the trade or its profits, and he becomes
responsible as a partner, by voluntarily suffering his name to
appear to the world as a partner, by which means he lends to the
partnership the sanction of his credit. (a) There is a just and
marked distinction between partnership as respects the public,
and partnership as respects the parties; and a person may be held
liable as a partner to third persons, although the agreement does
not create a partnership as between the parties themselves. (b)
Though the law allows parties to regulate their concerns as they
please in regard to each other, they cannot, by arrangement
among themselves, control their responsibility to others; and it
is not competent for a person, who partakes of the profits of a
trade, however small his share of those profits may be, to with-
draw himself from the obligations of a partner. (c) Each indi-
vidual member is answerable in solido to the whole amount of
the debts, without reference to the proportion of his interest, or
to the nature of the stipulation between him and his associates.
Even if it were the intention of the parties that they should not
be partners, and the person to be charged was not to contribute
either money or labor, or to receive any part of the profits, yet if
he lends his name as a partner, or suffers his name to continue
in the firm after he has ceased to be an actual partner, he is
responsible to third persons as a partner, for he may induce third
persons to give that credit to the firm which otherwise it
*would not receive, nor perhaps deserve. This principle *33
(a) Guidon v. Robson, 2 Camp. 802; Young v. Axtell, cited in 2 H. Bl. 242; Por-
ter, J., 5 La. (Miller), 408, 409; Fox v. Clifton, 6 Bing. 776.
(b) Barry v. Nesham, 3 C. B. 641. It was held, that a participation in the profits,
qua profits, created a partnership as to third persons, whatever the stipulation may
be as between themselves. [But see 25, n. 1.]
(c) Waugh v. Carver, 2 H. Bl. 235; Hesketh v. Blanchard, 4 East, 144. Nor can
a partner exonerate himself from personal responsibility for the existing engagements
of the company, by assigning or selling out his interest in the concern. Perring v
Hone, 2 Carr. & P. 401.
Washington, 8 Gratt. 248; Hill v. Voor-
hies, 22 Penn. St. 68; Lea v. Guice, 13
Sm. & Marsh. 656; Wood v. Cullen, 13
Minn. 394.
Mr. Lindley thinks that when a nom-
inal partner need not join as plaintiff, he
ought not to do so; for ex hypothesi he is
no party to the contract sought to be en-
forced, and he has no interest in its subject-
matter. Lind. on P. 2d ed. 479. See
Waite v. Dodge, 34 Vt. 181, 183. A
nominal partner may be joined as defend-
ant, as stated in the text. Smith v. Smith,
27 N. H. 244.
[ 31 ]
* 33
[PART V.
OF PERSONAL PROPERTY.
of law inculcates good faith and ingenuous dealing, and is now
regarded by the English courts as a fundamental doctrine. (a)
It has been explicitly asserted with us, and is now incorporated
in the jurisprudence of this country. (b) So strict is the law on
this point, that even if executors, in the disinterested perform-
ance of a trust, continue the testator's share in a partnership
concern in trade, for the benefit of his infant children, they may
render themselves personally liable as dormant partners. (c)¹
(3) Of Sharers in Profits. -A person may be allowed, in
special cases, to receive part of the profits of a business, without
becoming a legal or responsible partner. (d) Thus a party may
by agreement receive, by way of rent, a portion of the profits of
(a) Hoare ». Dawes, Doug. 371; Grace v. Smith, 2 Wm. Bl. 998; Waugh v. Car-
ver, 2 H. Bl. 235; Baker v. Charlton, Peake N. P. 80; Hesketh v. Blanchard, 4 East,
144; Ex parte Hamper, 17 Ves. 404; Ex parte Langdale, 18 Ves. 300; Carlen v. Drury,
1 Ves. & B. 154; Cheap v. Cramond, 4 B. & Ald. 663; Best, J., Smith v. Watson, 2
B. & C. 419; Lacy v. Woolcott, 2 Dowl. & Ry. 458.
(b) Purviance v. M'Clintee, 6 Serg. & R. 259; Gill v. Kuhn, ib. 333; Thompson, J.,
in Post v. Kimberly, 9 Johns. 489; Dob v. Halsey, 16 Johns. 40; Shubrick v. Fisher,
2 Desaus. Ch. 148; Osborne v. Brennan, 2 Nott & M'Cord, 427. Mr. Justice Story
(Partn. [§§ 36, 37]) prefers the Roman law, which did not create a partnership between
the parties as to third persons, without their consent, or against the stipulations of
their own contract. He is of opinion that the cominon law has pressed its principles
on this subject to an extent not required by, even if it is consistent with, natural jus-
tice; and that it would have been better if no partnership should be deemed to exist,
even as to third persons, unless such were the intention of the parties, or unless they
had so held themselves out to the public. For the Roman law, see Dig. 17. 2. 44 ;
Voet, ad Pand. 17. 2. 2. But if a dormant partner, when his name has not been
announced, and no credit given to him personally, as a supposed member, he may
withdraw without giving any notice to the public. Lacaze v. Sejour, 10 Rob. (La.)
144.
(c) Wightman v. Townroe, 1 Maule & Selw. 412. The better way would be for
the executors, in such cases, to have the trade carried on for the benefit of the infants,
under the direction of the court of chancery, as has frequently been done in England.
See 4 Johns. Ch. 627.
(d) See supra, 25, n. (b) [& 1], as to a sharer of profits.
1
¹ Executors. — Labouchere v. Tupper,
11 Moo. P. C. 198. See Liverpool Borough
Bank v. Walker, 4 De G. & J. 24; Lucas
a. Williams, 3 Giff. 150. But it has been
thought that none of the cases sustain the
proposition that the execution of an article
of partnership by an executor or trustee
ipso fucto renders him personally respon-
sible without reference to other circum-
stances; Owens v. Mackall, 33 Md. 382,
394; and in England it has been held not
enough to charge executors personally
that they had received payments which
were made partly on account of net profits
due to their testator's estate, when it ap-
peared that there was no capital employed
in the business. Holme v. Hammor d,
L. R. 7 Ex. 218, ante, 25, n. 1. As to
liability of assets, post, 57, n. (a).
[ 32 ]
LECT. XLIII.]
* 34
OF PERSONAL PROPERTY.
a farm or tavern. without becoming a partner. (e) So, to allow
a clerk or agent a portion of the profits of sales as a compensa-
tion for labor, or a factor a percentage on the amount of sales,
does not render the agent or factor a partner, when it appears to
be intended merely as a mode of payment adopted to increase
and secure exertion, and when it is not understood to be an
*interest in the profits in the character of profits, and * 34
there is no mutuality between the parties. A person in
business may employ another as a subordinate, and agree to pay
him a share of the profits, if any shall arise, without giving him
the rights or liabilities of a partner. (a) So, seamen take a share,
by agreement with the ship-owner, in the profits or gross proceeds
of a whale fishery or coasting voyage, by way of compensation
for their services; and shipments from this country to India upon
half profits are usual, and the responsibility of partners has
never been supposed to flow from such special agreements. (b)
This distinction seems to be definitely established by a series of
decisions, and it is not now to be questioned; and yet Lord Eldon
regarded the distinction with regret, and mentioned it frequently,
with pointed disapprobation, as being too refined and subtle, and
the reason of which, he said, he could not well comprehend. (c)¹
(e) Perrine v. Hankinson, 6 Halst. 181.
(a) Burckle v. Eckart, 1 Denio, 337.
(b) Dixon v. Cooper, 3 Wils. 40; Cheap v. Cramond, 4 B. & Ald. 670; Benjamin
v. Porteus, 2 H. Bl. 390; Meyer v. Sharpe, 5 Taunt. 74; Hesketh v. Blanchard, 4
East, 144; Dry v. Boswell, 1 Camp. 329; Wilkinson v. Frasier, 4 Esp. 182; Mair
v. Glennie, 4 Maule & Selw. 240; Geddes v. Wallace, 2 Bligh, 270; Muzzy v. Whit-
ney, 10 Johns. 226; Rice v. Austin, 17 Mass. 206; Lowry v. Brooks, 2 M'Cord, 421 ;
Baxter v. Rodman, 3 Pick. 435; Cutler v. Winsor, 6 Pick. 335; Hardin v. Foxcroft,
6 Greenl. 76; The Crusader, Ware, 437; Coffin v. Jenkins, 3 Story, 108, 112. See also
supra, 25, n. (b) [& 1]; Loomis v. Marshall, 12 Conn. 69; Hazard v. Hazard, 1 Story,
371. Sec, also, Story on Partn. [§§ 41-49,] who has analyzed the principal cases on
the subject. See, also, Pardessus, Droit Com. ii. n. 560; iii. n. 702; iv. n. 969; and
Duvergier, Droit Civ. Franc. v. n. 48 to n. 56, for the French law as to the cases in
which an agency, as distinct from a partnership, is within the intention of the parties.
(c) Ex parte Hamper, 17 Ves. 404; Ex parte Rowlandson, 1 Rose, 89; Ex parte
Watson, 19 Ves. 459; Miller v. Bartlett, 15 Serg. & R. 137. Mr. Carey, in his recent
1 It is intelligible, however, on the
doctrine of the later English cases, stated
ante, 25, n. 1; and it is recognized in many
American cases; ante, 30, n. 1, and cases
cited; Edwards v. Tracy, 62 Penn. St.
374, 381; Burckle v. Eckhart, sup. n. (a),
VOL III.
3
affirmed 3 Comst. 132; Felch v. Hall, 25
Barb. 13; Crawford v. Austin, 34 Md. 49;
McMahon v. O'Donnell, 5 C. E. Green
(N. J.), 306; Stocker v. Brockelbank, 3
Macn. & G. 250.
[ 33 ]
* 35
[PART V.
OF PERSONAL PROPERTY.
X (4) Of Limited Partners. - The English law does not admit
of partnerships with a restricted responsibility. In many parts
of Europe, limited partnerships are admitted, provided they be
entered upon a register. (d) Thus in France, by the ordinance
of 1673, limited partnerships (la Société en commandité) were
established, by which one or more persons, responsible in solido
as general partners, were associated with one or more sleeping
partners, who furnished a certain proportion of capital, and were
liable only to the extent of the funds furnished. This kind of
partnership has been continued and regulated by the new Code
of Commerce; (e) and it is likewise introduced into the
* 35 *Louisianian code, under the title of partnership in com-
mendam. (a) It is supposed to be well calculated to bring
dormant capital into active and useful employment; and this
species of partnership has, accordingly, been authorized by statute
in Massachusetts, Rhode Island, Connecticut, Vermont, New
Jersey, Pennsylvania, Maryland, South Carolina, Georgia, Ala-
bama, Florida, Mississippi, Indiana, and Michigan, as well as in
New York.¹ It is declared, in the latter state, (b) that a limited
partnership for the transaction of any mercantile, mechanical, or
manufacturing business within the state, (c) may consist of one
or more persons jointly and severally responsible according to
the existing laws, who are called general partners, and one or
more persons who furnish certain funds to the common stock, and
whose liability shall extend no further than the fund furnished,
and who are called special partners. The names of the special
treatise on the Law of Partnership, p. 11, vindicates the principle on which the above
distinction is founded, and insists that it is perfectly clear and just. Collyer, also, in
a still more recent treatise on the Law of Partnership, p. 17, is in favor of the reason-
ableness of the distinction in the cases where there is, and where there is not a mutual
interest in the profits.
(d) Lord Loughborough, 1 H. Bl. 48.
(e) Répertoire de Jurisprudence, par Merlin, tit. Société, art. 2; Code de Commerce,
b. 1, tit. 3, sec. 1.
(a) Civil Code of Louisiana, art. 2810.
(b) Laws of N. Y. April, 1822, sess. 45, c. 244, and sess. 50, c. 238; reënacted by
N. Y. Revised Statutes, i. 764, with some slight variations.
(c) In New York, New Jersey, Pennsylvania, Maryland, South Carolina, Alabama,
Georgia, Florida, Mississippi, Connecticut, and Vermont, the business of banking and
insurance is specially excepted.
1 The student must be referred to the in the text, as well as of many others, for
statutes of the several states mentioned the present law on this subject.
[ 34 ]
LECT. XLIII.]
*36
OF PERSONAL PROPERTY.
partners are not to be used in the firm, which shall contain the
names of the general partners only, without the addition of the
word company, or any other general term; nor are they to trans-
act any business on account of the partnership, or be employed
for that purpose as agents, attorneys, or otherwise; but they may,
nevertheless, advise as to the management of the partnership
concern. Before such a partnership can act, a registry thereof
must be made in the clerk's office of the county, with an accom-
panying certificate, signed by the parties, and duly acknowledged,
and containing the title of the firm, the general nature of the
business, the names of the partners, the amount of capital fur-
nished by the special partners, and the period of the partner-
ship. The capital advanced by the special partners must be in
cash, and an affidavit filed stating the fact. Publication must
likewise be made for at least six weeks of the terms of the part-
nership, and due publication for four weeks of the dissolution of
the partnership by the act of the parties prior to the time speci-
fied in the certificate. No such partnership can make assign-
ments or transfers, or create any lien, with the intent to give
preference to creditors. The special partners may receive an
annual interest on the capital invested, provided there be no reduc-
tion of the original capital; but they cannot be permitted
*to claim as creditors, in case of the insolvency of the *36
partnership. (a) It is easy to perceive, that the provisions
of the act have been taken, in most of the essential points, from
the French regulations in the commercial code; and it is the first
instance in the history of the legislation of New York, that the
statute law of any other country than that of Great Britain has
been closely imitated and adopted. The provision for limited
partnerships in the other states (and which were subsequent in
point of time to that in New York) is essentially the same. (b)
It is a general and well-established principle, that when a per-
(a) It has been ruled, in Hubbard v. Morgan, U. S. D. C. for N. Y., May, 1839,
that the special partner must, at his peril, see that the law is complied with in all its
essentials, or he will be liable as a general partner. [Haggerty v. Foster, 103 Mass.
17; 7 Am. L. Rev. 177; Haviland v. Chace, 39 Barb. 283; Richardson v. Hogg, 38
Penn. St. 153.]
(b) If the partnership be a particular one, being formed for some business not of
a commercial nature, such partnerships are called particular or ordinary partnerships
in the Civil Code of Louisiana, art. 2806, 2807; and the partners are not bound in
solido for the debts of the firm, unless such power be specially given; but each partner
is bound for his share of the partnership debt. Ib. art. 2843, 2844; 12 Rob. (La.) 247.
[ 35 ]
37
[PART V.
OF PERSONAL PROPERTY.
son joins a partnership as a member, he does not, without a special
promise, assume the previous debts of the firm, nor is he bound by
them. To render persons jointly liable upon a contract as part-
ners, they must have a joint interest contemporary with the for-
mation of the contract. (c) If, however, goods are purchased in
pursuance of a previous agreement between two or more persons,
that one of them should purchase the goods on joint account, in
a foreign adventure, they are all answerable to the seller for the
price, as partners, even though their names were not announced
to the seller; for the previous agreement made the partnership
precede the purchase, and a joint interest attached in the goods
at the instant of the purchase. (d)
II. Of the Rights and Duties of Partners in their Relation to each
Other, and to the Public. (1) Of the Interest of Partners in their
Stock in Trade. Partners are joint tenants of their stock in
trade, but without the jus accrescendi, or right of survivorship;
and this, according to Lord Coke, (e) was part of the law mer-
chant, for the advancement and continuance of commerce and
trade. It would seem, however, to have been a point of some
doubt as late as the middle of the seventeenth century, whether
the doctrine of survivorship did not apply; for the Lord
*37 Keeper, *in Jeffereys v. Small, (a) observed that it was
common, at that time, for traders, in articles of copartner-
ship, to provide against survivorship, though he declared that the
provision was clearly unnecessary. On the death of one partner,
his representatives become tenants in common with the survivor ;
and with respect to choses in action, survivorship so far exists at
law, that the remedy to reduce them into possession vests exclu-
sively in the survivor, for the benefit of all the parties in inter-
est. (b)¹ But no partner has an exclusive right to any part of
(c) Saville v. Robertson, 4 T. R. 720; Young v. Hunter, 4 Taunt. 582; Poindexter
v. Waddy, 6 Munf. 418; Gow on Partn. 150-152; Collyer on Partn. 735–743. Mr.
Justice Story, in his Comm. on Partn. [§§ 147-153,] has examined the cases replete
with complex and refined discussions, as to the acts preliminary to the formation of
a partnership, which do or do not bind the partnership when consummated. The
general doctrine, as the learned judge observes, is well summed up by Mr. Collyer.
(d) Gouthwaite v. Duckworth, 12 East, 421; Collyer on Partn. 357-360; Story on
Partn. [§ 148.]
(e) Co. Litt. 182 a.
(a) 1 Vern. 217.
(b) Martin v. Crompe, 1 Ld. Raym. 340; Daniel, J., in Jarvis v. Hyer, 4 Dev.
(N. C.) 369.
1 An exhaustive discussion of the law
as to chattels in possession where the
authorities are collected by Mr. Baron
Parke, and the doctrine in the text con-
[ 36 ]
LECT. XLIII.]
* 37
OF PERSONAL PROPERTY.
the joint stock, until a balance of accounts be struck between
him and his copartners, and the amount of his interest accurately
ascertained. The interest of each partner in the partnership prop-
erty is his share in the surplus, after the partnership accounts are
settled and all just claims satisfied; and it follows, that no suit
at law can be maintained by one partner against his copartner,
until a final settlement has been made, and the balance ascer-
tained, and a promise contracted to pay it. (c)²
(c) Nicoll v. Mumford, 4 Johns. Ch. 522; Fox v. Hanbury, Cowp. 445; Taylor v.
Fields, 4 Ves. 396; 15 Ves. 559, note, s. c.; Parsons, C. J., in Pierce v. Jackson, 6
Mass. 212; Holmes v. Higgins, 1 B. & C. 74; Killam v. Preston, 4 Watts & S. 14;
Foster v. Allanson, 2 T. R. 479; Fromont v. Coupland, 2 Bing. 170. One partner
having only his separate interest in the surplus, cannot, of course, sell or mortgage
an undivided interest in a specific part. Morrison v. Blodgett, 8 N. H. 238; Lovejoy
v. Bowers, 11 id. 406. Though each partner is bound to bestow his services and labor
with due diligence and skill, he is not entitled to any reward or compensation, unless
there be an express stipulation between the partners for that purpose. The law does
not undertake to measure between the partners the relative value of their services
bestowed on the joint business. Thornton v. Proctor, 1 Anst. 94; Caldwell v. Leiber,
Paige, 483; Anderson v. Taylor, 2 Ired. Eq. (N. C.) 420; Burden v. Burden, 1 Ves.
& B. 170; Story on Partn. [§ 182;] Franklin v. Robinson, 1 Johns. Ch. 157, 165; Brad-
ford v. Kimberly, 3 Johns. Ch. 433; Whittle v. McFarlane, 1 Knapp, P. C. 311.
firmed will be found in Buckley v. Barber,
6 Exch. 164. See, also, Holden v. M'Ma-
kin, 1 Pars. Eq. 270, 277. As to choses
in action at law, see Holbrook v. Lackey,
13 Met. 132; Stearns v. Houghton, 38
Vt. 583; Felton v. Reid, 7 Jones, N. C.
269; Rice v. Richards, 1 Busb. Eq. 277;
Daby v. Ericsson, 45 N. Y. 786; post, 58,
n. (a); in equity, post, 58, n. 1.
2 Suits between Partners. Holyoke v.
Mayo, 50 Me. 385; Ryder v. Wilcox, 103
Mass. 24; Harris v. Harris, 39 N. H. 45;
Ordiorne v. Woodman, ib. 541; White v.
Harlow, 5 Gray, 463; Crottes v. Frigerio,
18 La. An. 283; De Jarnette v. McQueen,
21 Ala. 230; Ives v. Miller, 19 Barb. 196;
Drew v. Ferson, 22 Wisc. 651; Page v.
Thompson, 33 Ind. 137; Farrar v. Pear-
son, 58 Me. 561.
It is laid down that the promise need
not be express, in Van Amringe v. Ell-
maker, 4 (Barr) Penn. St., 281; Knerr v.
Hoffman, 65 Penn. St. 126; Wycoff v.
Purnell, 10 Iowa, 332; Wray v. Milestone,
5 M. & W. 21. See especially Sikes v.
Work, 6 Gray, 433; Shattuck v. Lawson,
10 Gray, 405; Wright v. Cumpsty, 41
Penn. St. 102; Finlay v. Stewart, 56
Penn. St. 183; but compare Harris v.
Harris, 39 N. H. 45, 50. Contra, Chadsey
v. Harrison, 11 Ill. 151; Pattison v. Blan-
chard, 6 Barb. 537; and some earlier cases.
The rule stated in the text does not
apply to all cases. For instance, where
the contract, debt, or security is a separate
not a partnership contract, &c. Crater v.
Bininger, 45 N. Y. 545; Gridley v. Dole,
4 Comst. 486; Chamberlain v. Walker,
10 Allen, 429; Wright v. Michie, 6 Gratt.
354; Edens v. Williams, 36 Ill. 252; Elder
v. Hood, 38 Ill. 533; Caswell v. Cooper,
18 Ill. 532; Collamer v. Foster, 26 Vt.
754; Cross v. Cheshire, 7 Exch. 43;
Sedgwick v. Daniell, 2 Hurlst. & N. 319.
See Coleman v. Coleman, 12 Rich. 183.
So a contract in contemplation of part-
nership merely, and preliminary to it.
Currier v. Webster, 45 N. H. 226; Cur-
rier v. Rowe, 46 N. H. 72; French v. Sty-
ring, 2 C. B. N. s. 357; Vance v. Blair,
[ 37 ]
38
[PART V.
OF PERSONAL PROPERTY.
(2) Stock in Land. - If partnership capital be invested in
land for the benefit of the company, though it may be a joint
tenancy in law, yet equity will hold it to be a tenancy in com-
mon, and as forming part of the partnership fund; and the better
opinion would seem to be, that equity will consider the person in
whom the legal estate is vested as trustee for the whole concern,
and the property will be entitled to be distributed as personal
estate. (d) The point has been extensively discussed and
*38 * considered in this country, and the cases are not incon-
sistent with this principle, when they admit, upon grounds
of reason and policy, that real estate, acquired with partnership
funds, and held by partners in common, may be conveyed or
charged by one partner, on his private account, to the extent of
his legal title, whether that legal title covers the whole or a part
(d) Thornton v. Dixon, 3 Bro. C. C. 199; Lord Loughborough, in Smith v. Smith,
5 Ves. 189; Ripley v. Waterworth, 7 Ves. 425; Featherstonhaugh v. Fenwick, 17 Ves.
298; Lord Eldon, in Townsend v. Devaynes, cited in Gow on Partn. 54, ed. Phil. 1825;
in Selkrig v. Davis, 2 Dow, 242, and in Crawshay v. Maule, 1 Swanst. 521; Sigour
ney v. Munn, 7 Conn. 11; Hoxie v. Carr, 1 Sumner, 182-186; Ex parte Banks, New-
foundland R. 396. Contra, Sir William Grant, in Bell v. Phyn, 7 Ves. 453; and
Balmain v. Shore, 9 Ves. 500; Gow on Partn. 54, 55. In Sigourney v. Munn, the
English and American authorities were fully examined, and the subject discussed;
and the doctrine declared, that real estate acquired with partnership funds, for part-
nership purposes, would be regarded in equity as partnership stock, and liable to all
the incidents of partnership property. It might, also, by agreement of the parties,
be regarded as personal stock of the company. The English Vice-Chancellor, in
Randall v. Randall, 7 Sim. 271, reviewed, among others, the cases of Thornton v.
Dixon, Ripley v. Waterworth, Bell v. Phyn, Balmain v. Shore, and Crawshay v.
Maule, above mentioned, together with the cases of Phillips v. Phillips, 1 My. & K.
649, and Broom v. Broom, 3 id. 443, and came to the conclusion declared in Sigour-
ney v. Munn, that the English chancery doctrine, considering real estate as personal
property, was applicable only to lands purchased with partnership capital, for the
purposes of a partnership trade.
18 Ohio, 532; Terry v. Carter, 25 Miss. 6 Beav. 371. Compare Featherstonhaugh
168.
v. Turner, 25 Beav. 382, 392. As to in-
terest, see In re German Mining Co., Ex
parte Chippendale, 4 De G., Macn. & G.
19; 19 Eng. L. & Eq. 591; 27 id 158;
Hill v. King, 9 Jur. N. s. 527; Wood v.
Scoles, L. R. 1 Ch. 369; Watney v. Wells,
L. R. 2 Ch. 250; Gyger's Appeal, 62
Penn. St. 73; Morris v. Allen, 1 McCarter,
44; Millar v. Craig, 6 Beav. 433; Desha
v. Smith, 20 Ala. 747. It may be allowed
when such is the usage of trade.
The principles stated in note (c), and
more fully ante, 25, n. (b), ad fin., are
confirmed in Hutcheson v. Smith, 5 Ir.
Eq. 117; Coursen v. Hamlin, 2 Duer, 513;
Day v. Lockwood, 24 Conn. 185; Lyman
v. Lyman, 2 Paine, 11; King v. Hamil-
ton, 16 Ill. 190. So as to services of sur-
viving partner in winding up. Brown v.
McFarland, 41 Penn. St. 129; Piper v.
Smith, 1 Head, 93; Stocken v. Dawson
[ 38 ]
LECT. XLIII.]
* 39
OF PERSONAL PROPERTY.
of the estate; provided the purchaser or mortgagee dealt with
him bona fide, and without notice of the partnership rights, and
there was nothing in the transaction from which notice might
reasonably be inferred. (a) In Tennessee, an estate so held in
joint tenancy by partners for the purposes of trade, descends and
vests in the heirs at law of a deceased partner as real estate. (b)
In New York, the Supreme Court, upon the strength of the ulti-
mate opinion of Lord Thurlow, in Thornton v. Dixon, and of the
opinion of the Master of the Rolls, in Balmain v. Shore, declared,
in Coles v. Coles, (c) that the principles and rules of law appli-
cable to partnerships, and which govern and regulate the disposi-
tion of the partnership property, did not apply to real estates ;
and that in the absence of special covenants between the parties,
real estate owned by partners was to be considered and treated
as such, without any reference to the partnership. The
language of the Supreme Court of Massachusetts, *in *39
Goodwin v. Richardson, (a) is nearly to the same effect; +
and it seemed to be considered, that partners purchasing an estate
out of the joint funds, and taking one conveyance to themselves
as tenants in common, would hold their undivided moieties in
separate and independent titles, and that the same would go, on
the insolvency of the firm, or on the death of either, to pay their
respective creditors at large.
These latter cases, and particularly the one in New York, go
to the entire subversion of the equity doctrine now prevalent in
(a) Forde v. Herron, 4 Munf. 316; M'Dermot v. Laurence, 7 Serg. & R. 438. In
Hoxie v. Carr, 1 Sumner, 173, it was held, that where a purchaser of real estate has
actual, or is chargeable with constructive notice, that it was partnership property,
the estate is chargeable in his hands with the payment of the partnership debts, even
though he had no notice of the partnership debts.
(b) M'Allister v. Montgomery, 3 IIayw. 96. In Yeatman v. Woods, 6 Yerg. 20,
real estate held by partners, for partnership purposes, was held to descend and vest,
upon the death of one of the partners, in his heirs at law, as real estate.
This was
upon the strength of the case in 3 Haywood, but with an evident reluctance in the
court to depart from the English rule in equity which now holds such estate to be
personal stock, and distributable as such. In South Carolina one party cannot trans-
fer the real estate of the firm, and used for its business, by deed, unless it be in a
case in which the buying and selling of real estate is the object of the partnership.
Robinson v. Crowder, 4 M'Cord, 519. The deed can convey only his individual share
or title. Story on Partn. [§ 119.] The partners hold real estate as joint tenants, or
tenants in common, as the case may be, and one partner cannot, by virtue of the
partnership power, sell for the other. He must be specially authorized. Lawrence
v. Taylor, 5 Hill (N. Y.), 107.
(c) 15 Jolins. 159.
(a) 11 Mass. 469.
[ 39 ]
* 39
[PART V.
OF PERSONAL PROPERTY.
England; but the other American decisions are more restricted
in their operation, and are not inconsistent with the more correct
and improved view of the English law. Their object is to secure
the rights of purchasers and encumbrancers without notice from
being affected by a claim of partnership rights of which they
were ignorant. In Edgar v. Donnally, (b) a right to land had
(b) 2 Munf. 387. But in Deloney v. Hutcheson, 2 Rand. 183, the appropriation
of partnership lands, as assets to partnership debts, in preference to other debts, was
denied; and it was held that lands purchased by partners, for partnership purposes,
was an estate in common, both at law and equity; and that a surviving partner had
no other remedy as a creditor than any other creditor. In Blake v. Nutter, 19 Maine,
16, this was declared to be the rule at law, but no opinion was expressed as to the
rule in equity. Other American cases hold a different language; thus, in Winslow
v. Chiffelle, [Harper (S. C.), 25,] it was held, that lands held and used by partners, in
the business of a mill, were copartnership property, and subject to be applied, like
other partnership property, to the payment of partnership debts, in preference to the
claims of separate creditors. So, in Greene v. Greene, 1 Ohio, 249, it was held, that
lands purchased with partnership funds, for partnership purposes, and under articles
that the partnership property should be sold for the payment of debts, were to be
considered and applied as personal assets of the partnership as between the partners
and their creditors, and were not subject to the dower of the widow of a deceased
partner as against partnership debts. And again, in Marvin v. Trumbull, Wright
(Ohio), 386, real estate, purchased and held as partnership property, was held to be
subjected to the debts of the firm, in preference to the debt of an individual mem-
ber of it, the creditor having notice. And in Hoxie v. Carr, 1 Sumner, 173, it was
declared, that real estate purchased for partnership purposes, and on partnership
account, would in equity be deemed partnership property and personal estate, though
at law it would be dealt with according to the legal title. The general principle now
declared in the English law is, that real estate acquired for the purpose of a trading
concern, is to be considered as partnership property, and to be first applied in satis-
faction of the demands of the partnership. Fereday v. Wightwick, 1 Russ. & My.
45. The Chief Justice of Massachusetts, in Burnside v. Merrick, 4 Met. 511, says,
the prevailing judicial opinion now is, that real estate purchased by partners, with
partnership funds, for partnership purposes, though at law it may be held by them
as tenants in common, yet in equity it is considered as held in trust as part of the
partnership property, applicable in the first place exclusively to pay the partnership
debts. Dyer v: Clark, and Howard v. Priest, 5 Met. 562, 582; Divine v. Mitchum, 4
B. Mon. 488, s. p. The prevalence and the correctness of this opinion appear to be
incontestable. It is taken to be personal estate, and retains that character as between
the real and personal representatives of a deceased partner. Townsend v. Devaynes,
Crawshay v. Maule, and Selkrig v. Davies, cited supra, 37, note; Phillips v. Phillips,
1 My. & K. 649; Story, J., in Hoxie v. Carr, 1 Sumner, 183–186. The Vice-Chancellor
in New York, in Smith v. Jackson, 2 Edw. Ch. 28, reviews all the conflicting cases
on this point; and he follows the Supreme Court of New York, and holds, that
though real estate be purchased with joint funds for partnership purposes, there is
no survivorship as to the real estate, and the share of a deceased partner, as a tenant
in common, descends to his heirs, unless there be an agreement among the partners
that the lands so purchased shall be considered as personal property; and that then,
upon the foot of that agreement, and not without it, equity would apply the lands to
[ 40 ]
LECT. XLIII.]
* 39
OF PERSONAL PROPERTY.
been acquired with partnership stock and a title taken in the
name of the surviving partner, and a claimant under the deceased
partner was held entitled in equity to a moiety of the land, against
a purchaser, from the survivor, with notice of the partnership
right. This was a recognition of the true rule of equity on the
subject.1
pay partnership debts. Nay, he gives the wife her dower in the partnership share
of the husband so descended. The decisions on this side of the question appear to
me to be a sacrifice of a principle of policy, and, above all, a principle of justice, to a
technical rule of doubtful authority. There is no need of any other agreement than
what the law will necessarily imply, from the fact of an investment of partnership
funds, by the firm, in real estate, for partnership purposes. If the partners mean to
deal honestly, they cannot have any other intention than the appropriation of the
investment, if wanted, to pay the partnership debts. Mr. Collyer, in his treatise on
the Law of Partnership, first published in London in 1832, concludes his review of
the cases with holding it to be the better opinion, that although the legal estate in
freehold property purchased by partners, for the purposes of their trade, will go in
the ordinary course of descent without survivorship, yet the equitable interest in such
property will be held to be part of the partnership stock, and distributable as per-
sonal estate. Collyer on Partn. 76.
1 Partnership Lands. It is generally
admitted that real estate bought with
partnership funds, for partnership pur-
poses, is partnership property, whether
the legal title is taken in the name of one
or of all the partners. Putnam v. Dob-
bins, 38 Ill. 394; Buchan v. Sumner, 2
Barb. Ch. 165; Crooker v. Crooker, 46
Me. 250; Buffum v. Buffum, 49 Me. 108;
Jarvis v. Brooks, 7 Fost (27 N. H.) 37;
Willis v. Freeman, 35 Vt. 44; Abbott's
Appeal, 50 Penn. St. 234; Erwin's Ap-
peal, 39 Penn. St. 535; Uhler v. Semple,
5 C. E. Green (20 N. J. Ch.), 288; Tilling-
hast v. Champlin, 4 R. I. 173; Richards
v. Manson, 101 Mass. 482, 485; Fall River
Whaling Co. v. Borden, 10 Cush. 458;
Robertson v. Baker, 11 Fla. 192, 228;
Buck v. Winn, 11 B. Mon. 320. Compare
Galbraith v. Gedge, 16 B. Mon. 631, 636;
Bank of England Case, 3 De G., F. & J.
645, 658; Steward v. Blakeway, L. R. 4
Ch. 603; L. R. 6 Eq. 479. Compare Brooke
v. Washington, 8 Gratt. 248; Dewey v.
Dewey, 35 Vt. 555; North Penn. Coal
Co.'s Appeal, 45 Penn. St. 181; Boyers
v. Elliott, 7 Humph. 204. And the part-
nership equities are enforced against the
heirs, devisees, or widow of the partner
who held the legal title, as in other trusts.
Smith v. Jackson, sup. n. (b), is said in
Mr. Gray's very valuable note to Story
on P. § 93 to stand alone. Duhring v.
Duhring, 20 Mo. 174; Galbraith v. Gedge,
16 B. Mon. 631; Shearer v. Shearer, 98
Mass. 107, 111; Wilcox v. Wilcox, 13 All.
252, 254; Goodburn v. Stevens, 1 Md.
Ch. 420; Matlock v. Matlock, 5 Ind. 403;
Loubat v. Nourse, 5 Fla. 350. In like
manner the partnership creditors are pre-
ferred in equity to separate creditors, in
their claim on the partnership land. Col-
lumb v. Read, 24 N. Y. 505; Jones v.
Neale, 2 Patt. & Heath, 339; Fall River
Whaling Co. v. Borden, 10 Cush. 458;
Crooker v. Crooker, 46 Me. 250; Reeves
v. Ayers, 38 Ill. 418; Boyers v. Elliott, 7
Humph. 204. But see Ridgway's Appeal,
15 Penn. St. 177, criticised in Gray's note,
sup. But the creditors have no equity to
prevent partners from bona fide, and for a
valuable consideration, changing its char-
acter from joint to separate property (even
if the firm and both partners are insol·
[ 41 ]
* 40
[PART V.
OF PERSONAL PROPERTY.
(3) As Ship-owners. In Nicoll v. Mumford, (c) it was held,
that ship-owners were tenants in common, and were not to be
considered as partners, nor liable each in solido, nor entitled
*40 in the settlement of * accounts, on the principle of partner-
ship. The doctrine of Lord Hardwicke on this point, in
Doddington v. Hallet, (a) was considered to be overruled by the
modern decisions in chancery; (b) and by the universal under-
standing in the commercial world. But when the case of Nicoll
v. Mumford was reviewed in the Court of Errors, (c) the doc-
(c) 4 Johns. Ch. 522. See, also, post, 154, 155. [& n. 1.]
(a) 1 Ves. 497.
(b) See 5 Ves. 575; 2 Ves. & B. 242; 2 Rose, 76, 78; 1 Montague on Partn. 102,
note; Merrill v. Bartlett, 6 Pick. 47. In this last case it was declared, that part ship-
owners had no lien upon the part of a bankrupt companion for his proportion of the
advances of the outfit. Part owners, or tenants in common, are not answerable for
each other's debts.
(c) 20 Johns. 611. In Hewitt v. Sturdevant, 4 B. Mon. 458, 459, the Court of
Appeals in Kentucky adhered to the doctrine of Lord Hardwicke, that a joint owner
of a ship was entitled to a lien as against the administrator or general creditor, upon
the share of his intestate, a cobuilder and fitterout of the vessel for excess of.
advances over his aliquot part.
vent). Richards v. Manson, 101 Mass. 603, 609; L. R. 6 Eq. 479; and compare
482, 487; post, 65, n. 2.
When the land is not purchased with
partnership funds, and there is therefore
no resulting trust, the better opinion
seems to be that in general, to make land
partnership property, a memorandum in
writing is necessary under the Statute of
Frauds. Gray's note, sup. Bird v. Mor-
rison, 12 Wisc. 138, 155 (where the ex-
ceptions are stated); Caddick v. Skid-
more, 2 De G. & J. 52. See Dale v.
Hamilton, 2 Ph. 266, 273. But see s. c.
5 Hare, 369; Hanff v. Howard, 3 Jones,
Eq. 440.
The authorities are divided on the
question whether partnership land is to
be regarded in equity as personal estate
as between the real and personal repre-
sentatives of the partners. Mr. Lindley
thinks that in England it is to be deemed
personalty. Lind. on l'. 2d ed. 670; Darby
v. Darby, 3 Drew. 495, 506; Essex v. Es-
sex, 20 Beav. 442; Wild v. Milne, 26 id.
504; see Steward v. Blakeway, L. R. 4 Ch.
Pierce v. Trigg, 10 Leigh, 406, 424, with
Davis v. Christian, 15 Gratt. 11, 36; Gray's
note, sup. ad fin. So a fortiori when there
is an agreement that it shall be considered
as personal property. Ludlow v. Cooper,
4 Ohio St. 1; Galbraith v. Gedge, 16 B.
Mon. 631, 636. The English doctrine does
not prevail in all of the United States.
Buchan v. Sumner, 2 Barb. Ch. 165, 201;
Buckley v. Buckley, 11 Barb. 43, 75; Wil-
cox v. Wilcox, 13 Allen, 252; Goodburn
v. Stevens, 1 Md. Ch. 420, 5 Gill, 1; Hale
v. Plummer, 6 Ind. 121; Piper v. Smith,
1 Head, 93; Dilworth v. Mayfield, 36
Miss. 40; Lang v. Waring, 25 Ala. 625,
640; Tillinghast v. Champlin, 4 R. I. 173,
207. And some cases lay down the rule
that conversion into personalty takes place
only when required for the payment of
claims against the partnership which are
in the nature of debt, even when the in-
terest of the deceased partner is only
equitable. Shearer v. Shearer, 98 Mass,
107, 112.
[ 42 ]
LECT. XLIII.]
* 41
OF PERSONAL PROPERTY.
trine of Lord Hardwicke was considered by the majority of the
judges to be the better doctrine; and there is no doubt but that
there may be a special partnership in a ship, as well as in the
cargo, in regard to a particular voyage or adventure. (d) It was
assumed by the court, in Lamb v. Durant, (e) that vessels, as
well as other chattels, might be held in strict partnership, with
all the control in each partner incident to commercial partner-
ships. But this must be considered an exception to the general
rule; and the parties to property in a ship, however that prop-
erty may be acquired, are entitled as tenants in common, and
each party can sell only his own share, and the right of survivor-
ship does not apply to the case. (ƒ)¹
(4) Acts by which One Partner may bind the Firm. - The
act of each partner, in transactions relating to partnership, is
considered the act of all, and binds all. He can buy and sell
partnership effects, and make contracts in reference to the
business of the firm, and pay and receive, * and draw and *41
indorse, and accept bills and notes, and assign choses in
action. Acts in which they all unite differ in nothing, in respect
to legal consequences, from transactions in which they are con-
cerned individually; but it is the capacity by which each partner
is enabled to act as a principal, and as the authorized agent of his
copartners, that gives credit and efficacy to the association. The
act of one partner, though on his private account, and contrary
to the private arrangement among themselves, will bind all the
parties, if made without knowledge in the other party of the
arrangement, and in a matter which, according to the usual
(d) See infra, 154, 155.
(e) 12 Mass. 54. So, also, in Seabrook v. Rose, 2 Hill, Ch. (S. C.) 555, 556. Ch.
De Saussure held, according to the doctrine in the N. Y. Court of Errors, that own-
ing a ship, employed in trade by several persons, in distinct shares, constituted a part-
nership, with all its legal incidents; but the Court of Appeals (558), while they
admitted that every species of property might be held in partnership, gave no opinion
on the question whether a ship owned in distinct shares, and employed in trade, was,
as between the owners, partnership property, or liable to be so regarded by creditors,
beyond certain specified limits.
(f) Story on Partn. [§ 417.]
¹ Post, 155, n. 1; Doddington v. Hal-
let is overruled in England. Green v.
Briggs, 6 Hare, 395, 401, and other cases
eited, 155, n. 1. And where no special
relation exists, but the parties are merely
part owners, and, as such, tenants in com-
mon, one has no lien on the share of an-
other for advances. Ib.; The Larch, 2
Curt. 427.
[ 43 ]
* 41
[PART V.
OF PERSONAL PROPERTY.
course of dealing, has reference to business transacted by the
firm. (a)
The books abound with numerous and subtle distinctions on
the subject of the extent of the power of one partner to bind
the company; and I shall not attempt to do more than select the
leading rules, and give a general analysis of the cases.
In all contracts concerning negotiable paper, the act of one
partner binds all, and even though he signs his individual name,
provided it appears, on the face of the paper, to be on partnership
account, and to be intended to have a joint operation. (b)¹ But if
a note or bill be drawn, or other contract be made, by one part-
ner in his name only, and without appearing to be on partnership
account, or if one partner borrow money on his own security, the
partnership is not bound by the signature, even though it was
made for a partnership purpose, or the money applied to a part-
nership use. (c) The borrowing partner is the creditor of the
firm, and not the original lender, and the money was advanced
(a) Hope v. Cust, cited in 1 East, 53; Swan v. Steele, 7 East, 210; Rothwell v.
Humphreys, 1 Esp. 406; Abbott, C. J., Sandilands v. Marsh, 2 B. & Ald. 673; Ex
parte Agace, 2 Cox, 312; Shippen, J., Gerard v. Basse, 1 Dall. 119; Parker, C. J., in
Lamb v. Durant, 12 Mass. 57, 58; Mills v. Barber, 4 Day, 428; United States Bank
v. Binney, 5 Mason, 187, 188; Etheridge v. Binney, 9 Pick. 272, 275; Winship v.
United States Bank, 5 Pet. 529; Le Roy v. Johnson, 2 Pet. 186; Pothier, Traité
du Con. de Soc. n. 96-105; Story on Partn. [§ 102]; Everit v. Strong, 5 Hill (N. Y.),
163;
Gano v. Samuel, 14 Ohio, 592. One partner may be restrained by injunction
from accepting and indorsing bills, the produce of which is intended to be applied
to other than partnership purposes. Lord Ch. Brougham, 2 Russ. & My. 470, 486.
An ordinary partnership, under the Louisianian Code, art. 2843, 2845, differs in this
respect from commercial partnerships, under the law-merchant, for in that code ordi-
nary partners are not bound in solido for the debts of the partnership; and no one part-
ner can bind the others, unless they have given him power to do so, either specially
or by the articles of partnership, though the other partners may be bound ratably,
if the partnership was benefited by the act.
(b) Mason v. Rumsey, 1 Camp. 384. In the case of commercial partnerships
there is a general authority by the law-merchant for each partner to bind the firm
in its ordinary business; but partners in other business, as attorneys, for instance,
have no such general authority, and cannot bind the firm by negotiable paper with-
out special authority. Hedley v. Bainbridge, 2 G. & D. 483; Levy v. Payne, 1 Carr.
& M. 453.
(c) In Hall v. Smith, 1 B. & C. 407, it was held, that if one partner only signed a
note on behalf of himself and the other partners, he was liable at law to be sued
singly. But that case is overruled, and the partnership is liable as for a joint note.
Er parte Buckley, 15 L. J. N. s. By. 3; 5 N. Y. Leg. Obs. 82.
1 Hill v. Voorhies, 22 Penn. St. 68;
Crozier ». Kirker, 4 Texas, 252. Sec
Hamilton v. Summers, 12 B. Mon. 11.
But see Heenan v. Nash, 8 Minn. 407.
[ 44 ]
LECT. XLIII.]
* 42
OF PERSONAL PROPERTY.
* 42
solely on the security of the borrower. (d)2 If, however,
* the bill be drawn by one partner, in his own name, upon
the firm or partnership account, the act of drawing has been
held to amount, in judgment of law, to an acceptance of the bill
by the drawer in behalf of the firm, and to bind the firm as an
accepted bill. (a) And though the partnership be not bound at
law in such a case, it is held that equity will enforce payment
from it, if the bill was actually drawn on partnership account. (b)
Even if the paper was made in a case which was not in its nature
a partnership transaction, yet it will bind the firm if it was done
in the name of the firm, and there be evidence that it was done
under its express or implied sanction. (c) But if partnership
security be taken from one partner, without the previous knowl
edge and consent of the others, for a debt which the creditor.
knew at the time was the private debt of the particular partner,
it would be a fraudulent transaction, and clearly void in respect
to the partnership. (d) So, if from the subject-matter of the
contract, or the course of dealing of the partnership, the creditor
was chargeable with constructive knowledge of that fact, the
partnership is not liable. (e) There is no distinction in principle
upon this point between general and special partnerships; and
the question, in all cases, is a question of notice, express or con-
structive. All partnerships are more or less limited. There is
none that embraces, at the same time, every branch of business;
(d) Siffkin v. Walker, 2 Camp. 308; Ripley v. Kingsbury, 1 Day, 150, note; Emly
v. Lye, 15 East, 7; Loyd v. Freshfield, 2 Carr. & P. 325; Bevan v. Lewis, 1 Sim. 376;
Faith v. Richmond, 11 Ad. & El. 339; Foley v. Robards, 3 Ired. (N. C.) 179, 180;
Jaques v. Marquand, 6 Cowen, 497; Willis v. Hill, 2 Dev. & Batt. 231; Pothier, de
Société, n. 100, 101.
(a) Dougal v. Cowles, 5 Day, 511.
(b) Van Reimsdyk v. Kane, 1 Gall. 630.
(c) Ex parte Peele, 6 Ves. 602.
(d) Arden v. Sharpe, 2 Esp. 524; Shirreff v. Wilks, 1 East, 48; Ex parte Bonbonus,
8 Ves. 540; Livingston v. Hastie, 2 Caines, 246; Lansing v. Gaine, 2 Johns. 300;
Baird v. Cochran, 4 Serg. & R. 397; Chazournes v. Edwards, 3 Pick. 5; Cotton v.
Evans, 1 Dev. & Batt. Eq. 284; Spencer, J., Dob v. Halsey, 16 Johns. 34, 38; Frank-
land v. M’Gusty, 1 Knapp P. C. 301, 306; Story on Partn. [§§ 130–133 ]
(e) Green v. Deakin, 2 Stark. 347; New York Firemen Insurance Company v.
Bennett, 5 Conn. 574.
2 Farmers' Bank of Mo. v. Bayless, 35
Mo. 428; Logan v. Bond, 13 Ga. 192;
Holmes v. Burton, 9 Vt. 252; Hammond
v. Aiken, 3 Rich. Eq. 119; Hogan v. Rey-
nolds, 8 Ala. 59; Nicholson v. Ricketts,
2 El. & El. 497. But compare Beebe v.
Rogers, 3 G. Greene (Iowa), 319; Pearce
v. Wilkins, 2 Comst. 469; Folk v. Wil-
son, 21 Md. 538.
[ 45 ]
* 43
[PART V.
OF PERSONAL PROPERTY.
and when a person deals with one of the partners in a matter not
within the scope of the partnership, the intendment of law
* 43 * will be, unless there be circumstances or proof in the
case to destroy the presumption, that he deals with him on
his private account, notwithstanding the partnership name be
assumed. (a) The conclusion is otherwise if the subject-matter
of the contract was consistent with the partnership business; and
the defendants in that case would be bound to show that the
contract was out of the regular course of the partnership deal-
ings. (b) When the business of a partnership is defined, known,
or declared, and the company do not appear to the world in any
other light than the one exhibited, one of the partners cannot
make a valid partnership engagement, except on partnership
account. There must be at least some evidence of previous
authority beyond the mere circumstance of partnership, to make
such a contract binding. If the public have the usual means of
knowledge given them, and no acts have been done or suffered
by the partnership to mislead them, every man is presumed to
know the extent of the partnership with whose members he
deals; and when a person takes a partnership engagement, with-
out the consent or authority of the firm, for a matter that has
no reference to the business of the firm, and is not within the
scope of its authority or its regular course of dealing, he is, in
(a) Ex parte Agace, 2 Cox, 312; Livingston v. Roosevelt, 4 Johns. 251, 277, 278;
Spencer, J., Dob v. Halsey, 16 Johns. 38; Foot v. Sabin, 19 id. 154; Laverty v. Burr,
1 Wendell, 529; U. S. Bank v. Binney, 5 Mason, 176; Davenport v. Runlett, 3 N. H.
386; Thicknesse v. Bromilow, 2 Crompt. & Jerv. 425-435. The presumption of
fraud in the creditor taking partnership security or credit from one partner for his
private debt may be rebutted, but the burden of proof rests on the creditor. Frank-
land v. M'Gusty, 1 Knapp P. C. 305; Gansevoort v. Williams, 14 Wend. 133; Story
on Partn. [§ 133;] Mauldin v. Branch Bank, 2 Ala. 502, 512.
(b) Doty v. Bates, 11 Johns. 544.
1 The rule as to the burden of proof 351. But where the security of one firm
stated in note (a) is sustained by Lever- is given to pay the debt of another by
son v. Lane, 13 C. B. N. s. 278; correct- one who is a common member of both, this
ing a dictum in Ridley v. Taylor, inf. 44, rule has been held not to apply. Murphy
n. (a). See, also, King v. Faber, 22 Penn. v. Camden, 18 Mo. 122; Tutt v. Addams,
St. 21: Clay v. Cottrell, 18 Penn. St. 408; 24 Mo. 186. The reasons for applying
Robinson v. Aldridge, 34 Miss. 352; it, however, seem to be as strong as in the
Powell v. Messer, 18 Tex. 401; Miller v. former case. See McQuewans v. Hamlin,
Hines, 15 Ga. 197; Williams v. Brimhall, 35 Penn. St. 517; Rollins v. Stevens, 31
13 Gray, 462; Venable v. Levick, 2 Head, Me. 454.
[ 46 ]
LECT. XLIII.]
* 44
OF PERSONAL PROPERTY.
judgment of law, guilty of a fraud. (c) It is a well established
doctrine, that one partner cannot rightfully apply the partnership
funds to discharge his own preëxisting debts, without the express
or implied assent of the other partners. This is the case even if
the creditor had no knowledge at the time of the fact of the fund
being partnership property. (d) The authority of each partner to
dispose of the partnership funds strictly and rightfully extends
only to the partnership business, though in the case of bona fide
purchasers, without notice, for a valuable consideration, the
partnership may, in certain cases, be bound by the act of one
partner. (e)
But if the negotiable paper of a firm be given by one partner
on his private account, and that paper, issued within the general
scope of the authority of the firm, passes into the hands of a bona
fide holder, who has no notice, either actually or constructively,
of the consideration of the instrument; or if one partner should
purchase, on his private account, an article in which the
firm dealt, or which had an immediate * connection with *44
the business of the firm, a different rule applies, and one
which requires the knowledge of its being a private and not a
partnership transaction to be brought home to the claimant.
These are general principles, which are considered to be well
established in the English and American jurisprudence. (a)¹
(c) Abbott, C. J., and Bayley, J., Sandilands v. Marsh, 2 B. & Ald. 673; Dickinson
v. Valpy, 1 Lloyd & Wels. 6; s. c. 10 B. & C. 128; Livingston v. Roosevelt, 4 Johns.
278, 279; Crosthwait v. Ross, 1 Humph. (Tenn.) 23; Story on Partn. [§§ 112, 130–133.]
(d) Rogers v. Batchelor, 12 Peters, 229; Dob ". Halsey, 16 Johns. 34; Evernghim
v. Ensworth, 7 Wend. 326. The true principle, says Mr. Justice Story (on Partner-
ship, p. 212, note), to be extracted from the authorities is, that one partner cannot
apply the partnership funds or securities to the discharge of his own private debt,
without their consent, and that, without their consent, their title to the property is
not diverted in favor of such separate creditor, whether he knew it to be partnership
property or not. His right depends, not upon his knowledge that it was partnership
property, but upon the fact, whether the other partners had assented to such disposi
tion of it or not.
(e) Ex parte Goulding, before Sir John Leach, and confirmed on appeal by Lord
Lyndhurst, Collyer on Partn. 283, 284; Dob v. Halsey, 16 Johns. 34; Evernghim v
Ensworth, 7 Wend. 326; Rogers v. Batchelor, 12 Peters, 221; Story on Partn. p. 205
(a) Ridley v. Taylor, 13 East, 175; Williams v. Thomas, 6 Esp. 18; Lord Eldon,
1 Gildersleeve v. Mahony, 5 Duer, 283,
388; Roth v. Colvin, 32 Vt. 125; Babcock
v. Stone, 3 McL. 172; Duncan v. Clark,
2 Rich. 587; post, 64, n. 1. But compare
Cooper v. McClurkan, 22 Penn. St. 80;
Roth v. Colvin, sup., as to when a party
is put on inquiry.
[ 47 ]
* 44
[PART V.
OF PERSONAL PROPERTY.
With respect to the power of each partner over the partnership
property, it is settled, that each one, in ordinary cases, and in the
absence of fraud on the part of the purchaser, has the complete
jus disponendi of the whole partnership interests, and is con-
sidered to be the authorized agent of the firm. He can sell the
effects, or compound or discharge the partnership debts. This
power results from the nature of the business, and is indispen-
sable to the safety of the public, and the successful operations of
the partnership. He is an agent of the whole for the purpose of
carrying on the business. (b)2 A like power in each partner exists
Ex parte Peele, 6 Ves. 604, and Ex parte Bonbonus, 8 Ves. 544; Arden v. Sharpe, 2
Esp. 524 Wells v. Masterman, ib. 731; Bond v. Gibson, 1 Camp. 185; Usher v.
Dauncey, 4 id. 97; Livingston v. Roosevelt, 4 Johns. 251, 265; New York Firemen
Insurance Company v. Bennett, 5 Conn. 574; Rogers v. Batchelor, 12 Peters, 221.
(b) Fox v. Hanbury, Cowp. 445; Best, J., in Barton v. Williams, 5 B. & Ald. 395;
Pierson v. Hooker, 3 Johns. 68. It is a point not quite settled, whether one part-
ner, without the knowledge or consent of his copartner, though under circum-
stances, may not assign over all the partnership effects and credits in the name of the
firm, to pay the debts of the firm, and where all the creditors are admitted to an equal
participation, the conclusion is that he may. Harrison v. Sterry, 5 Cranch, 289; Mills
v. Barber, 4 Day, 428; Lamb v. Durant, 12 Mass. 54; Pothier, Traité du Con. de
Soc. n. 67, 69, 72, 90; Robinson v. Crowder, 4 M'Cord (S. C.), 519; Hodges .
Harris, 6 Pick. 360; Deckard v. Case, 5 Watt. 22; Hitchcock v. St. John, 1 Hoff.
Ch. 511; Anderson v. Tompkins, 1 Brock. 456. He may give a preference to one
creditor over another; though whether it might be made to a trustee for that purpose,
against the known wishes of the copartner, so as to terminate the partnership, was
left an unsettled point in Egberts v. Wood, 3 Paige, 517. Same doubt expressed in
2 Power to transfer all the Firm Property.
-It has been held that one partner has
power, in the absence of fraud, to trans-
fer all the property of the partnership in
payment of one or more of its debts, with
out the knowledge or consent of the other;
Mabbett v. White, 12 N. Y. (2 Kern.)
442; Graser v. Stellwagen, 25 N. Y. 315;
but see Sloan v. Moore, 37 Penn. St. 217;
or to a trustee for the same purpose,
without preferences, if the other partner
is absent; Lasell v. Tucker, 5 Sneed, 1;
Barcroft v. Snodgrass, 1 Coldw. 430;
Forbes v. Scannell, 13 Cal. 242; Kemp
v. Carnley, 3 Duer, 1; Kelly v. Baker, 2
Hilton, 531; but it has been said to be
otherwise if the other could have been
consulted. Fisher v. Murray, 1 E. D.
Smith 311. Sec Hughes v. Ellison, 5
Mo. 463; Stein v. La Dow, 13 Minn. 412.
Williams v. Roberts, 6 Coldw. 493. On
the other hand, the power of two of
three partners to make an assignment of
all the firm property to a trustee for the
payment of debts giving preferences,
without the knowledge or consent of the
third, has been denied by courts which
affirmed the power to make such a trans-
fer to the creditor directly. Welles v.
March, 30 N. Y. 344 (citing Robinson v.
Gregory, in the same court, Dec. 1863,
which seems to have reversed s. c. 29
Barb. 560); Kirby v. Ingersoll, 1 Doug.
(Mich.) 477; s. c. Harr. Ch. 172; Ormsbee
v. Davis, 5 R. I. 442. See Bull v. Harris,
18 B. Mon. 195. But it is affirmed in
M'Cullough v. Sommerville, 8 Leigh, 415.
(In this case the other partner lived in
another State.)
[ 48 ]
LECT. XLIII.]
* 45
OF PERSONAL PROPERTY.
in respect to purchases on joint account; and it is no matter with
what fraudulent views the goods were purchased, or to what pur-
poses they are applied by the purchasing partner, if the seller be
clear of the imputation of collusion. A sale to one partner, in a
case within the scope and course of the partnership busi-
ness, is, in judgment of law, *a sale to the partnership. (a) *45
But if the purchase be contrary to a stipulation between
the partners, and that stipulation be made known to the seller,
or if, before the purchase or delivery, one of the partners
expressly forbids the same on joint account, it has been repeat-
edly decided, that the seller must show a subsequent assent of
the other partners, or that the goods came to the use of the
firm. (6)¹ This salutary check to the power of each partner to
bind the firm was derived from the civil law. In re pari potiorem
causam esse prohibentis constat. (c) It has been questioned, how-
ever, whether the dissent of one partner, where the partnership
consists of more than two, will affect the validity of a partner-
ship contract in the usual course of business, and within the
scope of the concern, made by the majority of the firm. The
efficacy of the dissent was, in some small degree, shaken by the
Court of Exchequer, in Rooth v. Quin; (d) and in Kirk v. Hodg-
Pearpoint v. Graham, 4 Wash. 232. But that point was afterwards settled in Havens
v. Hussey, 5 Paige, 30; and it was decided, that there was no implied authority in one
partner, without the consent of the others, to appoint a trustee for the partnership, by
a general assignment of the partnership effects for the benefit of creditors, and giving
preferences. Such an assignment would be illegal, inequitable, and void. The other
copartners have a right to participate in the selection of the trustee, and in the cred-
itors to be preferred. Hitchcock v. St. John, 1 Hoff. Ch. 516; Kirby v. Ingersoll,
Harr. Ch. (Mich.) 174; Dana v. Lull, 17 Vt. 390; Gibson, C. J., 8 Watts & S. 63,
S. P. There is no small difficulty, says Mr. Justice Story, in supporting the doctrine,
even under qualifications, that one partner may make a general assignment of all the
partnership property, so as to break up its operations. Story on Partn. [§ 101.]
This I consider to be the soundest conclusion to be drawn from the conflicting
authorities.
(a) Willett v. Chambers, Cowp. 814; Rapp v. Latham, 2 B. & Ald. 795; Bond v.
Gibson, 1 Camp. 185; Baldwin, J., 5 Day, 515; Spencer, J., 15 Johns. 422.
(b) Willis v. Dyson, 1 Starkie, 164; Galway v. Matthew, 1 Camp. 403; 10 East,
264, s. c.; Leavitt v. Peck, 3 Conn. 124; Gow on Partn. 48, 49, 54-56; Feigley v.
Sponcbeyer, 5 Watts & S. 566.
(c) Dig. 10. 3. 28; Pothier, Traité du Con. de Soc. n. 90.
(d) 7 Price, 193.
1 But a payment to one partner is
good although forbidden by the other.
VOL. III.
4
Noyes v. New Haven, &c., R.R., 30 Conn.
1. See Granger v. McGilvra, 24 Ill. 152.
[ 49 ]
* 46
[PART V
OF PERSONAL PROPERTY.
son, (e) it was considered that the act of the majority, done in
good faith, must govern in copartnership business, and control
the objection of the minority, unless special provision in the
articles of association be made to the contrary. But this last
decision related only to the case of the management of the inte-
rior concerns of the partners among themselves, and to that it is
to be confined. (f) The weight of authority is in favor of the
power of a majority of the firm, acting in good faith, to bind the
minority in the ordinary transactions of the partnership, and
when all have been consulted. (g)² It seems, also, to be the bet-
ter opinion, that it is in the power of any one partner to interfere
and arrest the firm from the obligation of an inchoate purchase
which is deemed injurious. (h) This is the rule in ordinary cases
*
by the civil law, and in France, (i) and yet, if by the terms
*46 of the partnership, the management of its business be
confided to one of the partners, the exercise of his powers
in good faith will be valid, even against the will, and in opposi-
tion to the dissent of the other members. (a)
A partner may pledge, as well as sell, the partnership effects,
in a case free from collusion, if done in the usual mode of deal-
ing, and in relation to the trade in which the partners are en-
gaged, or when the pawnee had no knowledge that the property
was partnership property. (b) But this principle does not ex-
tend to part-owners engaged in a particular purchase; for they
are regarded as tenants in common, and no member can convey
(e) 3 Johns. Ch. 400.
(ƒ) The rule of the common law was, that in associations of a public or general
nature, the voice of the majority governed, but in private associations the majority
could not conclude the minority. Co. Litt. 181, b; Viner, tit. Authority, B.; Liv-
ingston v. Lynch, 4 Johns. Ch. 573, 597. See Story on Partn. [§ 125.]
(g) Const v. Harris, Turner & Russ. 517, 525; Collyer on Partn. 105; Story on
Partn. [§ 123.]
(h) Willis v. Dyson, 1 Starkie, 164; Leavitt v. Peck, 3 Conn. 124.
(i) Dig. 10. 2. 28; Pothier, de Société, n. 87 to n. 91; Story on Partn. [§§ 124, 427 ]
(a) Pothier, Traité du Con. de Soc. n. 71, 90. This is also the rule in Louisiana.
Code, art. 2838, 2839, 2841.
(b) Raba v. Ryland, Gow, 132; Tupper v. Haythorne, in chancery, reported in a
note to the case in Gow.
2 Johnston v. Dutton, 27 Ala. 245;
Western Stage Co. v. Walker, 2 Iowa,
504. But if a majority undertake to act
contrary to the stipulations of written part-
nership articles, the others may withdraw
from the firm. Abbot v. Jolinson, 32 N.
H. 9. See note on ultra vires, ante, ii. and
5 Am. Law Rev. 272, 287.
[ 50 ]
LECT. XLIII.]
46
OF PERSONAL PROPERTY.
to the pawnee a greater interest than he himself has in the con-
cern. (c) And if one partner acts fraudulently with strangers
in a matter within the scope of the partnership authority, the
firm is, nevertheless, bound by the contract. The connection
itself is a declaration to the world of the good faith and integ-
rity of the members of the association, and an implied undertak-
ing to be responsible for the acts of each within the compass of
the partnership concerns. (d) ¹
(5) How far by Guaranty. — It was formerly understood that
one partner might bind his copartners by a guaranty, or letter
of credit, in the name of the firm; (e) and Lord Eldon, in the
case Ex parte Gardom, (f) considered the point too clear for
argument. But a different principle seems to have been adopted;
and it is now held, both in England and in this country, that one
partner is not authorized to bind the partnership by a guar-
(c) Barton v. Williams, 5 B. & Ald. 395.
(d) Willet v. Chambers, Cowp. 814; Rapp v. Latham, 2 B. & Ald. 795; Longman
v. Pole, Danson & Lloyd, 126; Bond v. Gibson, 1 Camp. 185. Hume v. Bolland, 1
Ryan & Moody, 371; 6 B. & C. 561; M. & M. Bank v. Gore, 15 Mass. 75; Hadfield
v. Jameson, 2 Munf. 53. But a tort, or even a fraud, committed by one of the part-
ners, will not bind the partnership, if it be not in the matter of contract, and there be
no participation in it. Parsons, C. J., Pierce ». Jackson, 6 Mass. 245; Sherwood v.
Marwick, 5 Greenl. 295. There are exceptions, however, to this rule. Partners are
responsible for the tortious acts of a copartner in the prosecution of the copartnership
business, as well as for the tortious acts and negligences of their servants, and a part-
ner himself may sometimes act in that capacity. Moreton v. Hardern, 4 B. & C. 223;
Attorney General v. Stanny forth, Bunb. 97; Collyer on Partn. 252–254, 296, 297, 305,
306, 307; Story on Partn. 257-260. But the servant must be employed by one of
them in the prosecution of the business of the partnership. Waland v. Elkins, 1
Starkie, 272; Bostwick v. Champion, 11 Wend. 571.
(e) Hope v. Cust, cited in 1 East, 53.
1 Blair v. Bromley, 5 Hare,542, affirmed,
2 Ph. 354; Sadler v. Lee, 6 Beav. 324;
De Ribeyre v. Barclay, 23 Beav. 107;
Eager v. Barnes, 31 Beav. 579; Alliance
Bank v. Tucker, 15 W. R. 992; Earl of
Dundonald v. Masterman, L. R. 7 Eq. 501;
St. Aubyn r. Smart, L. R. 3 Ch. 646; L.
R. 5 Eq. 183; Griswold v. Haven, 25 N.
Y. 595; French v. Rowe, 15 Iowa, 563;
Pierce v. Wood, 3 Fost. (23 N. H.) 519.
But the act must be within the scope of
the partnership business. Harman v.
Johnson, 2 El. & Bl. 61; Sims v. Brutton,
5 Exch. 802; Bishop v. Countess of Jersey,
(f) 15 Ves. 286.
2 Drew. 143; Bourdillon v. Roche, 27 L.
J. N. s. Ch. 681; Hutchins v. Turner, 8
Humph. 415; Alliance Bank v. Kearsley,
L. R. 6 C. P. 433. See also Coomer v.
Bromley, 5 De G. & Sm. 532; 12 Eng. L.
& Eq. 307. Instances in which the mem-
bers have been held liable for a tort com-
mitted by one of their number without
their participation are Lloyd v. Bellis, 27
L. T. 203; 37 Eng. L. & Eq. 545; Linton
v. Hurley, 14 Gray, 191. See Castle v.
Bullard, 23 How. 172; McKnight v. Rat-
cliff, 44 Penn. St. 156.
[ 51 ]
4'
[PART V.
OF PERSONAL PROPERTY.
*47 anty of the debt * of a third person, without a special
authority for that purpose, or one to be implied from the
common course of the business, or the previous course of dealing
between the parties, unless the guaranty be afterwards adopted
and acted upon by the firm. The guaranty must have reference
to the regular course of business transacted by the partnership,
and be confined to advances made or credit given to the partner-
ship as then constituted, and not extended to new advances or
credits, after a change of any of the original partners by death
or retirement, and then it will be obligatory upon the company;
and this is the principle on which the distinction rests. (a) The
same general rule applies when one partner gives the copart-
nership as a mere and avowed surety for another, without the
authority or consent of the firm, for this would be pledging the
partnership responsibility in a matter entirely unconnected with
the partnership business. (b)
2
(6) How far by Deed. - Nor can one partner charge the firm
by deed, with a debt, even in commercial dealings. It would
be inconsistent with technical rules, and contrary to the general
policy of the law; for the execution of a deed requires a special
authority; and such a power has been deemed by the English
courts to be of dangerous tendency, as it would enable ore part-
ner to give to a favorite creditor a mortgage or a lien on the real
estates of the other partners. (c) But one partner, by the spe-
(a) Duncan v. Lowndes, 3 Camp. 478; Sandilands v. Marsh, 2 B. & Ald. 673;
Crawford v. Stirling, 4 Esp. 207; Sutton v. Irwine, 12 Serg. & R. 13; Ex part : Nolte,
2 Glyn & J. 295; Hamill v. Purvis. 2 Penn. 177; Story on Partn. [§§ 127, 24, 251;]
Cremer v. Higginson, 1 Mason, 323; Myers v. Edge, 7 T. R. 254; Strange v. Lee, 3
East, 490; Weston v. Barton, 4 Taunt. 673, 682; Pemberton v. Oakes, 4 Russ, 154;
Dry v. Davy, 10 Ad. & El. 30.
(b) Foot v. Sabin, 19 Johns. 154; New York Firemen Insurance Company v. Ben-
nett, 5 Conn. 574; Laverty v. Burr, 1 Wendell, 531. See, also, the same point, 7
Wend. 158; 14 id. 146; 15 id. 364; Andrews v. Planters' Bank, 7 Smedes & Marsh.
192.
(c) Collyer on Partn. 308-312; McNaughten v. Partridge, 11 Ohio, 223. A custom-
house bond for duties given by one partner will not bind the firm. Metcalfe v.
Rycroft, 6 Maule & Selw. 75; Elliot v. Davis, 2 Bos. & P. 338. The act of Con-
gress of 1st March, 1823, c. 149, sec. 25, has, however, rendered such bonds, given in
1 Brettel v. Williams, 4 Exch. 623;
Hasleham v. Young, 5 Q. B. 833. See
Alliance Bank v. Tucker, 15 W. R. 992;
Sweetser v. French, 2 Cush. 309; Selden
▸ Bank of Commerce, 3 Minn. 166.
2 Rollins v. Stevens, 31 Me. 454,
Langan v. Hewett, 13 Sm. & Marshı. 122;
McQuewans v. Hamlin, 35 Penn. St. 517.
[ 52 ]
LECT. XLIII.]
* 48
OF PERSONAL PROPERTY.
cial authority of his copartners under seal, and, if in their presence,
by parol authority, may execute a deed for them in a transaction
in which they were all interested. It amounts, in judgment of
law, to an execution of the deed by all the partners, though
sealed by one of them only; and this is the case, if the other
partners, by assent or acts, subsequently ratify the deed. (d)
The general doctrine of the English law on this point has been
clearly recognized and settled by numerous decisions in our
* American courts. (a) ¹ The more recent cases have very
* 48
considerably relaxed the former strictness on this subject;
and while they profess to retain the rule itself, they qualify it
exceedingly, in order to make it suit the exigencies of commer-
1
this country, binding upon the firm. Harrison v. Jackson, 7 T. R. 207; Montgomery
v. Boone, 2 B. Mon. 244; Turbeville v. Ryan, 1 IIumph. (Tenn.) 113; Story on Partn.
[§ 117.]
(d) Ball v. Dunsterville, 4 T. R. 313; Williams v. Walsby, 4 Esp. 220; Steiglitz
v. Egginton, 1 Holt N. P. 141; Brutton v. Burton, 1 Chitty, 707; Swan v. Stedman,
4 Met. 518.
(a) Gerard v. Basse, 1 Dall. 119; Green v. Beals, 2 Caines, 254; Clement v. Brush,
3 Johns. Cas. 180; Mackay v. Bloodgood, 9 Johns. 285; Anon. 2 Hayw. (N. C.) 99;
Mills v. Barber, 4 Day, 428; Garland v. Davidson, 3 Munf. 189; Hart v. Withers, 1
Penn. 285; Posey v. Bullitt, 1 Blackf. (Ind.) 99: Skinner v. Dayton, 19 Johns. 513;
1 Wendell, 326; 9 id. 439; Nunnely v. Doherty, 1 Yerg. (Tenn.) 26; Swan v. Sted-
man, 4 Met. 548.
1 Instruments under Seal. Schmertz
v. Shreeve, 62 Penn. St. 457. It is ad-
mitted in Schmertz v. Shreeve, that if
one partner is expressly authorized to
make a certain executory contract, and
makes it by an instrument under seal,
the seal is surplusage, and that the other
will be liable as on a simple contract;
(citing Baum v. Dubois, 43 Penn. St.
260; Jones v. Horner, 60 Penn. St. 214.)
And the same doctrine has been applied
by other courts to contracts not specially
authorized, which, but for the seal, would
bind the firm. Purviance v. Sutherland,
2 Ohio St. 478; Human v. Cuniffe, 32
Mo. 316. See Ex parte Bosanquet, De
Gex, 432, 439; Daniel v. Toney, 2 Met-
calfe, (Ky.) 523. And when there is an
executed transaction which is within the
power of the partner, such as the sale and
delivery of merchandise, it will not matter
if a bill of sale under seal is added,
because that is only evidence of the act,
and does not change its nature. Schmertz
v. Shreeve, sup., and cases cited; Dubois's
Appeal, 38 Penn. St. 231; Sweetzer v.
Mead, 5 Mich. 107; Ex parte Bosanquet,
De Gex, 632.
Other cases confirming the text as to
the sufficiency of a parol ratification or
authority are Johns v. Battin, 30 Penn.
St. 84; Smith v. Kerr, 3 Comst. 144;
Gwinn v. Rooker, 24 Mo. 291; Ely v.
Hair, 16 B. Mon. 230. Gram v. Seton,
inf. n. (b), seems to be sustained by Mc-
Donald v. Eggleston, 26 Vt. 154; Drum-
right v. Philpot, 16 Ga. 424; Worrall
v. Munn, 1 Seld. 229, 240. Contra, Little
v. Hazzard, 5 Harringt. 291. So in case
of instruments affecting real estate. Wil
son v. Hunter, 14 Wis. 683; Haynes v.
Seachrest, 13 Iowa, 455; Lowery v. Drew,
18 Tex. 786; Herbert v. Hanrick, 16 Ala.
581.
[53]
49
[PART V.
OF PERSONAL PROPERTY.
:
cial associations. An absent partner may be bound by a deed
executed on behalf of the firm by his copartner, provided there
be either a previous parol authority or a subsequent parol adop-
tion of the act. (b)
One partner may, by deed, execute the ordinary release of a
debt belonging to the copartnership, and thereby bar the firm of
a right which it possessed jointly. This is within the general
control of the partnership funds, and within the right which each
partner possesses, to collect debts and receive payment, and to
give a discharge. The rule of law and equity is the same; and
it must be a case of collusion for fraudulent purposes, between
*
the partner and the debtor, that will destroy the effect of
*49 the release. (c) A release by one partner, to a partner-
ship debtor, after the dissolution of the partnership, has
been held to be a bar of any action at law against the debtor. (a)
So also in bankruptcy, one partner may execute a deed, and do
any other act requisite in proceedings in bankruptcy, and thereby
bind the partnership. This is another exception to the general
rule, that one partner cannot bind the company by deed. (b) Nor
can one partner bind the firm by a submission to arbitration, even
(b) Skinner v. Dayton, 19 Johns. 513; Anderson v. Tompkins, 1 Brock. 462;
Story on Partn. [§§ 119-122;] Cady v. Shepherd, 11 Pick. 405, 406; Bond v. Aitkin, 6
Watts & S. 165. In Jackson v. Porter, 20 Martin (La.), 200, it was admitted that
where a deed was executed by one partner in the name of the firm, parol evidence
was receivable to show the written assent of the other partner. The case of Gram v.
Seton & Bunker, in the city of New York, 1 Hall (N. Y.), 262, goes a great deal
further, and holds that one partner may execute, in the name of the firm, an instru-
ment under seal, necessary in the usual course of business, which will be binding
upon the firm, provided the partner had previous authority for that purpose; and such
authority need not be under seal, nor in writing, nor specially communicated for the specific
purpose, but it may be inferred from the partnership itself, and from the subsequent conduct of
the copartner implying an assent to the act. In Tennessee, the doctrine that a subsequent
ratification or a parol authority will render valid the act of one partner to bind the
other by deed is rejected, as being contrary to their established decisions. Turbeville
v. Ryan, 1 Humph. 113. This was adhering to the stern doctrine of the common law,
that it required a prior authority, under seal, or a subsequent ratification, under seal,
to make a sealed instrument, executed by one partner only, binding on the firm, and
which doctrine has become essentially relaxed in the commercial states.
(c) Tooker's Case, 2 Co. 68; Ruddock's Case, 6 Co. 25; Lord Kenyon, in Perry v.
Jackson, 4 T. R. 519; Stead v. Salt, 3 Bing. 101; Hawkshaw v. Parkins, 2 Swanst.
539; Pierson v. Hooker, 3 Johns. 68; Bruen v. Marquand, 17 Johns. 58; Salmon v.
Davis, 4 Binney, 375; Halsey v. Whitney, 4 Mason, 206, 232; Smith v. Stone, 4 Gill
& Johns. 310.
(a) Salmon v. Davis, 4 Binney, 375.
(b) Ex parte Hodgkinson, 19 Ves. 291.
[54]
LECT. XLIII.]
* 50
OF PERSONAL PROPERTY.
of matters arising out of the business of the firm. The principle
is, that there is no implied authority, except so far as it is neces-
sary to carry on the business of the firm. (c) It would also go to
deprive the other parties of their legal rights and remedies in the
ordinary course of justice. (d)
(7) How far by Admission of a Debt. The acknowledgment
of an antecedent debt by a single partner, during the continuance
of the partnership, will bind the firm equally with the creation of
the debt in the first instance; and it will take the case out of the
statute of limitations, if it be a clear and unqualified acknowl-
edgment of the debt. (e) Whether any such acknowledgment,
or promise to pay, if made by one partner after the dissolution
of the partnership, will bind a firm, or take a case out of the
statute as to the other partners, has been for some time an unset-
tled and quite a vexed question, in the books. In Whitcomb v.
Whiting, (f) it was held, that the admission of one joint maker
of a note took the case out of the statute as to the other maker,
and that decision has been followed in this country.(g) The
doctrine of that case has even been extended to acknowledgment
by a partner after this dissolution of the partnership, in
relation to antecedent transactions, on the ground that, *50
as to them, the partnership still continued. (a) But there
*
(c) Stead v. Salt, 3 Bing. 101; Karthaus v. Ferrer, 1 Peters, 222; Buchanan v. Curry,
19 Johns. 137; Lumsden v. Gordon, cited in 1 Stair's Institutions of the Law of
Scotland, 141, edit. by More, 1832. Contra, Taylor v. Coryell, 12 Serg. & R. 243;
Southard v. Steele, 3 Monroe, 443.
(d) Story on Partn. [§ 114.] By the civil and the French law, one partner cannot
compromise a suit, or submit a controversy to arbitration, without the consent of his
associates. Dig. 3. 3. 60; Pothier, de Société, n. 68. Nor can one partner retain an
attorney, with power to appear and act for the firm in an action against it, for this
would be beyond the ordinary duties of the relationship, and would expose the inno-
cent partner to judgment and execution without his knowledge or consent. Hambidge
v. De la Crouće, 3 C. B. 742.
(e) Pittam v. Foster, 1 B. & C. 248; Burleigh v. Stott, 8 id. 36; Collyer on Partn.
286-290. The same principle applies as to the admission or misrepresentation of facts
by one partner relative to a partnership transaction. Collyer on Partn. 290; Story
on Partn. [§ 107.]
(f) Doug. 652.
(g) Bound v. Lathrop, 4 Conn. 336; Hunt v. Bridgham, 2 Pick. 581; Ward v.
Howell, 5 Harr. & J. 60; Walton v. Robinson, 5 Ired. (N. C.) 341. By Mass.
R. S. c. 120, sec. 14, one joint promisor is not affected by the admission of the
other.
(a) Wood v. Braddick, 1 Taunt. 104; Lacy v. M'Neile, 4 Dowl. & Ryl. 7; Cady v.
Shepherd, 11 Pick. 408; Austin v. Bostwick, 9 Conn. 496; Hendricks v. Campbell,
[55]
*51
[PART V.
OF PERSONAL PROPERTY.
have been qualifications annexed to the general principle; for
after the dissolution of a partnership, the power of the members
to bind the firm ceases, and an acknowledgment of a debt will
not, of itself, be sufficient, inasmuch as that would, in effect, be
keeping the firm in life and activity. (b) To give that acknowl-
edgment any force, the existence of the original partnership debt
must be proved, or admitted aliunde; and then the confession
of a partner, after the dissolution, is admissible, as to demands
not barred by the statute of limitations. (c) Of late, however,
the decision in Whitcomb v. Whiting has been very much ques-
tioned in England; and it seems now to be considered as an un-
sound authority by the court which originally pronounced it. (d)
And we have high authority in this country for the conclusion,
that the acknowledgment by a partner, after the dissolution of
the partnership, of a debt barred by the statute of limitations,
will be of no avail against the statute, so as to take the debt out
of it as to the other partner, on the ground that the power to
create a new right against the partnership does not exist in any
partner after the dissolution of it; and the acknowledgment of a
debt, barred by the statute of limitations, is not the mere con-
tinuation of the original promise, but a new contract, springing
out of and supported by the original consideration. This is the
doctrine, not only in New York, Indiana, Pennsylvania, Tennes-
see, Georgia, and Louisiana, but in the Supreme Court of
States; (a) and the law in England and in
*51 the United
1 Bailey (S. C.), 522; Simpson v. Geddes, 2 Bay, 533; Fisher v. Tucker, 1 M'Cord
Ch. 190; Fellows v. Guimarin, Dudley (Ga.) 100; Brewster v. Hardeman, ib. 140;
Greenleaf v. Quincy, 3 Fairfield, 11.
(b) Hackley v. Patrick, 3 Johns. 536; Walden v. Sherburne, 15 id. 409; Baker v.
Stackpole, 9 Cowen, 420; Shelton v. Cocke, 3 Munf. 191; Chardon v. Colder, 2 Const.
(S. C.) 685; Fisher v. Tucker, 1 M'Cord Ch. 177, 179; Walker v. Duberry, 1 A. K.
Marsh. 189; Lachomette v. Thomas, 5 Rob. (La.) 172.
(c) Smith v. Ludlows, 6 Johns. 267; Johnson v. Beardslee, 15 id. 3; Cady v. Shep-
herd, 11 Pick. 400; Brisban v. Boyd, 4 Paige, 17; Greenleaf v. Quincy, 3 Fair
field, 11.
(d) Brandram v. Wharton, 1 B. & Ald. 463; Atkins v. Tredgold, 2 B. & C.
23. But in Perham v. Raynall, 9 Moore C. B. 566, the authority of the case of Whit-
comb v. Whiting is reinstated; and it was held to contain sound doctrine, to the extent
that an acknowledgment within the six years, by one of two makers of a joint and
several note, revives the debt against both, though the other had signed the note as a
surety. Pease v. Hirst, 10 B. & C. 122; Pritchard v. Draper, 1 Russ. & Myl.
191, S. P.
(a) Bell v. Morrison, 1 Peters, 351; Levy v. Cadet, 17 Serg. & R. 126; Searight
[56]
LECT. XLIII.]
* 51
OF PERSONAL PROPERTY.
this country seem equally to be tending to this conclusion. (b)
But there is a distinction between an acknowledgment which
goes to create a new contract, and the declarations of a partner,
made after the dissolution of the partnership, concerning facts
which transpired previous to that event; and declarations of that
character are held to be admissible. (c)
If, however, in the terms of dissolution of a partnership, one
partner be authorized to use the name of the firm in the prose-
cution of suits, he may bind all by a note for himself and his
partners, in a matter concerning judicial proceedings. (d)
(8) Dealing on Separate Account. The business and con-
tracts of a partner, distinct from and independent of the business
of the partnership, are on his own account; and yet it is said
v. Craighead, 1 Penn. 135; Yandes v. Lefavour, 2 Blackf. (Ind.) 371; Hopkins v.
Banks, 7 Cowen, 650; Baker v. Stackpoole, 9 id. 420; Brewster v. Hardeman, Dud-
ley, 138; Lambeth v. Vawter, 6 Rob. (La.) 128; Van Wyck v. Norvell, 2 Humph.
192; [ib. 166, 529;] Bispham v. Patterson, 2 McL. 87. In this last case, Mr. Justice
McLean considers the English rule, that the admission of one partner, made after the
dissolution of the partnership, and even of a payment made to him after the dissolu-
tion, is good evidence to bind the other partners, to be well settled and upon sound
principles; but he yields his better judgment to the contrary doctrine, settled by
the weight of American authority.
(b) This is contrary to a decision in North Carolina, in M'Intire v. Oliver, 2 Hawks,
209, and recognized in Willis v. Hill, 2 Dev. & Bat. 234, and in Walton v. Robinson,
5 Ired. 341; but it may now be considered as the better and more authorita-
tive, and perhaps the settled doctrine. By the English statute of 9th May, 1828,
entitled "An act rendering a written memorandum necessary to the validity of cer-
tain promises and engagements," it is declared, in reference to acknowledgments
and promises offered in evidence to take cases out of the statute of limitations, that
joint contractors, or executors, or administrators of any contractor, shall not be
chargeable in respect of any written acknowledgment of his cocontractor, &c.,
though such cocontractor, his executors, &c., may be rendered liable by virtue of
such new acknowledgment or promise. The like law in Mass. R. S. c. 120, sec. 14,
Gay v. Bowen, 8 Met. 100; Cady v. Shepherd, 11 Pick. 400.
(c) Parker v. Merrill, 6 Greenl. 41; Mann v. Locke, 11 N. H. 246.
(d) Burton v. Issit, 5 B. & Ald. 267.
¹ Van Keuren v. Parmalee, 2 Comst.
523; Shoemaker v. Benedict, 1 Kern.
(11 N. Y.) 176; Payne v. Slate, 39 Barb.
634; Reppert v. Colvin, 48 Penn. St. 248;
Exeter Bank v. Sullivan, 6 N. H. 124;
Pennoyer v. David, 8 Mich. 407; Myatts
v. Bell, 41 Ala. 222. See Bateman v.
Pinder, 3 Q. B. 574. But a partial pay-
ment to a creditor without notice of the
dissolution has been held to take the case
out of the statute. Tappan v. Kimball,
10 Fost. (30 N. H.) 136; Sage v. Ensign,
2 Allen, 215; Myers v. Standart, 11 Ohio
St. 29. And Whitcomb v. Whiting, sup.
50, seems still to be followed in Connecti-
cut. Bissell v. Adams, 35 Conn. 299, and
earlier cases cited; Beardsley v. Hall, 36
Conn. 270.
As to the next proposition in the text,
see Ide v. Ingraham, 5 Gray, 106.
[57]
* 52
[FART V.
OF PERSONAL PROPERTY.
that one partner cannot be permitted to deal on his own private
account in any matter which is obviously at variance with the
business of the partnership, and that the company would be
entitled to claim the benefit of every such contract. (e)2 The
object of this rule is to withdraw from each partner the tempta-
tion to bestow more attention, and exercise a sharper sagacity in
respect to his own purchases and sales, than to the concerns
* 52 of the partnership * in the same line of business. The rule
is evidently founded in sound policy; and the same rule is
applied to the case of a master of a vessel, charged with a cargo
for a foreign market, and in which he has a joint concern. (a)
But a person may become a partner with one individual of a
partnership, without being concerned in that partnership; for
though A. & B. are mercantile partners, A. may form a separate
partnership with C., and the latter would have no right to a
share in the profits, nor would he be bound for the engagements
of the house of A. & B., because his partnership would only
extend to the house of A. & C. (b)¹ But such involved partner-
(e) Pothier, Traité du Con. de Soc. n. 59; Glassington v. Thwaites, 1 Sim. & Stu.
133; Featherstonhaugh v. Fenwick, 17 Ves. 298; Burton v. Wookey, Mad. & Geld.
(6 Mad.) 367; Russell v. Austwick, 1 Sim. 52; Fawcett v. Whitehouse, 1 Russ & My.
132, 148. In the case from Vesey, one partner had secretly, for his own benefit,
obtained a renewal of the lease of the premises where the joint trade was carried
on, and the lease was held to be a trust for the benefit of the copartnership. See
infra, iv. 371.
(a) Boulay-Paty, Cours de Droit Com. ii. 94. [See Gardner v. M'Cutcheon, 4
Beav. 534.]
(b) Ex parte Barrow, 2 Rose's Cases in Bankr. 252; Glassington v. Thwaites, 1 Sim.
2 Bentley v. Craven, 18 Beav. 75; Love
v. Carpenter, 30 Ind. 284; Herrick v. Ames,
8 Bosw. 115. An injunction was granted
in England v. Curling, 8 Beav. 129;
Marshall v. Johnson, 33 Ga. 500.
As to leases, see Clegg v. Fishwick, 1
Macn. & G. 291; Clements v. Hall, 2 De
G. & J. 173; Anderson v. Lemon, 4 Seld.
236.
For the limits of the doctrine, see
Lock v. Lynam, 4 Ir. Ch. 188; Wheeler
v. Sage, 1 Wall. 518; Westcott v. Tyson,
38 Penn. St. 389; American Bank Note
Co. v. Edson, 1 Lans. 388; 56 Barb. 84.
1 Sub-partners. Mr. Lindley thinks
that before the case of Cox v. Hickman,
ante, 25, n. 1, a subpartner might perhaps
have been liable to the creditors of the
principal firm by reason of his participa
tion in the profits thereof, but that since
that decision such a liability cannot attach
to him. See Fairholm v. Marjoribanks,
Mor. Dec. (Scotch), 14558; 3 Ross. L. C.
on Comm. Law, 697 (published in Law
Library). Where the rule established in
Massachusetts prevails, ante, 25, n. 1, the
liability has been thought to exist. Fitch
v. Harrington, 13 Gray, 468.
But see
Story on P., § 70, Gray's note; Reynolds
v. Hicks, 19 Ind. 113.
As to suits between firms with a com-
mon member, see Cole ". Reynolds, 18
N. Y. 74; 5 Am Law Rev. 47; Rogers v.
Rogers, 5 Ired. Eq. 31.
[58]
LECT. XLIII.]
53
OF PERSONAL PROPERTY.
ships require to be watched with a jealous observation, and
especially if they relate to the business of the same kind, inas-
much as the attention of the person belonging to both firms
might be distracted in the conflicts of interest, and his vigilance
and duty in respect to one or the other of the concerns become
much relaxed. Partners are bound to conduct themselves with
good faith, and to apply themselves with diligence in the busi-
ness of the concern, and not to divert the funds to any purpose
foreign to the trust. (c)
III. Of the Dissolution of Partnership.—If a partnership be formed
for a single purpose or transaction, it ceases as soon as the busi-
ness is completed; and nothing can be more natural and reason-
able than the rule of the civil law, that a partnership in any
business should cease when there was an end put to the
business itself. (d) If the * partnership be for a definite *53
period, it terminates of course when the period arrives.
But in that case, and in the case in which the period of its dura-
tion is not fixed, it may terminate from various causes which I
shall now endeavor to explain, as well as trace the consequences
of the dissolution.
A partnership may be dissolved by the voluntary act of the
parties, or of one of them, and by the death, insanity, or bank-
& Stu. 124, 133. Lord Eldon there refers to the case of Sir Charles Raymond, as
containing the doctrine. It was also the doctrine of the civil law, and is the law of
those countries which follow the civil law. Socii mei socius, meus socius non est. Dig.
17. 2. 20; Pothier, Traité du Con. de Soc. n. 91; Ersk. Inst. ii. 6, 3, sec. 22; Bell's
Comm. ii. 654; Civil Code of Louisiana, art. 2842. There can be no doubt, said Lord
Ch. J. Eyre, 1 Bos. & P. 546, that, as between themselves, a partnership may
have transactions with an individual partner, or with two or more of the partners,
having their separate estate engaged in some joint concern, in which the general
partnership is not interested; and that they may convert the joint property of the
general partnership into the separate property of an individual partner, or into the
joint property of two or more partners, or e converso. See, also, Gow on Partn. 75;
Collyer on Partn. 175-178; Story on Partn. [§ 219.]
(c) Stoughton v. Lynch, 1 Johns. Ch. 470; Long v. Majestre, ib. 305; Fawcett v.
Whitehouse, 1 Russ. & My. 132; Collyer on Partn. 96. If the partnership suffers
loss from the gross negligence, unskilfulness, fraud, or wanton misconduct of a part-
ner, in the course of their business, or from a known deviation from the partnership
articles, he is ordinarily responsible over to the other partners for all losses and
damages sustained thereby. Maddeford v. Austwick, 1 Sim. 89; Pothier, de Société,
n. 133; Story on Partn. [§§ 169–173.]
(d) Inst. 3. 26. 6. Extincto subjecto, tollitur adjunctum. Pothier, Traité du
Con. de Soc. n. 140-143, illustrates this rule in his usual manner, by a number of
plain and familiar examples. 16 Johns. 491, s. p.
[59]
* 54
[PART V.
OF PERSONAL PROPERTY.
ruptcy of either, and by judicial decree, or by such a change in
the condition of one of the parties as disables him to perform his
part of the duty. It may also be dissolved by operation of law,
by reason of war between the governments to which the partners
respectively belong, so as to render the business carried on by the
association impracticable and unlawful. (a)
(1) Of Dissolution by Voluntary Act. It is an established
principle in the law of partnership, that if it be without any
definite period, any partner may withdraw at a moment's notice,
when he pleases, and dissolve the partnership. (b)¹ The civil
law contains the same rule on the subject. (c) The existence
of engagements with third persons does not prevent the disso-
lution by the act of the parties, or either of them, though
those engagements will not be affected, and the partnership will
still continue as to all antecedent concerns, until they are duly
*
adjusted and settled. (d) A reasonable notice of the disso-
*54 lution might be very advantageous to the company, but it
is not requisite; and a partner may, if he please, in a case
free from fraud, choose a very unseasonable moment for the exer-
cise of his right. A sense of common interest is deemed a suffi-
cient security against the abuse of the discretion. (a) Though
the partnership be constituted by deed, a notice in the gazette
by one partner is evidence of a dissolution of the partnership
(a) Inst. 3. 26, sec. 7, 8; Vinnius, h. t. 3. 26. 4; Hub. in Inst. lib. 3, tit. 26, sec.
6; Pothier, Traité du Con. de Soc. n. 147, 148; 11 Ves. 5; 1 Swanst. 480, 508,
16 Johns. 491.
(b) Peacock v. Peacock, 16 Ves. 49; Featherstonhaugh v. Fenwick, 17 Ves. 298;
Lord Eldon, in 1 Swanst. 508.
(c) Inst. 3. 26. 4; Code, 4. 37. 5.
(d) Pothier, Traité du Con. de Soc. n. 150, says, that the dissolution by the act
of a party ought to be done in good faith, and seasonably, — debet esse facta bona fide
et tempestive. He states the case of an advantageous bargain for the partners being
in contemplation, and one of them, with a view to appropriate the bargain to him-
self, suddenly dissolves the partnership. A dissolution at such a moment, he justly
concludes, would be unavailing. This general rule was also the doctrine of the civil
law. Inst. 3, tit. 26; Dig. 17. 2. 65. 4; Domat, b. 1, tit. 8, sec. 5; Code Civil of
France, art. 1869, 1870, 1871; Code of Louisiana, art. 2855 to 2859; 2 Bell's Comm.
532, 533; United States v. Jarvies, [Daveis, 274.]
(a) 17 Ves. 308, 309.
1 Skinner v. Tinker, 34 Barb. 333;
Beaver v. Lewis, 14 Ark. 138. For some
qualifications, even when the partnership
is not for a definite period, or when a
power of expulsion is reserved, see Blisset
v. Daniel, 10 Hare, 493; Featherston-
haugh v. Turner, 25 Beav. 382; Allhusen
v. Borries, 15 W. R. 739.
[60]
LECT. XLIII.]
* 55
OF PERSONAL PROPERTY.
as against the party to the notice, even if the partnership articles
require a dissolution by deed. (b)
But if the partners have formed a partnership by articles for a
definite period, in that case, it is said, that it cannot be dissolved
without mutual consent before the period arrives. (c)¹ This is
the assumed principle of law by Lord Eldon, in Peacock v. Pea-
cock, (d) and in Crawshay v. Maule, (e) and by Judge Washing-
ton, in Pearpont v. Graham; (f) and yet, in Marquand v. New
York Man. Company, (g) it was held that the voluntary assign-
ment by one partner of all his interest in the concern dissolved
the partnership, though it was stipulated in the articles that the
partnership was to continue until two of the partners should
demand a dissolution, and the other partners wished the business
to be continued, notwithstanding the assignment. And in Skin-
ner v. Dayton, (h) it was held by one of the judges, (i) that
there was no such thing as an indissoluble partnership. It was
revocable in its own nature, and each party might, by giv-
ing *due notice, dissolve the partnership as to all future * 55
capacity of the firm to bind him by contract; and he had
the same legal power, even though the parties had covenanted
with each other that the partnership should continue for such a
period of time. The only consequence of such a revocation of
the partnership power in the intermediate time would be, that
the partner would subject himself to a claim of damages for a
breach of the covenant. (a) Such a power would seem to be
implied in the capacity of a partner to interfere and dissent from
a purchase or contract about to be made by his associates; and
(b) Doe dem. Waithman v. Miles, 1 Starkie, 181; Collyer on Partn. 154; Story
on Partn. [§ 271.]
(c) Gow on Partn. 303, 305, ed. Phil. 1825.
(d) 16 Ves. 56.
(f) 4 Wash. 234.
(h) 19 Johns. 538.
(e) 1 Swanst. 495.
(g) 17 Johns. 525; 1 Whart. 381, 388, s. p.
(i) Mr. Justice Platt.
(a) In Bishop v. Breckles, 1 Hoff. Ch. 534, it was considered to be rather doubt-
ful whether either party might dissolve the partnership at pleasure, upon due notice,
and yet the rule of the civil law was deemed the most reasonable. But Mr. Justice
Story, in his Commentaries on Partnership, [§ 275,] considers it quite unreasonable to
allow a partner to dissolve the partnership sua sponte from mere caprice and to the
great injury of the concern, and that it ought not to be done, except under reason-
able circumstances. See infra, 61.
¹ Smith v. Mulock, 1 Robertson, (N.Y.) case, mentioned in the text, see the cases
569. As to the principle of Marquand's cited 59, n. 1.
ง
[61]
* 56
[PART V.
OF PERSONAL PROPERTY.
the commentators on the Institutes lay down the principle as
drawn from the civil law, that each partner has a power to
dissolve the connection at any time, notwithstanding any con-
vention to the contrary, and that the power results from the
nature of the association. They hold every such convention null,
and that it is for the public interest that no partner should be
obliged to continue in such a partnership against his will, inas-
much as the community of goods in such a case engenders dis-
cord and litigation. (b)
The marriage of a feme sole partner would likewise operate as
a dissolution of the partnership; because her capacity to act
ceases, and she becomes subject to the control of her husband;
and it is not in the power of any one partner to introduce, by his
own act, the agency of a new partner into the firm. (c)
(2) By Death. The death of either party is, ipso facto, from
the time of the death, a dissolution of the partnership, however
numerous the association may be. The personal qualities of
*56 each partner enter into the consideration * of the contract,
and the survivors ought not to be held bound without a new
assent, when, perhaps, the abilities and skill, or character and
credit, of the deceased partner, were the inducements to the for-
mation of the connection. (a) Pothier says, that the represent-
atives of the deceased partner are bound by new contracts made
in the name of the partnership by the survivor, until notice be
given of the death, or it be presumed to have been received. (b)
But Lord Eldon was of opinion that the death of the partner
did, of itself, work the dissolution; and he was not prepared to
say, notwithstanding all he had read on the subject, that a de-
ceased partner's estate became liable to the debts of the continu-
(b) Adeo autem visum est ex natura esse societatis unius dissensu totam dissolvi,
ut quamvis ab initio convenerit, ut societas perpetuo duraret, aut ne liceret ab ea
resilire invitis cœteris; tamen tale pactum, tanquam factum contra naturam societatis,
cujus in æternum nulla coitio est, contemnere licet. Vinnius, in Inst. 3. 26. 4, pl. 1;
Ferrière, ib. v. 156; Dig. 17. 2. 14; Dumat, b. 1, tit. 8, sec. 5, and art. 1 to 8, by
Strahan.
(c) Nerot v. Burnand, 4 Russ. 260.
(a) Pothier, Traité du Con. de Soc. n. 146; Inst. 3. 26. 5; Vinnius, h. t.; Pearce
v Chamberlain, 2 Ves. Sen. 33; Lord Eldon, Vulliamy v. Noble, 3 Meriv. 614;
Crawshay v. Maule, 1 Swanst. 509, and note, ib.
(b) Pothier, Traité du Con. de Soc. n. 156, 157. The Roman law also required
notice to the surviving partners of the death of any partner, before that event dis-
solved the partnership. Dig. 17. 2. 65. 10.
[ 62 ]
LECT. XLIII.]
* 57
OF PERSONAL PROPERTY.
1
ing partners, for want of notice of such dissolution. (c) In the
Roman law, and in the commentaries of the civilians, every sub-
ject connected with the doctrine of partnership is considered
with admirable sagacity and precision; but, in this instance, the
rule was carried so far, that even a stipulation that, in the case
of the death of either partner, the heir of the deceased should be
admitted into the partnership, was declared void. (d) The pro-
vision in the Roman law was followed by Argou, in his Institutes
of the old French law. (e) Pothier was of opinion, however,
that the civil law abounded in too much refinement on this
point; and that if there be a provision in the original articles of
partnership for the continuance of the rights of partnership in
the representatives of the deceased, it would be valid. (f) His
opinion has been followed in the Code Napoleon; (g) and in the
English law, such a provision in the articles of partnership
for * the benefit of the representatives of a deceased partner, * 57
is not questioned; and it was expressly sustained by Lord
Talbot. (a)
(c) Crawshay v. Collins, 15 Ves. 228; Kidder v. Taylor, cited in Gow on Part-
nership, 250; Vulliamy v. Noble, 3 Meriv. 614. The laws of Louisiana do not recog-
nize any authority in a surviving partner, and he cannot administer the effects of
the partnership until duly appointed administrator. Notrebe v. McKinney, 6 Rob.
(La.) 13.
(d) Dig. 17. 2. 35, 52, 49. [52, § 9
(e) Inst. au Droit François, 1, 3, c. 23.
(ƒ) Pothier, ub. sup. n. 145.
(g) Art. 1868.
(a) Wrexham v. Huddleston, 1 Swanst. 514, note; Crawshay v. Maule, 1 Swanst.
521; Collyer on Partn. 5, 6. See, also, Pearce v. Chamberlain, 2 Ves. Sen. 33; Bal-
main v. Shore, 9 Ves. 500; Warner v. Cunningham, 3 Dow, 76; Gratz v. Bayard, 11
Serg. & R. 41; Scholefield v. Eichelberger, 7 Peters, 586. If one partner, by will,
continues his share of stock in a partnership for a definite period, and the partnership
be continued after his death, and becomes insolvent, the partnership creditors have
no claim over the general creditors to the assets in the hands of the representatives of
the deceased, except as to the assets vested in the partnership funds. Ex parte Gar-
lawl, 10 Ves. 110; Pitkin v. Pitkin, 7 Conn. 307; Thompson v. Andrews, 1 My. &
Keen, 116. In the case of The Louisiana Bank v. Kenner's Succession, 1 La. 384,
after an extensive examination of the commercial laws and usages of Europe and the
United States, it was considered to be a doubtful point, whether stipulations in con-
tracts of partnership, that they may be continued after the death of one of the part-
1 And it was directly decided that it
did not in Marlett v. Jackman, 3 Allen,
287; see Bilton v. Blakely, 7 Grant,
Ch. (U. C.) 214, 216; (as to cases of
simple agency, ante, ii. 646, n. 1; Jacques
v. Worthington, 7 Grant, U. C. 192,)
death being said to be a public fact of
which all must take notice. But com-
pare Bank of New York v. Vanderhorst,
32 N. Y. 553. And as to the effect of the
death of a member of a joint-stock com-
pany, see Baird's Case, L. R. 5 Ch. 725,
734. As to the power of the survivors to
sell firm property, post, 64, n. 1.
[63]
#58
[PART V.
OF PERSONAL PROPERTY.
-
A community of interest still exists between the survivor and
the representatives of the deceased partner; and those represent-
atives have a right to insist on the application of the joint prop-
erty to the payment of the joint debts, and a due distribution of
the surplus. So long as those objects remain to be accomplished,
the partnership may be considered as having a limited continu-
ance. If the survivor does not account in a reasonable time, a
court of chancery will grant an injunction to restrain him from
acting, and appoint a receiver, and direct the accounts to be
taken. (b) ¹ If the surviving partner be insolvent, the effects in
the hands of the representatives of the deceased partner are lia-
ble, in equity, for the partnership debts; and it is no objection
1
to the claim that the creditor has not used due diligence in
* 58 prosecuting the surviving partner before * his insolvency;
for the debt is joint and several, and equally a charge upon
the assets of the deceased partner and against the person and
estate of the survivor. (a) ¹
1
ners for the benefit of the heirs, were binding on the latter without their consent.
They were not so binding in Louisiana at the time of the adoption of the code of
1808. The better opinion is, that they are not anywhere absolutely binding. It is
at the option of the representatives; and if they do not consent, the death of the
party puts an end to the partnership. If no notice or dissent be given, it is said that
a continuation of the partnership will be presumed. Pigott v. Bagley, M'Clel. & Y.
569; Kershaw v. Matthews, 2 Russ. 62; Collyer on Partn. 120-122. If the survivor
carries on the business without the assent of the representatives of the deceased part-
ner, they have their election to take a share of the profits or interest on the amount
of their share. Millard v. Ramsdell, Harr. Ch. (Mich.) 373. [Bernie v. Vandever,
16 Ark. 616.] The general principle is, that the assets of a deceased partner are not
liable for debts contracted after the testator's death, except under the direction of
his will, authorizing such continuance of the trade; and new creditors are confined
to the funds embarked in such trade, and to the personal responsibility of the party
who continues the trade, whether as executor, trustee, or partner, unless the testator
had, by will, bound his general assets. Burwell v. Mandeville, 2 How. 560.
(b) Ex parte Ruffin, 6 Ves. 126; Hartz v. Schrader, 8 Ves. 317; Ex parte Williams,
11 Ves. 5; Peacock v. Peacock, 16 Ves. 57; Wilson v. Greenwood, 1 Swanst. 480;
Crawshay v. Maule, ib. 506; Murray v. Mumford, 6 Cowen, 441; 16 Johns. 493.
(a) Hamersley v. Lambert, 2 Johns. Ch. 508; Miss Sleech's Case, in Devaynes v.
Noble, 1 Meriv. 539. The creditors of the firm may sue the surviving partner, and
1 Post, 61, n. 1; 63; Madgwick v.
Wimble, 6 Beav. 495; Walker v. House,
4 Md. Ch. 39; Bilton v. Blakely, 7 Grant,
Ch. (U. C.) 214, 216; Horrell v. Witts,
L. R. 1 P. & D. 103.
See on the point to which Ex parte
Garland is cited, in note (a), sup. Cutbush
v. Cutbush, 1 Beav. 184; M'Neillie v.
Acton, 4 De G., M. & G. 744; Scott v.
Izon, 34 Beav. 434; Richter v. Poppen-
husen, 39 How. Pr. 82.
See as to the personal liability of the
executor or trustees, ante, 33, n. 1.
1 See Brown v. Douglas, 11 Sim. 283:
[64]
LECT. XLIII.]
* 58
OF PERSONAL PROPERTY.
(3) By Insanity. - Insanity does not work a dissolution of
partnership, ipso facto. It depends upon circumstances under
the sound discretion of the Court of Chancery. But if the
lunacy be confirmed, and duly ascertained, it may now be laid
down as a general rule, notwithstanding the decision of Lord
Talbot to the contrary, that as partners are respectively to con-
tribute skill and industry, as well as capital, to the business
of the concern, the inability of a partner, by reason of lunacy,
is a sound and a just cause for the interference of the Court of
Chancery to dissolve the partnership, and have the accounts
taken, and the property duly applied. (6) ²
2
(4) By Bankruptcy. — Bankruptcy or insolvency, either of
the whole partnership or of an individual member, dissolves
a partnership; and the assignees become, as to the interest of
the bankrupt or insolvent partner, tenants in common with the
solvent partners, subject to all the rights of the other part-
ners; and a community of interest exists between them until the
the representatives of the deceased partner, for payment out of the assets of the
deceased, and without showing that the surviving partner was insolvent. . Wilkinson
v. Henderson, 1 My. & Keen, 582. A surviving partner may set off a debt of the
partnership against a demand against him in his own right, for he has the exclusive
control and settlement of the business. Slipper v. Stidstone, 5 T. R. 493; Craig v.
Henderson, 2 (Barr) Penn. St. 261.
(b) Wrexham v. Huddleston, cited in 1 Swanst. 514, note; Sayer v. Bennet, 1 Cox,
107; Waters v. Taylor, 2 Ves. & B. 301; Jones v. Noy, 2 My. & Keen, 125; Milne
v. Bartlett, Atkin & Wyatt, April, 1839. See ii. lec. 41, ad finem. The general
rule mentioned by Spencer, J., in 15 Johns. 57, that insanity works a dissolution of a
partnership, must be taken with the limitations in the text. Story on Partn.
[$ 295.]
Kimball v. Whitney, 15 Ind. 280; Vance
v. Cowing, 13 Ind. 460; Camp v. Grant,
21 Conn. 41; Fillyau v. Laverty, 3 Fla. 72.
In New York the English doctrine
stated in note (a) is not followed, but
it is held that the joint creditors have
no claim in equity against the estate of
the deceased partner, except when the
surviving partners are insolvent, or have
been proceeded against to execution at
law. Patterson v. Brewster, 4 Edw. Ch.
352; Lawrence v. Trustees of Orphan
House, 2 Den. 577; post, 64, n. (c); Voorhis
v. Childs, 17 N. Y. 354; Bennett v. Wool-
folk, 15 Ga. 213.
VOL III.
5
The doctrine of Slipper v. Stidstone,
note (a), is not followed in equity, and
the case is criticised in Lindley on P.
2d ed., 517, 524, citing Addis v. Knight,
2 Mer. 117.
2 Leaf v. Coles, 1 De G., M. & G. 171;
Anon., 2 K. & J. 441; Rowlands v. Evans,
30 Beav. 302. But see Davis v. Lane, 10
N. H. 156, 161. In Isler v. Baker, 6
Humph. 85, it was held that an inquisi-
tion of lunacy found against a partner
ipso facto dissolved the partnership, which
seems to be contrary to the English
cases.
[ 65 ]
* 59
[PART V.
OF PERSONAL PROPERTY.
affairs of the company are settled. The dissolution of the part-
nership follows necessarily under those statutes of bankruptcy
which avoid all the acts of the bankrupt from the day of his
bankruptcy, and from the necessity of the thing, as all the
*59 property of the bankrupt is vested in * his assignees, who
1
cannot carry on the trade. (a) A voluntary and bona fide
assignment by a partner of all his interest in the partnership stock
has the same effect, and dissolves the partnership. This is upon
the principle that a partnership cannot be compelled by the act
of one partner to receive a stranger into an association which is
founded on personal confidence. Socii mei socius, socius meus
non est. (b)¹ The dissolution takes place, and the joint tenancy is
severed, from the time that the partner, against whom the com-
mission issues, is adjudged a bankrupt, and the dissolution relates
back to the act of bankruptcy. The bankruptcy operates to
prevent the solvent partner from dealing with the partnership
property as if the partnership continued ; but in respect to the
past transactions, he has a lien on the joint funds for the purpose
of duly applying them in liquidation and payment of the partner-
ship debts, and is entitled to retain them until the partnership
accounts be taken. (c) If all the interest of a partner be seized
2
(a) Fox v. Hanbury, Cowp. 445; Lord Eldon, Ex parte Williams, 11 Ves. 5; Wil-
son v. Greenwood, 1 Swanst. 482; Marquand v. N. Y. Man. Co., 17 Johns. 525; Gow
on Partn. 304-306.
(b) Inst. 3. 26. 8; Dig. 17. 2. 20; ib. 50. 17. 47; Pothier, Traité de Société, n. 67,
91; Marquand v. N. Y. Man. Co., 17 Johns. 525; Ex parte Barrow, 2 Rose, 255;
Murray v. Bogert, 14 Johns. 318; Mumford v. McKay, 8 Wend. 442; Kingman v.
Spurr, 7 Pick. 235; Crawshay v. Maule, 1 Swanst. 509; Rodriguez v. Heffernan, 5
Johns. Ch. 417; Ketcham v. Clark, 6 Johns. 144; Story on Partn. [§§ 307, 308.]
Supra, 52, n.
(c) Harvey v. Crickett, 5 M. & S. 336; Barker v. Goodair, 11 Ves. 78; Dutton v.
Morrison, 17 Ves. 193. The doctrine in equity, apart from any statutes of bankruptcy,
1 Horton's Appeal, 13 Penn. St. 67.
But this must be taken with some cau
tion See Taft v. Buffum, 14 Pick. 322;
Simmons v. Curtis, 41 Me. 373, 377;
Renton v. Chaplain, 1 Stockt. 62, 66;
State v. Quick, 10 Iowa, 451; Buford v.
Neely, 2 Dev. Eq. 481; Bank of N. C. v.
Fowle, 4 Jones, Eq. 8; ante, 54.
As to involuntary transfer by the sale
on execution of the interest of a partner,
the text is confirmed by Habershon v.
Blurton, 1 De G. & Sm. 121; Aspinwall
v. London & N. W. R. Co., 11 Hare, 325;
Renton v. Chaplain, 1 Stockt. 62. See
Perens v. Johnson, 3 Sm. & G. 419. Mere
insolvency, without any stoppage of pay-
ment, assignment, or legal proceedings,
does not operate per se as a dissolution.
Arnold v. Brown, 24 Pick. 89, 94; post,
65, n. 2; Siegel v. Chidsey, 28 Penn. St.
279.
2 But see post, 64, n. 1.
[ 66 1
LECT. XLIII.]
* 60
OF PERSONAL PROPERTY.
and sold on execution, that fact will likewise terminate the part-
nership, because all his share of the joint estate is transferred, by
act of law, to the vendee of the sheriff, who becomes a tenant in
common with the solvent partners. I have not met with any
adjudication upon the point in the English law, though it is fre-
quently assumed ; (d) but it follows, as a necessary consequence,
from the sale of his interest, and it is equivalent, in that respect,
to a voluntary assignment. (e) It was also a rule of the civil law,
that the partnership was dissolved by the insolvency of one of the
members, and an assignment of his property to his creditors,
* or by a compulsory sale of it by judicial process on behalf *60
of his creditors. (a)
(5) By Judicial Decree. We have seen that the partnership
may be dissolved by the decree of the Court of Chancery, in the
case of insanity. It may also be dissolved at the instance of a
member, and against the consent of the rest, when the business
for which it was created is found to be impracticable, and the
property invested liable to be wasted and lost. (b) It may be
dissolved when the whole scheme of the association is found to
is, that upon insolvency of a firm, the effects are considered a trust fund for the pay-
ment of partnership debts, ratably, and either party may apply to have the funds so
appropriated. A bill filed for an account and dissolution, and the appointment of
a receiver, by a partner, is in equity equivalent to an actual assignment, and the
appointment of a receiver arrests the power to give preferences, which remains until
then. Egberts v. Wood, 3 Paige, 521; Waring v. Robinson, 1 Hoff. Ch. 524.
(d) So stated, arguendo, in Sayer v. Bennet, 1 Montagu on Partn. note 16; Gow on
Partn. 310.
(e) Mr. Justice Story (on Partnership, [§§ 311, 312]) considers it to follow, of course,
that by the sale the partnership is dissolved to the extent of the right and interest levied on
and sold. The sale subrogates the purchaser to the rights of the debtor partner, and
he becomes a tenant in common, and not a partner. [See n. 1.]
(a) Dict. du Digest, par Thevenot, Dessaules, art. Société, n. 56, 70. A dis-
charge of one partner under a bankrupt commission is no discharge of the other; and
the creditor can sue the other partner for the balance of his debt, notwithstanding he
proves his debt under the bankrupt commission. 2 M. & S. 25, 444; Mansfield, C. J.,
in 4 Taunt. 328. Even a release to one partner will not deprive the creditor of his
remedy against the other, if attended with a proviso that it should not affect his rem-
edy against the other. Solly v. Forbes, cited by Bayley, J., in Twopenny v. Young,
3 B. & C. 208. Though an absolute technical release of one joint debtor releases all,
yet a mere covenant, not to sue one, does not so operate. 7 Johns. 207; 4 Greenl.
421; 6 Taunt. 289; 9 Cowen, 37. A creditor may, therefore, unite in a petition for
a discharge of one joint partner, under the insolvent acts in this country, without
destroying his right of action against a solvent partner. A judgment against one
partner, or a substitution of an obligation of a higher nature against a partner, extin-
guishes the partnership debt of an inferior degree. Moale v. Hollins, 11 Gill & J. 11.
(b) Baring v. Dix, 1 Cox, 213.
[67]
61
[PART V.
OF PERSONAL PROPERTY.
be visionary, or founded upon erroneous principles. (c) So, if
the conduct of a partner, as by habitual drunkenness or other
vices, be such as renders it impracticable to carry on the busi-
ness, or there be a gross abuse of good faith between the parties,
the Court of Chancery, on the complaint of a partner, may, in its
discretion, appoint a receiver, and dissolve the association, not-
withstanding the other members object to it. (d) But the court
will require a strong case to be made out, before it will dissolve
a partnership, and decree a sale of the whole concern.
It may
restrain a single partner from doing improper acts in future, or
enforce the due observance of negative duties and obligations; (e)
but the parties, as in another kind of partnership, enter into it
for better and worse; and the court has no jurisdiction to make
a separation between them for trifling causes, or for fugitive or
temporary grievances, involving no permanent mischiefs, or be-
cause one of them is less good tempered or accommodating than
the other. The conduct must amount to an exclusion of one part-
ner from his proper agency in the house, or be such as ren-
* 61 ders it impossible to carry on the business upon the * terms
stipulated. (a)¹ A breach of covenants in articles which is
(c) Buckley v. Cater, and Pearce v. Piper, referred to for that purpose by Lord
Eldon, in 3 Ves. & B. 181. See, also, to the same point, Reeve v. Parkins, 2 Jac. &
W. 390. In these cases of a bill in chancery, for the dissolution of a partnership, all
the members, however numerous, must be parties to the bill, for they all have an
interest in the suit. Long v. Yonge, 2 Sim. 369.
(d) Gow on Partn. 114.
(e) Collyer on Partn. 233-240; Kemble v. Kean, 6 Sim. 333; Story on Partn.
[§§ 224, 225.]
(a) Waters v. Taylor, 2 Ves. & B. 299; Goodman v. Whitcomb, 1 Jac. & W. 589,
592; Collyer on Partn. 236; Story on Partn. [§§ 225, 226, 229;] Gow on Partn. 111,
112, 114, 116.
1 Dissolution. - Injunction. Receiver.
The text is confirmed by Anderson v.
Anderson, 25 Beav. 190; Hall v. Hall, 3
Macn. & G. 79, 86. See, generally, Hynes
v. Stewart, 10 B. Mon. 429; Fogg v.
Johnston, 27 Ala. 432; Essell v. Hay-
ward, 30 Beav. 1.58.
A partnership for a certain term may
be dissolved against the will of one of the
members if mutual confidence is at an
end, or if mutual illfeeling makes it im-
possible to carry on the business benefi-
cially. Smith v. Jeyes, 4 Beav. 503;
Harrison v. Tennant, 21 Beav. 482; Wat-
ney v. Wells, 30 Beav. 56; Leary v.
Shout, 33 Beav. 582; Baxter v. West,
1 Dr. & Sm. 173; Blake v. Dorgan, 1
Greene (Iowa), 537; Slemmer's Appeal,
58 Penn. St. 168; Sieghortner v. Weissen
born, 5 C. E. Green (20 N. J. Ch.) 172
See Meaher v. Cox, 37 Ala. 201.
In some cases where a dissolution is
not sought, an injunction may be granted,
for instance, to restrain other members
from preventing one partner's taking part
in the business of the firm, or to restrain
[68]
LECT. XLIII.]
* 62
OF PERSONAL PROPERTY.
important in its consequences, or when there has been a studied
and continued inattention to a covenant, and to the application
of the associates to observe it, will be sufficient to authorize the
court to interfere by injunction to restrain the breach of the
covenant, or, under circumstances, to dissolve the partnership. (b)
The French law also allowed of a dissolution within the stipu-
lated period, if one of the parties was of such bad temper that
the other could not reasonably live with him, or if his conduct
was so irregular as to cause great injury to the society. (c) A
mere temptation to abuse partnership property is not sufficient
to induce the court to interfere by injunction; but when a part-
ner acts with gross impropriety or folly, and there is a strong
probability that the safety of the firm, and the rights of credi-
tors, depend upon the interference of chancery, it forms a proper
case for the protection of that jurisdiction to be thrown over the
concern. (d)
In some instances, chancery will restrain a partner from an
unreasonable dissolution of the connection, and on the same prin-
ciple that it will interfere to stay waste and prevent an irrepar-
able mischief; and such a power was assumed by Lord Apsley,
in 1771, without any question being made as to the fitness of the
exercise of it. (e) In the civil law, it was held by the civilians
to be a clear point, that an action might be instituted by, or on
behalf of the partnership, if a partner, in a case in which no pro-
vision was made by the articles, should undertake to dis-
solve the partnership at an unseasonable moment; * and *62
they went on the ground that the good of the association
(b) Marshall v. Colman, 2 Jac. & W. 266.
(c) Inst. au Droit François, par Argou, ii. 249.
(d) Glassington v. Thwaites, 1 Sim. & Stu. 124; Miles v. Thomas, 9 Sim. 606;
Tilghman, C. J., 11 Serg. & R. 48; Story on Partn. [§ 227 ;] Lord Eldon, in Hood v.
Aston, 1 Russ. 412, 415. Mr. Justice Story, [§§ 285, 292,] and Collyer on Partn. 195,
196, have summed up the whole doctrine on the causes proper for dissolution of part-
nership by a decree in equity.
(e) Chavany v. Van Sommer, cited in 3 Wood. Lec. 416, and 1 Swanst. 512, note.
one who has misconducted himself from
interfering further. Anon., 2 K. & J.
441; Hall v. Hall, 3 Macn. & G. 79; Eng-
land v. Curling, 8 Beav. 129. But ordina-
rily a receiver will not be appointed unless
with a view to dissolving the partnership.
Ante, 57, post, 63; Hall v. Hall, sup.;
Roberts v. Eberhardt, Kay, 148; Henn v.
Walsh, 2 Edw. Ch. 129; Walker v. House,
4 Md. Ch. 39; Speights v. Peters, 9 Gill,
472; Madgwick v. Wimble, 6 Beav. 495;
Sloan v. Moore, 37 Penn. St. 217. See
Sheppard v. Oxenford, 1 Kay & J. 491
Renton v. Chaplain, 1 Stockt. 62, 70.
[ 69 ]
* 63
[PART V.
OF PERSONAL PROPERTY.
;
ought to control the convenience of any individual member. (a)
But such a power, acting upon the strict legal right of a party,
is extremely difficult to define, and I should think rather hazard-
ous and embarrassing in its exercise.
(6) By the Inability of the Parties to act. - Pothier says, that
if a partnership had been contracted between two persons,
founded on the contribution of capital by the one and of per-
sonal labor and skill by the other, and the latter should become
disabled by the palsy to afford either the labor or skill, the part-
nership would be dissolved, because the object of it could not be
fulfilled. (b) This conclusion would be extremely reasonable,
for the case would be analogous in principle to that of insanity,
and equally proper for equitable relief. The same result would
arise if one of the partners had lost his capacity to act sui juris,
by conviction and attainder of treason, or by absconding for debt,
or crime, or felony, or any state-prison offence. (c)
If the partners were subjects of different governments, a war
between the two governments would at once interrupt and render
unlawful all trading and commercial intercourse, and, by neces-
sary consequence, work a dissolution of all commercial partner-
ships existing between the subjects of the two nations residing
within their respective dominions. A state of war creates disa-
bilities, imposes restraints, and exacts duties, altogether incon-
sistent with the continuance of every such relation. This subject
had been largely discussed, and the doctrine explicitly settled
and declared by the courts of justice in New York. (d) 1
(7) Consequences of the Dissolution. When a partnership is
actually ended by death, notice, or other effectual mode, no
*63 person can make use of the joint * property in the way of
trade, or inconsistently with the purpose of settling the
affairs of the partnership, and winding up the concern. The
power of one partner to bind the firm ceases immediately on its
(a) Dig. 17. 2. 65. 5; Pothier, Traité du Con. de Soc. n. 150, 151, 154. By the
Roman law, says Mr. Justice Story (Comm. on Partn. [§ 276]), a partner might, by his
own act, primarily insist upon a dissolution, which, however, would not be valid
unless for just cause, and affirmed to be so by a court of justice.
(b) Traité du Con. de Soc. n. 142, 152; Bell's Comm. ii. 634, 635.
(c) Story on Partn. [§ 304;] Whitman v. Leonard, 3 Pick. 177.
(d) Griswold v. Waddington, 15 Johns. 57; s. c. 16 Johns. 438.
•
1 Ante, i. 67, n. 1; Woods v. Wilder, 43 N. Y. 164 The William Bagaley, 5
Wall. 377, 407.
[70]
LECT. XLIII.]
* 63
OF PERSONAL PROPERTY.
dissolution, provided the dissolution be occasioned by death, or
bankruptcy, or by operation of law, though in cases of a volun-
tary dissolution, due notice is requisite to prevent imposition on
third persons who might continue to deal with the firm. (a) The
partners, from that time, become distinct persons, and tenants in
common of the joint stock. One partner cannot indorse bills and
notes previously given to the firm, nor renew a partnership note,
nor accept a bill previously drawn on it, so as to bind it. He
cannot impose new obligations upon the firm, or vary the form or
character of those already existing. (b) If the paper was even
indorsed before the dissolution, and not put into circulation until
afterwards, all the partners must unite in putting it into circula-
tion, in order to bind them. (c) But until the purpose of finish-
ing the prior concerns be accomplished, the partnership, as we
have already seen, may be said, in a qualified sense, to continue ;
and if the object be in danger of being defeated, by the unjusti-
fiable acts or conduct of any of the partners, a court of equity
will interfere, and appoint a manager or receiver to conduct and
settle the business. (d) A dissolution is, in some respects, pro-
(a) Story on Partn. [§ 336.] [Ante, 57, n. 1.]
(b) Torrey v. Baxter, 13 Vt. 452; Woodworth v. Downer, ib. 522. But a retired
partner may give authority even by parol to a continuing partner, who is winding up
the concern, to indorse bills in the partnership name, after a dissolution of the part-
nership. Smith v. Winter, 4 M. & W. 454. But after the dissolution, one partner
cannot give a cognovit for the firm. Rathbone v. Drakeford, 6 Bing. 375.
(c) Kilgour v. Finlyson, 1 H. Bl. 155; Abel v. Sutton, 3 Esp. 108; Lansing v.
Gaine, 2 Johns. 300; Sanford v. Mickles, 4 id. 224; Foltz v. Pourie, 2 Desaus. Ch.
40; Fisher v. Tucker, 1 M'Cord Ch. 173; Poignand v. Livermore, 17 Martin, 324;
Tombeckbee Bank v. Dumell, 5 Mason, 56; Woodford v. Dorwin, 3 Vt. 82; National
Bank v. Norton, 1 Hill (N. Y.), 572; Dickerson v. Wheeler, 1 Humph. 51; Story on
Partn. [§ 322.]
(d) Wilson v. Greenwood, 1 Swanst. 480; Crawshay v. Maule, ib 506, 528; Gowan
v. Jeffries, 2 Ashmead, 296; Peacock v. Peacock, 16 Ves. 49, 57; Ex parte Ruffin, 6
Ves. 119, 126; Murray v. Mumford, 6 Cowen, 441; Crawshay v. Collins, 15 Ves. 226;
Story on Partn. 463-470, 475, 476; Ex parte Williams, 11 Ves. 5; Gow on Partn.
114, 231, 232, 356; Collyer on Partn. 226, 240–244. After the dissolution, each partne
becomes a trustee for the others, as to the partnership funds in his hands, in order
¹ See, generally, Fellows v. Wyman,
33 N. H. 351; Bower v. Douglass, 25 Ga.
714; Cunningham v. Bragg, 37 Ala. 436;
Myatts v. Bell, 41 Ala. 222; White v.
Tudor, 24 Tex. 639; Lumberman's Bank
v. Pratt, 51 Me. 563; Lusk v. Smith, 8
Barb. 570; Hurst v. Hill, 8 Md. 399;
Parker v. Cousins, 2 Gratt. 372; Palmer
v. Dodge, 4 Ohio St. 21; Fowler v. Rich.
ardson, 3 Sneed, 508; Van Valkenburg v.
Bradley, 14 Iowa, 108; Lange v. Ken-
nedy, 20 Wis. 279; Long v. Story, 10 Mo.
636. But see Robinson v. Tayloı, 4 (Barr)
Penn. St. 242.
[ 71]
* 64
[PART V.
OF PERSONAL PROPERTY.
spective only, and either of the former solvent and competent
partners can collect and receive payment of debts due to the
firm, (e) and adjust unliquidated accounts, and give acquittances
and discharges. (ƒ) On the dissolution by death, the surviving
partner settles the affairs of the concern, and the Court of Chan-
cery will not arrest the business from him, and appoint a receiver,
unless confidence be destroyed by his mismanagement or improper
conduct. (g) The surviving partner (or partners, as the case
*
may be) is alone suable at law, and he is entitled to the pos-
*64 session and disposition of the assets, to enable him to dis-
charge the debts and settle the concern. (a)¹ But relief may
to effect a fair settlement and just distribution of the effects. But if any one pays
over the funds in his possession to the acting partner, or general receiver of the trust,
he is not liable for the insolvency of the latter, if the payment was not made in bad
faith. Allison v. Davidson, 2 Dev. Eq. 79, 84.
(e) Platt, J., 19 Johns. 143; King v. Smith, 4 Carr. & P. 108. By the New York
statute of April 18, 1838, c. 257, entitled "An act for the relief of partners and joint
debtors," on the dissolution of any copartnership firm, by consent or otherwise, any
individual thereof may make a compromise with all or any of the creditors, and obtain
a discharge, as far as respects himself only; but such composition or compromise shall
not impair the right of the creditor making it to his remedy against the other members
of the firm, nor impair the right of the other copartners to call on such partner for his
ratable proportion of such partnership debt. This statute provision extends equally
to joint debtors, any one of whom may compound for his joint indebtedness, under
the same limitations. The proper remedy for one partner against the other, is by a
bill in chancery, or an action of account at law.
(ƒ) Fox v. Hanbury, Cowp. 445; Smith v. Oriell, 1 East, 363; Harvey v. Crickett,
5 M. & S. 336-344; 2 Bell's Comm. 643; Story on Partn. [§§ 328, 341.]
(g) Philips v. Atkinson, 2 Bro. C. C. 272; Evans v. Evans, 9 Paige, 178.
(a) Barney v. Smith, 4 Harr. & J. 485; Murray v. Mumford, 6 Cowen, 441; 2
Bell's Comm. 645. In Louisiana, the surviving partner doos not possess the right,
until he is authorized by the Court of Probates, to sue alone for, or receive partner-
ship debts. Flower v. O'Conner, 7 La. 194; Connelly v. Cheevers, 16 id. 30; 19 id.
402, 404, s. P. This is an anomaly in the English law of partnership; but it follows
the doctrine of the French law, which will not allow the surviving partners, after the
dissolution of the partnership, to administer the concerns of the partnership, nor even
to receive payment of debts due to the same. They must apply to the courts of jus-
tice for power. Pothier, de Société, n. 157, 158, 160; Civil Code of France, art. 1865,
1872; Story on Partn. [§ 333;] Code of Louisiana, art. 2852, 2853.
1 As to the powers of a partner after dis-
solution, see, generally, Butchart v. Dresser,
10 Hare, 453; 4 De G., Macn. & G. 542;
Robbins v. Fuller, 24 N. Y. 570; Gannett
v. Cunningham, 34 Me. 56; Milliken v.
Loring, 37 Me. 408; Ide v. Ingraham, 5
Gray, 106; Johnson v. Totten, 3 Cal. 343;
Bass v. Taylor, 34 Miss. 342; Renton v.
Chaplain, 1 Stockt. 62.
It has been doubted whether the sur-
viving members after the death of one
partner could sell and give a good legal
title to his share, even when they sell in
order to pay the debts of the deceased
[ 72 ]
LECT. XLIII.]
* 64
OF PERSONAL PROPERTY.
be had in equity against the representatives of the deceased
partner having assets, if the surviving partner be insolvent; (b)
and it is now held, that a partnership contract, upon the death
of a partner, is in equity to be considered joint and several, and
to be treated as the several debt of each partner. (c) Each party
may insist on a sale of the joint stock; and when a court of
equity winds up the concerns of a partnership, it is done by a
sale of the property, real and personal, and a conversion of it
into money. (d) If, however, before a sale or a settlement of the
(b) Simpson v. Vaughan, cited in 2 Ves. 101; Jenkins v. De Groot, 1 Caines's Cas.
122; Van Reimsdyk v. Kane, 1 Gallison, 371, 630; Hamersley v. Lambert, 2 Johns.
Ch. 508; Gow on Partn. 358, 359.
(c) Vulliamy v. Noble, 3 Meriv. 593; Wilder v. Keeler, 3 Paige, 167. A joint
creditor may file a bill against the representatives of a deceased partner, though the
survivor be not insolvent; and if the survivor be insolvent, he may do it without
regard to the state of accounts as between such deceased partner and the surviving
partners. Devaynes v. Noble, 2 Russ. & My. 495. He is not compelled to sue the
survivor in the first instance separately, as at law, but he must be joined in a suit in
equity against the estate of the deceased partner, because interested in taking the
account. Wilkinson v. Henderson, 1 My. & Keen, 582; Devaynes v. Noble, 1 Meriv.
529; Sleech's Case, ib. 563; Collyer on Partn. 343-346; Sumner v. Powell, 2 Meriv.
37; Story on Partn. [§ 362.] But the doctrine in these latter cases of Wilkinson v.
Henderson, and Devaynes v. Noble, allowing the partnership creditor to seek satis-
faction out of the estate of the deceased partner, without regard to the partnership
fund, and without first resorting to the surviving partner, and exhausting the remedies
against him, or showing him insolvent, though strongly sanctioned by Judge Story,
is pointedly condemned in Lawrence v. Trustees, &c., 2 Denio, 577. [Ante, 58, n. 1;
Voorhis v. Childs, 17 N. Y. 354; Bennett v. Woolfolk, 15 Ga. 213.]
(d) Gow on Partn. 234-237; Sir John Leach, in Fereday v. Wightwick, Tamlyn,
261; Collyer on Partn. 146, 204-214; Crawshay v. Collins, 15 Ves. 218, 227; Craw-
shay v. Maule, 1 Swanst. 495, 506; Cook v. Collinridge, Jacob, 607. Mr. Justice
Story, in his Commentaries, [§ 355,] very justly prefers the English to the Roman or
French law on this point, where the division and distribution of the partnership assets
and themselves. Buckley v. Barber, 6
Exch. 164, 182. But Mr. Lindley thinks
that notwithstanding the bankruptcy of
one partner, the solvent partners can deal
with the partnership property as if no
bankruptcy had intervened, and can con-
fer a title to the whole of the property
which they assume to dispose of in the
ordinary way of business, and to persons
dealing with them bona fide. Lind. on P.
2d ed. 1122; Fraser v. Kershaw, 2 Kay &
J. 496, 501; Morgan v. Marquis, 9 Exch.
145, 148; Ex parte Robinson, 3 Deac. &
Ch. 376, 392; Butchart v. Dresser, 4 De
G., M. & G. 542, 544; vide ante, 59; Rob-
bins v. Fuller, 24 N. Y. 570; Bennett v.
Buchan, 53 Barb. 578, 583; Milliken v.
Loring, 37 Me. 408.
An acceptance in the firm name by a
solvent partner in respect of a partnership
liability, will be valid in the hands of a
bona fide holder, notwithstanding a pre-
vious act of bankruptcy by the other
partner, on which a commission subse-
quently issues. Ex parte Robinson, 3
Deac. & Ch. 376; ante, 44, n. 1; Merrit
v. Pollys, 16 B. Mon. 355. Compare ad-
ditional cases cited post, 66, n. (a)
[73]
• 64
[PART V.
OF PERSONAL PROPERTY.
joint concern, the partner in possession of the capital continues
the trade with the joint property, he will do it at his own risk,
and will be bound to account with the other partner, or the
representatives of a deceased partner, for the profits of the trade,
subject to just allowances. (e) The good-will of a trade is not
partnership stock. It has been decided to be the right of the
survivor, and which the law gives him, to carry on the trade, and
that the representatives of a deceased partner cannot compel a
division of it. (f) But it was afterwards doubted whether the
good-will did survive, and could be separated from the lease of
the establishment, and especially if the survivor continued the
trade with the joint funds. (g)²
among the partners were by valuation and lot, and in specie. Dig. 10. 2. 4; Pothier,
de Société, n. 169 to 173. In Scotland, the English and not the civil law prevails. 2
Bell's Comm. 632, 633.
(e) Brown v. Litton, 1 P. Wms. 140; Hammond v. Douglas, 5 Ves. 539; Crawshay
v. Collins, 15 Ves. 218; Featherstonhaugh v. Fenwick, 17 id. 298, 309, 310; Sigourney
v. Munn, 7 Conn. 11. The surviving partner or partners who collect the debts, adjust
accounts, and wind up the concern, have no compensation for trouble or services,
unless the same be stipulated. The same rule applies as if the original partnership
had continued. See supra, 37; Story on Partn. [§ 331.] But the new transactions
will not bind the firm, if they be not within the scope and business of the original
partnership, or the third person had notice of the dissolution, or in the case of a dor-
mant partner who had already retired. Story on Partn. [§ 334.]
(f) Hammond v. Douglas, 5 Ves. 539; Farr v. Pearce, 3 Mad. 74; Lewis v. Lang-
don, 7 Sim. 421. But see Crawshay v. Collins, 15 Ves. 227, a doubt expressed as to
the survivorship of a good-will, and that doubt overruled in 7 Sim. 421.
(g) Lord Eldon, in Crawshay v. Collins, 15 Ves. 224, 227. The good-will of a
business has been recognized in equity as a valuable interest. Kennedy v. Lee, 3
2 Good-will. The good-will does not
survive, but the estate of a deceased part-
ner participates in it. Smith v. Everett,
27 Beav. 446, and cases cited below; Hol-
den v. M'Makin, 1 Pars. Eq. C. 270, 281.
In some cases it has been sold as part of
the partnership assets. Williams v. Wil-
son, 4 Sandf. Ch. 379; Johnson v. Helle-
ley, Cook v. Collingridge, Hall v. Bar-
rows, infra; Mellersh v. Keen, 28 Beav.
453; Turner v. Major, 3 Giff. 442. So has
the right to use the name of a periodical,
when the partnership which carried it on
was dissolved. Bradbury v. Dickens, 27
Beav. 53. See Holden v. M'Makin, 1
Pars. Eq. C. 270; Dayton v. Wilkes,
17 How. Pr. 510. In one or two cases
the former owners have been restrained
from pursuing the same business in such
a way as to render the purchase value-
less. Williams v. Wilson, 4 Sandf. Ch.
379. See Turner v. Major, 3 Giff. 442.
But it is settled that the sale of the
good-will of a business, without more, does
not preclude the vendor or surviving part-
ner from carrying on a precisely similar
business next door, so long as he does not
hold himself out as continuing the iden-
tical business sold. Churton v. Douglas,
H. R. V. Johns. 174; Hall v. Barrows, 33
L. J. N. s. Ch. 204; 10 Jur. N. s. 55; Smith
v. Everett, 27 Beav. 446; Cook v. Colling-
ridge, ib. 456; Johnson v. Helleley, 34
Beav. 63; 2 De G., J. & S. 446; Davies ».
[74]
LECT. XLIII.]
* 65
OF PERSONAL PROPERTY.
*
65
The joint creditors have the primary claim upon the joint fund,
in the distribution of the assets of bankrupt or insolvent partners,
and the partnership debts are to be settled before any division of
the funds takes place. So far as the partnership property has
been acquired by means of partnership debts, those debts have,
in equity, a priority of claim to be discharged; and the separate
creditors are only entitled in equity to seek payment from the
surplus of the joint fund after satisfaction of the joint debts.
*The equity of the rule, on the other hand, equally requires
that the joint creditors should only look to the surplus of
the separate estates of the partners, after payment of the separate
debts. It was a principle of the Roman law, and it has been
acknowledged in the equity jurisprudence of Spain, England,
and the United States, that partnership debts must be paid out
of the partnership estate, and private and separate debts out of
the private and separate estate of the individual partner. If the
partnership creditors cannot obtain payment out of the partner-
ship estate, they cannot in equity resort to the private and sep-
arate estate, until private and separate creditors are satisfied;
nor have the creditors of the individual partners any claim upon
the partnership property, until all the partnership creditors are
satisfied. (a) The basis of the general rule is, that the funds
Meriv. 452, 455. By the conveyance of a shop, the good-will passes, though not
specifically mentioned. Chissum v. Dewes, 5 Russ. 29. A defendant may be enjoined
from assuming the plaintiff's name in a business concern, for the fraudulent purpose
of imposing upon the public, and supplanting the plaintiff in the good will of that
concern, provided the name be used in such a manner as to be calculated to deceive
or mislead the public. Hogg v. Kirby, 8 Ves. 215; Knott v. Morgan, 2 Keen, 213;
Bell v. Locke, 8 Paige, 75. The good-will of a trade is, said Lord Eldon, the proba-
bility that the old customers will resort to the old place. But in Dougherty v. Van
Nostrand, 1 Hoff. Ch. 68, it was declared that this good-will was partnership prop-
erty, and did not survive; and if not disposed of by consent, the lease and good-will
would be sold like other partnership effects. See, on this point, Story on Partn.
[§ 99.]
(a) Wilder v. Keeler, 3 Paige, 167; Morgan v. His Creditors, 20 Martin (La.), 599;
M'Culloh v. Dashiell, 1 Harr. & G. 96; Payne v. Matthews, 6 Paige, 19; Hall v. Hall,
Hodgson, 25 Beav. 177; White v. Jones, 1
Abb. Pr. 328. And there are instances in
which a partner, after the expiration or
dissolution of the partnership, has been
allowed to carry on business in the firm
name on his own account, under somewhat
special circumstances. Musselman's Ap-
peal, 62 Penn. St. 81 ; Banks v. Gibson, 34
Beav. 566. The general rule is the other
way. Churton v. Douglas, and other
cases, sup.; Bininger v. Clark, 60 Barb.
113. The value of the good-will is usually
estimated at so many years' purchase
upon the amount of the profits of the
business. Austen v. Boys, 2 De G. & J.
626, 636; Mellersh v. Keen, 28 Beav. 453.
[75]
* 65
[PART V.
OF PERSONAL PROPERTY.
are to be liable on which the credit was given.¹ In contracts
with the partnership, the credit is supposed to be given to the
2 M'Cord Ch. 302; Bowden v. Schatzell, 1 Bailey Eq. 360; Cammack v. Johnson, 1
Green Ch. (N. J.) 163.
1 Partnership and Separate Funds.
The text is confirmed by Murrill v.
Neill, 8 How. 414; Weyer v. Thorn-
burgh, 15 Ind. 124; Walker v. Eyth,
25 Penn. St. 216; Crockett v. Crain, 33
N. H. 542; Rodgers v. Meranda, 7 Ohio
St. 179, 187; Bridge v. McCullough, 27
Ala. 661; Smith v. Mallory, 24 Ala. 628,
(explaining Emanuel v. Bird, 19 Ala. 596;)
Moline Water P. Co. v. Webster, 26 Ill.
233; Pahlman v. Graves, ib. 405; Toombs
v. Hill, 28 Ga. 371; Ridgway v. Clare, 19
Beav. 111; Lodge v. Prichard, 1 De G.,
J. & S. 610; s. c. 4 Giff. 294; U. S. Bank-
rupt Act of March 2, 1867, § 36. But see
Camp v. Grant, 21 Conn. 41; Bardwell v.
Perry, 19 Vt. 292; Shedd v. Wilson, 27 Vt.
478, 481. Equity courts have refused to
supersede the legal lien of a priorjudgment
recovered by a partnership creditor, upon
the separate estate of one of the firm in
some cases. Meech v. Allen, 17 N. Y. 300;
Straus v. Kerngood, 21 Gratt. 584. See
Miles v. Pennock, 50 N. H. 564.
The exclusion of the joint creditors
from the separate fund in case of the
death of one partner has been thought to
rest on the ground that the law cast all
the firm obligations on the survivor, and
the partnership creditors had no claim
against the estate of the deceased mem-
ber except in equity, wherefore they were
postponed to the separate creditors who
had a right at law. Arnold v. Hamer,
Freem. (Miss.) Ch. 509, 516; Silk v.
Primę, 2 Lead. Cas. in Eq., American
note, 3d ed. 313; Story on P., § 363,
Gray's note.
As stated below in the text, 65, part-
nership creditors have no equity to pre-
vent partners from transferring their
property to each other, or changing its
character from joint to separate prop-
erty, provided it is done in good faith.
See, generally, ante, 39, n. 1; Richards v.
Manson, 101 Mass. 482, 487; Allen v.
Centre Valley Co., 21 Conn. 130; Siegel
v. Chidsey, 28 Penn. St. 279; Richardson
v. Tobey, 3 Allen, 81; Robb v. Mudge,
14 Gray, 534; Dimon v. Hazard, 32 N. Y.
65; Potts v. Blackwell, 4 Jones Eq. 58;
Marks v. Hill, 15 Gratt. 400; Jones v.
Lusk, 2 Metc. (Ky.) 356; Mandel v. Peay,
20 Ark. 325; Waterman v. Hunt, 2 R. I
298; Wilson v. Bowden, 8 Rich. 9. Ac-
cordingly, when, by an agreement made
bona fide and for value, the assets of the
partnership are vested in one of the part-
ners in consideration of his promising to
pay the firm debts, the partnership credi-
tors will not have any prior claim or lien
upon such assets, either apart from or by
reason of the promise. Rankin v. Jones,
2 Jones Eq. 169; Hapgood v. Cornwell,
48 Ill. 64; Robb v. Mudge, 14 Gray, 534;
Baker's Appeal, 21 Penn. St. 76. But
see Tenney v. Johnson, 43 N. H. 144;
Ferson v. Monroe, 1 Fost. (21 N. H.) 462.
In some cases it has been held to make
no difference that the firm and both part-
ners were insolvent at the time of the
transfer, and it is said that joint estate is
not, so far as the rights of creditors are
concerned, that which was such at the
time of dissolution, but that in which the
partners are jointly interested for the pur-
poses of the partnership and the settle-
ment of its concerns at the time of the
institution of proceedings in insolvency.
Howe v. Lawrence, 9 Cush. 553, 557.
See Robb v. Mudge, 14 Gray, 534, 537;
Dimon v. Hazard, 32 N. Y. 65, 79; Siegel
v. Chidsey, 28 Penn. St. 279, 287; Jones
v. Lusk, 2 Metc. (Ky.) 356, 361. It must
be remembered that mere insolvency does
not always work a dissolution. Ante, 59,
n. 1.
[76]
LECT. XLIII.]
* 65
OF PERSONAL PROPERTY.
firm, but those who deal with an individual member rely on his
sufficiency. Partnership effects cannot be taken by attachment,
or sold on execution, to satisfy a creditor of one of the partners
only, except it be to the extent of the interest of such separate
partner in the effects, after settlement of all accounts. The sale
is made subject to the partnership debts, and is in effect only a
sale of the undefined surplus interest of the partner defendant,
after the partnership debts are paid. (b) In pursuance of this
(b) Heydon v. Heydon, 1 Salk. 392; Fox v. Hanbury, Cowp. 445; Wilson v. Conine,
2 Johns. 280; Matter of Smith, 16 Johns. 102; Moody v. Payne, 2 Johns. Ch. 548;
Jarvis v. Hyer, 4 Dev. (N. C.) 367; Tappan v. Blaisdell, 5 N. H. 190. For the general
doctrine laid down in the text, see, at large, Emerig. Traité des Con. à la Grosse,
c. 12, sec. 6; Ex parte Cook, 2 P. Wms. 499; West v. Skip. 1 Ves. Sen. 456; Ex parte
Elton, 3 Ves. 238; Taylor v. Fields, 4 Ves. 396; Ex parte Abell, 4 Ves. 837; Ex parte
Kensington, 14 Ves. 447; Ex parte Taitt, 16 Ves. 193; Ch. De Saussure, in Woddrop
v. Ward, 3 Des. Ch. 203, and in 2 M'Cord, [Ch.] 302; M'Culloh v. Dashiell, 1 Harr. & G.
96; Barber v. Hartford Bank, 9 Conn. 407; Witter v. Richards, 10 id. 37; Pierce v.
Jackson, 6 Mass. 242; Allen v. Wells, 22 Pick. 450; Wilder v. Keeler, 3 Paige, 167;
Lyndon v. Gorham, 1 Gallison, 367; Taylor v. Fields, in Exch., 4 Ves. 396; 15 id.
559, s. c.; Story on Partn. pp. 516-521. This rule is said to be a rule of conven-
ience merely, and that it is a rule in bankruptcy, and not a rule of general equity.
The rule in bankruptcy, in the time of Lord Hardwicke (Ex parte Baudier, 1 Atk.
98; Ex parte Voguel, 1 Atk. 132), was, to permit joint creditors to prove their debts,
under a separate commission against one partner, or under separate commissions
against all the partners, but only in reference to the certificate; and the joint creditors
were considered to have an equitable right to any surplus of the separate estates,
after payment of the separate creditors. But the joint property was distributed under a
joint commission. Lord Thurlow broke in upon the rule, and allowed joint creditors
to prove and take dividends under a separate commission, and held, that a commission
of bankruptcy was an execution for all the creditors, and that no distinction ought to
be made between joint or separate debts, and they ought to be paid ratably out of
the bankrupt's property. (Ex parte Hayden, 1 Bro. C. C. 454; Ex parte Copland, 1 Cox,
420; Ex parte Hodgson, 2 Bro. C. C. 5.) Lord Rosslyn restored Lord Hardwicke's rule
(Ex parte Elton, 3 Ves. 242; Ex parte Abell, 4 Ves. 837), and Lord Eldon also followed
the same rule. (Ex parte Clay, 6 Ves. 813; Ex parte Kensington, 14 Ves. 447; Ex
parte Taitt, 16 Ves. 193.) If, therefore, there be a joint fund, or a solvent partner, a
joint creditor is not entitled to prove his debt under a separate commission, for the
purpose of receiving a dividend, without an order in chancery. Mr. Justice Story, in
his full discussion of the subject, concludes that the old rule, now reinstated by Lord
Rosslyn and Lord Eldon, rests on as questionable and unsatisfactory a foundation as
any rule in the whole system of our jurisprudence, while he admits it is not now to
be disturbed, as it would be difficult to substitute any other rule that would work
with perfect equality and equity. Story on Partnership, [§§ 376-382.] For my part,
I am free to confess that I feel no hostility to the rule, and think that it is upon the
whole reasonable and just. The history of the rule and its fluctuations was noted in
the case of Murray v. Murray, 5 Johns. Ch. 73–77. In Pennsylvania the rule has been
discarded, after, great consideration, as not being a general rule in equity, but one
founded on the statutes of bankruptcy; and joint and separate creditors are allowed
[ 77 ]
* 65
[PART V.
OF PERSONAL PROPERTY.
principle, it is held, that the creditor of an ostensible partner,
and who gave him credit as a single individual, is not to be post-
to come in under their insolvent laws, pari passu, for a distributive share of the estate
of an insolvent partner, whether the fund be a separate or partnership fund. Bell v.
Newman, 5 Serg. & R. 78; In the Matter of the Estate of Sperry, 1 Ashm. 347. So
in Georgia, a judgment creditor of a partner, in his individual capacity, may levy on
the partnership effects, and sell his debtor's undivided interest therein, without reference
to the claims of the creditors of the firm; Ex parte Stebbins & Mason, R. M. Charlton,
77; and in Vermont it has been held, that partnership creditors have no priority over
a creditor of one of the partners, even as to the partnership effects. Reed v. Shep-
ardson, 2 Vt. 120. In South Carolina, a copartnership creditor has a right to resort
either to the partnership property, or to the separate property of the partners. He
has two funds, and may be compelled by the separate creditors of one of the partners
to exhaust the partnership property before he proceeds against that of the individual
partner. But the private creditors of a partner have but one fund, and cannot go
against the partnership funds beyond the debtor's interest in the balance left, after
the payment of the partnership debts. Wardlaw v. Gray, Dudley Eq. 83, 113. In
Massachusetts, the general doctrine relative to the claims of copartnership and sepa-
rate creditors in matters of partnership is considered to be one in equity, and not at
law; and it was decided, in Allen v. Wells, 22 Pick. 450, that the attachable interest
of one of the copartners, by a separate creditor, is the surplus of the joint estate
remaining, after discharging all joint demands upon it; and this necessarily creates a
preference in favor of the partnership creditors in the application of the partnership
property. See, also, to this point, Marshall, C. J., in Tucker v. Oxley, 5 Cranch, 39;
M'Culloh v. Dashiell, 1 Harr. & G. 96; 1 Story Eq. Jur. 625. It is to be observed,
however, that Lord Rosslyn, in 3 Ves. 240, declared the rule, as stated in the text, to
be settled by a variety of cases, not only in bankruptcy, but upon general equity.
The rule in equity is, that the joint estate is first applicable to partnership debts, and
the separate estate to the separate debts; and the weight of authority, if not of con-
venience and equity, seems to be decidedly in its favor. Mr. Justice Rose, in Ex parte
Moult, 1 Deac. & Chit. 44, 73; s. c. 1 Montagu, 292, declared it to be a universal
maxim in the administration of assets in equity, that the separate estate should be
applied in the first instance to the separate creditors, and the joint estate to the joint
creditors. The joint creditors must go first to the joint estate, and the separate cred-
itors first to the separate estate; and if there be a surplus of the joint estate, it is
carried to the respective separate estates; or if a surplus of the separate estates, it is
carried to the joint estate. In Massachusetts, a statute in 1838, c. 163, enacted for
the relief of insolvent debtors, adopted as the rule for distributing the effects of insol-
vent debtors, that the net proceeds of the joint property should be appropriated to
pay the joint creditors, and the net proceeds of the separate estate of each partner
should be appropriated to pay his separate debts. This is precisely the English rule
in equity on the subject.
The history and fluctuations of the remedy at law of the creditor, against the
estate of an individual partner, are calculated to throw light on this vexatious sub-
ject; and the cases have been collected and ably reviewed in the note of the reporter
to the case of Smith, in 16 Johns. 102, and still more elaborately in art. 3, in the Ameri-
can Jurist for October, 1841 [xxvi. 55.] It may be observed summarily, that before
Lord Mansfield's time, the rule was, that on an execution at law against a partner
for his individual debt, the sheriff levied on all the tangible property of the partner-
ship, because it was joint and undivided property, and he sold only the undivided
[ 78 ]
LECT. XLIII.]
* 65
OF PERSONAL PROPERTY.
poned in his attachment upon the stock in trade, to another
creditor, who may subsequently attach the same stock for a debt
share or interest of the defendant; and the joint tenancy between the partners was
severed by the sale, and the vendee became tenant in common with the other part-
ners, without reference to the partnership accounts. To levy on the entire share of
one partner, it was deemed necessary to seize all the effects of the partnership, and
to restore to the other partner his share or moiety, because, by seizing the debtor's
share only, say a moiety, and selling that, the other partner would have a right, as
a joint tenant, to a moiety of that moiety. Heydon v. Heydon, 1 Salk. 392; Jacky
v. Butler, 2 Ld. Raym. 871; Pope v. Haman, Comb. 217; Hankey v. Garratt, 1 Ves.
240; Eddie v. Davidson, Doug. 650. There was a vast inconvenience and uncer-
tainty, if not injustice, in that practice, for it was impossible to know what was the
value, if any, of the debtor's interest in the partnership, until a liquidation of the
partnership accounts. Lord Mansfield undertook to correct this practice upon equity
principles, and it became the doctrine that the creditor could not take an undivided
moiety of the partnership effects for the separate debt of that partner, without hav-
ing regard to the partnership accounts. He could only take the interest of the
debtor partner in the partnership effects; and that interest was only the share
remaining due after the partnership debts were settled and the accounts adjusted.
This principle was announced in Fox v. Hanbury, Cowp. 445. And afterwards, in
Eddie v. Davidson, the K. B. undertook to carry into effect the equities between the
parties, by ordering a partnership account of the partnership effects to be taken by
reference to a master. This was afterwards repeated, as stated by counsel in Chap-
man v. Koops, 3 Bos. & P. 289. It was assuming equity powers in a court of law;
and Lord Eldon held, that a court of law was incompetent to take partnership
accounts, and that it belonged to a court of equity to take the account and ascertain
what the sheriff ought to have sold. Waters v. Taylor, 2 Ves. & B. 299, 301. In
the Matter of Wait, 1 Jac. & W. 588, it is now considered to be settled, that courts
of law cannot take partnership accounts. Parker v. Pistor, 3 Bos. & P. 288; Chap-
man v. Koops, ib. 289. The Supreme Court of Pennsylvania, in M'Carty v. Emlen,
2 Dall. 278, followed the English rule; but Mr. Justice Yeates, in that case, held to
the more modern doctrine; and in Church v. Knox, 2 Conn. 514, the modern rule
was followed, though strongly opposed by the minority of the court. The doctrine
of moieties is now exploded, and the creditors under execution or process of foreign
attachment, or assignees of a partner, or purchasers on sheriff's sales, can take only
the interest of the debtor in the partnership funds, subject to the accounts of the partner-
ship. That interest, and not the partnership effects, is sold, and that interest is
merely the share found to belong to the debtor upon an adjustment in equity of the
partnership accounts. Taylor v. Fields, 4 Ves. 396; s. c. 15 Ves. 559, note; Goss
v. Du Fresnoy, 1 Cooke's B. L. 539; Young v. Keighly, 15 Ves. 557; Lord Eldon, in
the Matter of Wait, 1 Jac. & W. 608; Pierce v. Jackson, 6 Mass. 242; Fisk v. Her-
rick, ib. 271; In the Matter of Smith, 16 Johns. 102; Winston v. Ewing, 1 Ala. 129;
Scrugham v. Carter, 12 Wend. 131; Doner v. Stauffer, 1 Penn. 198; Barber v. Hart-
ford Bank, 9 Conn. 407; Witter v. Richards, 10 id. 37. [Filley v. Phelps, 18 Conn.
294; Sutcliffe v. Dohrman, 18 Ohio, 181; Baker's Appeal, 21 Penn. St. 76; Haskins
v Everett, 4 Sneed, 531.] In Burrall v. Acker, in the N. Y. Court of Errors, 23
Wend. 606, the Chancellor, in behalf of the court, declared that the interest of a
member in partnership property might be levied upon and sold under execution at
law, and before the sale the sheriff may take a joint possession with the other mem-
bers of the firm, but whether he could take exclusive possession was left undecided.
[79]
* 65
[PART V.
OF PERSONAL PROPERTY.
created equally upon the same credit, though he should have dis-
covered a concealed partner, and set up his claim as a partnership
The vendee takes as a tenant in common, subject to the incumbrance of the partner-
ship account, and the account may be taken in equity at the instance of any party in
interest. Bevan v. Lewis, 1 Sim. 376. This whole subject, relative to the adjust-
ment of partnership accounts, is properly, and ought to be exclusively, of equity
jurisdiction. The authorities and the doctrine on this subject were learnedly and
ably discussed by Mr. Justice Cowen, in Phillips v. Cook, 24 Wend. 359; and the
court decided, that on execution at law against one of two partners, the sheriff might
lawfully seize, not merely the moiety, but the corpus of the joint estate, or the whole,
or so much of the entire partnership effects as might be necessary to satisfy the exe-
cution, and sell the interest of the (defendant) partner therein, and deliver the prop-
erty sold to the purchaser. The purchaser becomes thereby a tenant in common
with the other partner, and if he purchases with notice of partnership, he takes sub-
ject to an account between the partners, and to the equitable claims of the partner-
ship creditors. The same point was again so decided in Birdseye v. Ray, 4 Hill (N.
Y.), 161. But see Story on Partn. [§§ 261-264.] Mr. Justice Story [§ 264] concludes,
that the sheriff ought to be enjoined on execution at law from a sale of the separate
interest of the partner defendant in the partnership property, until the account be
taken on a bill in chancery, and the share of the debtor partner ascertained; and
that the decision in Moody v. Payne, 2 Johns. Ch. 548, denying the injunction, was
not founded on the true result of the English decisions. As I have already observed,
the more fit and suitable rule of practice would seem to be, to have the adjustment
of the partnership account to precede the sale. But the current of the authorities,
as I read them, is the other way, and they are emphatically so in New York. In
the case last cited from Wendell, the decision in Moody v. Payne was referred to and
approved. Mr. Justice Story himself, in a subsequent part of his Commentaries on
Partnership, [§ 311,] admits the established rule and practice at law to be, that on
execution at law, the creditor of the debtor partner may seize and sell the tangible
goods and effects of the partnership, or a part thereof, and that the sale would be
good to the extent of the judgment debtor's right, title, and interest therein, to be
afterwards adjusted. In the Court of Chancery in New Jersey, the Chancellor was
of opinion with Judge Story, as respects the sale of personal property. Cammack v.
Johnson, 1 Green Ch. (N. J.) 163; while in Massachusetts, in Reed v. Howard, 2 Met.
36, it was held that the sheriff might seize and take the whole personal property held
by A and B in common, on process of attachment against A only, though he could
only sell an undivided moiety on execution, and the purchaser would become a part-
owner. If the sheriff was to sell the entire property on an execution against one
cotenant or partner, he would be a trespasser. Waddell v. Cook, 2 Hill, 47. Again,
in Moore v. Sample, 3 Ala. 319, it was held that the sheriff on execution against A
might levy on the goods of the firm of A & B, and take exclusive possession, and
sell the interest of A therein, and this proceeding could only be arrested by equitable
interposition. On this litigious subject Ch. J. Tindal said, in Johnson v. Evans,
7 Mann. & Gr. 249, that the general rule of law was, that the judgment creditor of
any partner might take an execution against that partner, as well his separate prop-
erty as his share or interest in all the personal property of the partnership that was
capable of being seized. The sheriff must seize the whole, the shares of two part-
ners being undivided. (Heydon v. Heydon, supra.) This arises from the necessity
of the case. But taking possession of the whole does not convey any interest on
property in the other part-owner's share. The judgment creditor becomes tenant in
[ 80 ]
LECT. XLIII.]
* 66
OF PERSONAL PROPERTY.
creditor. (c) This claim of the joint creditors is not such a lien
upon the partnership property but that a bona fide alienation to a
purchaser for a valuable consideration by the partners, or either
of them, before judgment and execution, will be held valid.
Upon a dissolution of the partnership, each partner has a lien
upon the partnership effects, as well for his indemnity as for his
proportion of the surplus. (d) But creditors have no lien upon
the partnership effects for their debts.2 Their equity is the equity
of the partners operating to the payment of the partnership debts.
These are just and obvious principles of equity, on which we need
not enlarge, and they have been recognized and settled by a
series of English and American decisions. (e)
* 66
*To render the dissolution safe and effectual, there must
be due notice given of it to the world; and a firm may be
bound, after the dissolution of a partnership, by a contract made
by one partner in the usual course of business, and in the name
of the firm, with a person who contracted on the faith of the part-
nership, and had no notice of the dissolution. (a) The principle
on which this responsibility proceeds is the negligence of the
partners in leaving the world in ignorance of the fact of the dis-
solution, and leaving strangers to conclude that the partnership
common with the other partner. The sheriff can only sell the moiety. Jacky v.
Butler, 2 Ld. Raym. 871.
(c) Lord v. Baldwin, 6 Pick. 348; French v. Chase, 6 Greenl. 166.
(d) Lord Eldon, Ex parte Williams, 11 Ves. 5; Story on Partnership [§§ 326, 441.]
It has been adjudged, on good consideration, in the case of Jackson v. Cornell,
1 Sandf. Ch. 348, that on a general assignment of his separate property by an indi-
vidual partner, though before a lien attaches by judgment, execution, or creditor's
bill, he has no right to give preferences to the creditors of the firm, in exclusion of
his individual creditors. Nor, on the other hand, can the partnership, by a general
assignment of the partnership effects, give preference to the creditors of the individ-
ual partners over those of the firm. All such assignments are held to be fraudulent
and void.
(e) West v. Skip, 1 Ves. Sen. 456; Ex parte Ruffin, 6 Ves. 119; Ex parte Fell, 10
Ves. 347; Ex parte Williams, 11 id. 3; Ex parte Kendall, 17 id. 526; The Master of
the Rolls, in Campbell v. Mullett, 2 Swanst. 551; E parte Harris, 1 Mad. 583; Mur-
ray v. Murray, 5 Johns. Ch. 60; Woddrop v. Ward, 3 Desaus. (S. C.) 203; Bell v.
Newman, 5 Serg. & R. 78; Doner v. Stauffer, 1 Penn. 198; White v. Union Insurance
Company, 1 Nott & M'Cord, 557; Ridgeley v. Carey, 1 Har. & McH. 167; M'Culloh
v. Dashiell, 1 Har. & Gill, 96; Story, J., in Hoxie v. Carr, 1 Sumner, 181, 182.
(a) Le Roy v. Johnson, 2 Peters, 186; Brisban v. Boyd, 4 Paige, 17. [City Bank
of Brooklyn v. McChesney, 20 N. Y. 240; Martin v. Searles, 28 Conn. 43; Grady v.
Robinson, 28 Ala. 289; Merrit v. Pollys, 16 B. Mon. 355. See Holdane v. Butter-
worth, 5 Bosw. 1.]
VOL. II.
2 Supra, n. 1.
[81]
* 67
[PART V.
OF PERSONAL PROPERTY.
continued, and to bestow faith and confidence on the partnership
name in consequence of that belief.
What shall be sufficient constructive or implied notice of the
dissolution has been a vexed question in the books. A notice in
one of the public and regular newspapers of the city or county
where the partnership business was carried on is the usual mode
of giving the information, and may, in ordinary cases, be quite
sufficient. But even the sufficiency of that notice might be ques-
tioned in many cases, unless it was shown that the party entitled
to notice was in the habit of reading the paper. Public notice
given in some such reasonable way would not be actual and ex-
press notice; but it would be good presumptive evidence for a
jury to conclude all persons who have not had any previous
67 dealings with the *firm. As to persons who have been in
the habit of dealing with the firm, it is requisite that actual
notice be brought home to the creditor, or, at least, that it be given
under circumstances from which actual notice may be inferred. (a)
If the facts are all found or ascertained, the reasonableness of
notice may be a question of law for the court, and so it was held
in Mowatt v. Howland; (b) but generally it will be a mixed
question of law and fact, to be submitted to a jury under the
direction of the court, whether notice in the particular case, under
all the circumstances, has been sufficient to justify the inference
of actual or constructive knowledge of the fact of the dissolution.
The weight of authority seems now to be, that notice in one of
the usual advertising gazettes of the place where the business
was carried on, and published in a fair and usual manner, is of
itself notice of the fact as to all persons who have not been pre-
(a) Vernon v. The Manhattan Company, 17 Wend. 526; s. c. 22 Wend. 183;
Watkinson v. Bank of Pennsylvania, 4 Whart. 482; Mitchum v. The Bank of Ken-
tucky, 9 Dana, 166; Mauldin v. Bank of Mobile, 2 Ala. 502; Rowley v. Horne,
3 Bing. 2. [Little v. Clark, 36 Penn. St. 114; Reilly v. Smith, 16 La. An. 31; Kirk-
man v. Snodgrass, 3 Head, 370; Devin v. Harris, 3 Greene (Iowa), 186; Johnson v.
Totten, 3 Cal. 343; Pope v. Risley, 23 Mo. 185.] The doctrine seems to be, that
merely taking a newspaper, in which a notice is contained, is not sufficient to charge
a party, for it is not to be contended that he reads the contents of all the notices in the
newspapers which he may chance to take. The inference of constructive notice from
such a source was pretty strongly exploded in some of these cases. [A single previous
dealing is sufficient to give the dealer the protection of the rule. Lyon v. Johnson, 28
Conn. 1. But it seems that the previous dealings must have involved giving credit to
the firm, and that sales for cash would not be sufficient. Clapp v. Rogers, 2 Kern. (12
N. Y.) 283.]
(b) 3 Day, 353.
[82]
LECT. XLIII.]
68
OF PERSONAL PROPERTY.
vious dealers with the partnership. (e)¹ Nor is notice, in fact,
requisite when a partnership is dissolved by operation of law.
A declaration of war puts an end to the continuance of commer-
cial partnership, between subjects of the two countries, having
each his domicile in his own country; and such an official,
solemn act of government is notice to all the world of the most
authentic and monitory kind, and supersedes the necessity of any
other. (d)
When a single partner retires from the firm, the same
notice * is requisite to protect him from continued respon- * 68
sibility; and even if due notice be given, yet, if the retiring
partner willingly suffers his name to continue in the firm, or in the
title of the firm over the door of the shop or store, he will still
be holden. (a) But if the use of the name of the former firm be
continued without his authority, and the retiring partner had
given due notice of the dissolution of the connection, he is not
responsible for the use of his name without his consent or author-
ity, and without any act to warrant it; and he is not bound to
take legal measures to have the use of the former name of the
firm discontinued. Persons must inquire, and know at their peril,
who are truly designated by the firm. (b)¹ A dormant partner
may withdraw without giving public notice of the dissolution of
the partnership; for, being unknown as a partner, the firm was
not trusted on his account, and he is chargeable only for debts
1
(c) Godfrey v. Turnbull, 1 Esp. 371; Parkin v. Carruthers, 3 id. 248; Gorham v.
Thompson, Peake, 42; Graham v. Hope, ib. 154; Leeson v. Holt, 1 Starkie, 186;
Jenkins v. Blizard, ib. 420; Williams v. Keats, 2 Starkie, 290; Wright v. Pulham, 2
Chitty, 121; Rooth v. Quin, 7 Price, 193; Lansing v. Gaine, 2 Johns. 300; Ketcham
v. Clark, 6 id. 144; Graves v. Merry, 6 Cowen, 701; Martin v. Walton, 1 M'Cord, 16;
Bank of South Carolina v. Humphreys, ib. 388; Whitman v. Leonard, 3 Pick. 177;
Prentiss v. Sinclair, 5 Vt. 149; Watkinson v. Bank of Pennsylvania, 4 Whart. 482;
Shurlds v. Tilson, 2 McL. 458.
(d) Griswold v. Waddington, 15 Johns. 57; 16 Johns. 494.
(a) Williams v. Keats, 2 Starkie, 290; Brown v. Leonard, 2 Chitty, 120; Dolman
v. Orchard, 2 Carr. & P. 104.
(b) Newsome v. Coles, 2 Camp. 617; Story on Partn. [§ 160.]
1 See, generally, Boyd v. McCann, 10
Md. 118; Amidown v. Osgood, 24 Vt.
278; Wait v. Brewster, 31 Vt. 516; Pratt
v. Page, 32 Vt. 13; American Linen
Thread Co. v. Wortendyke, 24 N. Y. 550;
Williamson v. Fox, 38 Penn. St. 214;
Clapp v. Upson, 12 Wis. 492; and addi-
tional cases cited ante, 66, n. (a), 67, n. (a).
As has already been said, ante, 56, n. 1,
notice is not necessary when a partner-
ship is dissolved by death.
Marlett v.
Jackman, 3 Allen, 287.
1 But compare the additional cases
cited ante, 66, n. (a).
[83]
* 69
[PART V.
OF PERSONAL PROPERTY..
contracted during the time he was actually a partner. (c) If a
partner retires without notice, he is not liable for a partnership
debt contracted afterwards with a person who never knew he
was a partner, and when he was not so notorious as a partner as
to raise a presumption of that knowledge. (d) In the case of
an infant partner, his acts and contracts are of course voidable ;
but if, on arriving at full age, the infant does not disaffirm the
partnership, and give notice of it to those with whom the partner-
ship have had dealings, he will be responsible for subsequent debts
contracted on the credit of the partnership. The ground of the
rule is, that the infant acted as partner during his infancy, and
when he comes of age he neglects to inform the world that
* 69 * he is not a partner, and suffers it to deal under mistake and
delusion. (a) Having thus far collected and reviewed the
general principles which constitute the law of partnership, and
followed those principles into their practical details, the plan of
these lectures will not permit me to go more minutely into the
subject, or to consider the legal and equitable remedies which
exist between partners, and between them and third persons in
relation to the various rights and duties which belong to the
association. The questions arising upon those remedies, and
particularly in respect to the settlement of the partnership estate,
in the various cases of dissolution, and especially of dissolution
by bankruptcy, are subtle and numerous. The decrees in equity
under this head abound with minute and refined distinctions,
and they form a comprehensive and very complicated part of this
branch of the commercial law. (b)
(c) Evans v. Drummond, 4 Esp. 89; Armstrong v. Hussey, 12 Serg. & R. 315;
Heath v. Sansom, 1 Nev. & Mann. 104; 4 B. & Ad. 172, s. c. [Deford v. Reynolds,
36 Penn. St. 325; Warren v. Ball, 37 Ill. 76; Ayrault v. Chamberlin, 26 Barb. 83, 89;
Grosvenor v. Lloyd, 1 Met. 19; Edwards v. McFall, 5 La. An. 167.] It seems to be the
doctrine of the case of Evans v. Drummond, and especially of that of Thompson v.
Percival, 3 Nev. & Mann. 167, that if a creditor of a dissolved partnership accepts for
his debt the negotiable paper of the acting partner who continues the business, and
who has charge of the effects and of the settlement of the concern, it is evidence of
an agreement to discharge the retiring partner. [Harris v. Farwell, 15 Beav. 31;
Lyth v. Ault, 7 Exch. 669; Yarnell v. Anderson, 14 Mo. 619.]
(d) Carter v. Whalley, 1 B. & Ad. 11; 1 Lloyd & Wels. 297, s. c.; Story on
Partn. [§ 160, n.] [Chamberlain v. Dow, 10 Mich. 319; Cregler v. Durham, 9 Ind. 375.
But see Western Bank of Scotland v. Needell, 1 Fost. & F. 461.]
(a) Goode v. Harrison, 5. B. & Ald. 147.
(b) Among those English treatises which enter more at large on the law of partner◄
ship, I would refer the student to a valuable summary of the law of partners, in the
[84]
LECT. XLII.]
*69
OF PERSONAL PROPERTY.
third volume of Mr. Chitty's large treatise on the Laws of Commerce and Manu-
factures, and the Contracts relating thereto; and, more especially, to the American
edition of Mr. Gow's practical treatise on the Law of Partnership, from which I have
derived great assistance. The American editor, Mr. Ingraham, has enriched the work
with a series of learned notes, in which the American cases are diligently collected,
and the force and application of them ably considered; and I think the book is to be
preferred to the more recent treatise of Mr. Carey, which has nothing in particular to
recommend it, except it be the addition of new cases, arising since the publication of
Mr. Gow. Since the third edition of this work, a new treatise on the Law of Part-
nership, by Mr. Collyer, appeared, with notes of American cases by Mr. Phillips and
Mr. Pickering, of Boston. Commentaries on the Law of Partnership, by Mr. Justice
Story, have also been published since the fourth edition. The last two are works of
great merit, and the latter pre-eminently so, and they have stated fully the principles
and distinctions, and given the learning and cases which belong to the subject. An
able treatise on the Law of Partnership, Railway and other Joint-stock Companies, by
Andrew Bisset, was published at London, in 1847.
1/29
[85]
€72
[PART V.
OF PERSONAL PROPERTY.
LECTURE XLIV.
}
OF NEGOTIABLE PAPER.
1. Of the History of Bills and Notes. It is the general opinion
that the commerce of the ancients was carried on without the
use of bills of exchange, and there is no vestige of them in the
Roman law. A passage in the Pandects (a) shows it to have
been the practice with the creditor who lent money on bottomry,
or respondentia, to a foreign merchant, to send his slave to re-
ceive the loan, with maritime interest, on the arrival of the vessel
at the foreign port. This certainly would not have been neces-
sary, says Pothier, (b) if bills of exchange had been in use. But
however the fact may have been with the Romans, it would
seem, from a passage in one of the pleadings of Isocrates, that
bills of exchange were sometimes resorted to at Athens as a safe
expedient to shift funds from one country to another. (c)
*72 Bills * of exchange are of such indispensable use in the
remittance of the value of money between distant places,
without risk and expense, that foreign commerce cannot con-
veniently be carried on without them. They grew into use on
the coasts of the Mediterranean, in the fourteenth century. (a)
(a) Dig. 22. 2. 4. 1.
(b) Traité du Con. de Change, n. 6.
(c) See the pleading of Isocrates, entitled Trapeziticus. (Isocratis Scripta Omnia,
ed. H. Wolfius, Basle, 1587.) In that interesting forensic argument which Isocrates
puts into the mouth of a son of Sopæus, the governor of a province of Pontus, in his
suit against Pasion, an Athenian banker, for the grossest breach of trust, it is stated that
the son, wishing to receive a large sum of money from his father, applied to Stratocles,
who was about to sail from Athens to Pontus, to leave his money and take a draft
upon his father for the amount. This, said the orator, was deemed a great advantage
to the young man, for it saved him the risk of remittance from Pontus, over a sea
covered with Lacedæmonian pirates. It is added, that Stratocles was so cautious as
to take security from Pasion for the money advanced upon the bill, and to whom he
might have recourse if the governor of Pontus should not honor the draft, and the
young Pontian should fail.
(a) In 1394, the city of Barcelona, by ordinance, regulated the acceptance of bills
of exchange; and the use of them is said to have been introduced into Western
[86]
LECT. XLIV.]
73
OF PERSONAL PROPERTY.
As they serve the purposes of cash, and facilitate commerce, and
are the visible representatives of large masses of property, they
may truly be said to enlarge the capital stock of wealth in circu-
lation, as well as increase the trade of the country.
Promissory notes are governed by the rules that apply to bills.
The statute of 3d and 4th Anne made promissory notes payable
to a person, and to his order, or bearer, negotiable like inland
bills, according to the custom of merchants, and by the statutes
of 9 and 10 Wm. III. c. 17, and 3 and 4 Anne, inland bills are
put upon the footing of foreign bills, except that no protest is
requisite. These statutes have been generally adopted in this
country, either formally or in effect, and promissory notes
are everywhere negotiable. (b) The effect of the statute *is *73
Europe by the Lombard merchants, in the thirteenth century. Bills of exchange are
mentioned in a passage of the Jurist Baldus of the date of 1328. Hallam's Intro-
duction to the Literature of Europe, i. 68. M. Boucher received from M. Legou-
Deflaix, a native of India, a memoir showing that bills of exchange were known in
India from the most high antiquity. But the ordinance of Barcelona is, perhaps, the
earliest authentic document in the middle ages of the establishment and general
currency of bills of exchange. (Consulat de la Mer, par Boucher, i. 614, 620.)
The first bank of exchange and deposit in Europe was established at Barcelona, in
1401, and it was made to accommodate foreigners as well as citizens. Prescott's Fer-
dinand and Isabella, Int. 112. M. Merlin says the edict of Louis XI., of 1462,
is the earliest French edict on the subject; and he attributes the invention of bills of
exchange to the Jews, when they retired from France to Lombardy. The Italians
and merchants of Amsterdam first established the use of them in France. Réper
toire de Jurisprudence, tit. Lettre et Billet de Change, sec. 2. In England, reference
was made, in the statute of 5 Rich. II. c. 2, to the drawing of foreign bills.
This was
in the year 1381.
(b) By the N. Y. Revised Statutes, i. 768, secs. 1–6, promissory notes payable in
money to any person, or to the order of any person, or to bearer, are negotiable in
like manner as inland bills of exchange, according to the custom of merchants. The
payee and indorsee of every such note, payable to them or their order, and the holder
of every such note, payable to bearer, may sue thereon in like manner as in cases of
inland bills of exchange. If such notes are made payable to the order of the maker,
or to the order of a fictitious person, and are negotiated by the maker, they have the
same effect and validity as if made payable to bearer. [See Brown v. De Winton, 6
C. B. 336; Hooper v. Williams, 2 Exch. 13; Wood v. Mylton, 10 Q. B. 805; Miller
v. Weeks, 22 Penn. St. 89; Muldrow v. Caldwell, 7 Mo. 563; Woods v. Ridley, 11
Humph. 194; Smalley v. Wight, 44 Me. 442; post, 78, n. 1.] Promissory notes are nego-
tiable throughout the Union, and the indorsee can sue in his own name. Notes ncgo-
tiable where made, are negotiable everywhere. This is so held in England and in this
country, under the statute of 3 and 4 Anne, and its substitute. Milne v. Graham, 1
B. & C. 192; Hatcher v. McMorine, 4 Dev. (N. C.) 122. So, if a note or debt be
assigned or indorsed abroad, and be suable in the name of the assignee by the law
of the country where it was assigned or indorsed, it would seem to be the better
opinion in England, that the assignee might sue there in his own name, upon the
[ 87 ]
* 73
[PART V.
OF PERSONAL PROPERTY.
to make notes, when negotiated, assume the shape and operation
of bills, and to render the analogy between them so strong,
that the rules established with respect to the one apply to the
other. (a) It was a question much discussed before the statute
of Anne, whether notes were not, by the principles of the law-
merchant, to be treated as bills; and Lord Holt vigorously and
successfully resisted every such attempt. (b) The history of
that struggle is no longer interesting; but there is no doubt that
assignment as creating a right of action in him, and which it does upon the applica-
tion of the doctrine of the lex loci contractus. Innes v. Dunlop, 8 T. R. 595; O'Cal-
laghan v. Thomond, 3 Taunt. 82. [But see Foss v. Nutting, 14 Gray, 484; Richardson
v. N. Y. C. R.R., 98 Mass. 85, 92.] In Massachusetts, Connecticut, Vermont, Ohio,
North Carolina, South Carolina, Alabama, Mississippi, Illinois, Michigan, Missouri,
and most of the states, the indorsee has all the privileges of an indorsee under the
law-merchant. But in New Jersey, Pennsylvania, Virginia, Kentucky, and Indiana,
his rights, under the law-merchant, are to be taken with some qualification. See
Griffith's Law Register, passim. Minor (Ala.), 5, 296; Revised Statutes of North
Carolina, 1837, i. 93; Revised Statutes of Vermont, 1839, 336; Revised Code of
Mississippi, 1822, 464. In Georgia, notice to the indorser of nonpayment of a
promissory note by the maker is declared to be unnecessary, and every such indorser
is held to be bound as security, and in that character may require the holder to
proceed against the maker. Hotchkiss's Code of Laws, 441. Notes or bills dis-
counted at a bank, or deposited for collection, are placed by statute in Pennsylvania
on the footing of foreign bills of exchange as to payment and remedy. Purdon's Dig.
108. As the English statute has not been adopted in Virginia, the last assignee of a
promissory note cannot maintain an action against a remote indorser, there being
neither consideration nor privity. Dunlop v. Harris, 5 Call, 16. In New Hampshire
the statutes of 9 and 10 William III. and 3 and 4 Anne, respecting inland bills, and
promissory notes, were reenacted during the colony administration. In Indiana,
promissory notes, payable at a chartered bank within the state, are, by statute, placed on
the same footing as inland bills of exchange by the law-merchant. Revised Statutes
of Indiana, 1838, 119. But other promissory notes are not governed by the law-mer-
chant, which has never been applied in that state by statute to them.
Bullitt v.
Schribner, 1 Blackf. (Ind.) 14. The lex mercatoria, applicable to foreign and inland
bills of exchange, is considered to be adopted in Indiana as part of the common law
of England, which has been adopted by statute. Piatt v. Eads, ib. 81. In Pennsyl
vania, Virginia, Georgia, Arkansas, Missouri, and Mississippi, sealed instruments, as
well as notes, are made negotiable by statute; and in Arkansas, all agreements and
contracts in writing, for the payment of money or property, are made assignable. But
these assignments, in some of these last mentioned states, expressly reserve to the
debtor all matters of defence existing prior to the notice of the assignment. This is
the case in Mississippi. Allein v. The Agricultural Bank, 3 Smedes & M. 48. In
Georgia, by statute of 1799, promissory notes are made negotiable, though given
for specific articles. And so are specialties and liquidated demands negotiable by
act of 1799. Broughton v. Badgett, 1 Kelly, 75; Daniel v. Andrews, Dudley, 157;
Gamblin v. Walker, 1 Ark. 220; Hening's Statutes, xii.; Block v. Walker, 2 Ark. 7;
Revised Statutes of Arkansas, 107; Revised Code of Mississippi, 1824, 461.
(a) Heylin v. Adamson, 2 Burr. 669; Brown v. Harraden, 4 T. R. 148.
(b) Clerke v. Martin, 2 Ld. Raym. 757.
[88].
LECT. XLIV.]
*75
OF PERSONAL PROPERTY.
promissory notes were recognized as mercantile instruments, and
a species of bills of exchange, by the canon law and the
usage of trade; and even by the French ordinance of *74
1673, long before Lord Holt asserted them to be of late
English invention. (a)
My object in the present lecture is to endeavor to take a com-
prehensive, and at the same time precise and accurate view of
the general doctrine and most material rules relative to bills and
notes; and to effect this purpose, I shall point out their essential
qualities; the rights of the holder; the negotiation of them, and
the requisite steps to fix the responsibility of the several parties
whose names are upon the paper.
2. Of the Essential Qualities of Negotiable Paper, as Bills, Notes, and
Checks. A bill of exchange is a written order or request, and a
promissory note a written promise, by one person to another, for
the payment of money, at a specified time, absolutely, and at all
events. (b) ¹ If A, living in New York, wishes to receive one
thousand dollars, which await his orders in the hands of B, in
London, he applies to C, going from New York to London, to
pay him one thousand dollars, and take his draft on B, for that
sum payable at sight. This is an accommodation to all parties.
A receives his debt by transferring it to C, who carries his money
across the Atlantic in the shape of a bill of exchange, without
any danger or risk in the transportation; and on his arrival at
London, he presents the bill to B, and is paid. This is the
plain and familiar illustration of this mode of remittance, *75
given by Sir William Blackstone; and the practice is so
very convenient, and suggests itself so readily, and gives such
extension to credit and circulation to capital, that it would seem
almost impossible that it should not have been in use in the ear-
(a) The pragmatic of Pope Pius V., De Cambiis, as early as 1571, is mentioned by
Mr. Du Ponceau, in his dissertation on the Nature and Extent of the Jurisdiction of
the Courts of the United States, 122, as proof of the early recognition of notes as nego-
tiable instruments within the custom of merchants. I would also refer to the Appendix
to 1 Cranch's Reports, for a very elaborate argument in favor of the position, that at
common law, and before the statute of Anne, an indorsee of a promissory note could
sue a remote indorser.
(b) This definition is taken from Bayley on Bills, 1, which is a concise, clear, and
accurate production. The American edition, published at Boston in 1826, is enriched
with all the English and American decisions in its very copious notes.
1 See 76,.n. 1.
[89]
#75
[PART V.
OF PERSONAL PROPERTY.
liest periods of commerce. A, who draws the bill, is called the
drawer. B, to whom it is addressed, is called the drawee, and,
on acceptance, he becomes the acceptor. C, to whom the bill is
made payable, is called the payee. (a) As the bill is payable to
C, or his order, he may, by indorsement, direct the bill to be paid
to D; and in that case, C becomes the indorser, and D, to whom
the bill is indorsed, is called the indorsee or holder. A check
upon a bank partakes more of the character of a bill of exchange
than of a promissory note. It is made payable to bearer, or to
order, and transferable by delivery or indorsement like a bill of
exchange. It is not a direct promise by the drawer to pay, but
it is an implied undertaking, on his part, that the drawee shall
accept and pay, and the drawer is answerable only in the event
of the failure of the drawee to pay. A check payable to bearer
passes by delivery, and the bearer may sue on it as on an inland
bill of exchange. (b)¹
A bill or note is not confined to any set form of words. A
promise to deliver, or to be accountable, or to be responsible for so
much money, is a good bill or note; but it must be exclusively
and absolutely for the payment of money. (c) In England, nego-
tiable paper must be for the payment of money in specie, and
(a) An instrument may be a bill of exchange, though the drawer and drawee be
the same person. Harvey v. Kay, 9 B. & C. 356; Randolph v. Parish, 9 Porter
(Ala.), 76; Potter v. Tyler, 2 Met. 58. In Miller v. Thomson, 3 Mann. & Gr. 576,
Ch. J. Tindal said that two distinct parties, as drawer and drawee, were essential to
the constitution of a bill of exchange; and as the instrument in that case was drawn
by one of the company upon the firm, and on its behalf, it was good as a promissory
note.
(b) See infra, 104, note; Cruger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren,
ib. 259; Woods v. Schroeder, 4 Harr. & J. 276; Lord Kenyon, in Boehm v. Sterling,
7 T. R. 430; Walker v. Geisse, 4 Whart. 252. In the late case in England, of Serle
v. Norton, 9 M. & W. 309, a post-dated check was held altogether void. [Taylor
v. Sip, post, 88, n. 1.] We may well demur to that decision. In Wookey v. Pole,
4 B. & Ald. 1, it was held that exchequer bills pass by delivery to the bona fide
[holder] for value, because they were negotiable securities, and represented money.
The statute of 48 Geo. III. c. 6, directed them to be circulated.
(c) Morris v. Lee, 2 Ld. Raym. 1396; 8 Mod. 362; Str. 629; Martin v. Chauntry,
Str. 1271; Thomas v. Roosa, 7 Johns. 461. [Barnes v. Gorman, 9 Rich. 297; Austin
v. Burns, 16 Barb. 643; Dodge v. Emerson, 34 Me. 96. The student should be warned
that the law-merchant is more or less modified by statute in the different states, e.g.
Muhling v. Sattler, 3 Met. (Ky.) 285.] The initials of the maker's name will bind
him as the maker of a promissory note. Palmer v. Stephens, 1 Denio, 471. So,
I. O. U. £10, is a promissory note. 1 Carr. & K. 35.
1 See, as to checks, post, 88, n. 1; 76, n. 1; 78, n. 1.
[90]
LECT. XLIV.]
*76
OF PERSONAL PROPERTY.
not in bank-notes. (d) In this country it has been held, that a
note payable in bank-bills was a good negotiable note within
the statute, if confined to a species of paper universally* cur- *76
rent as cash. (a) But the doctrine of these cases has been
met and denied, (b) and I think the weight of argument is
against them, and in favor of the English rule. It is essential
(d) Bayley on Bills, ed. Boston, 1826, 6; Story on Bills, [§ 43]; s. P. Whiteman
v. Childress, 6 Humph. 303.
(a) Keith v. Jones, 9 Johns. 120; Judah v. Harris, 19 id. 144.
(b) M'Cormick v. Trotter, 10 Serg. & R. 94; Gray v. Donahoe, 4 Watts, 400;
Hasbrook v. Palmer, 2 McL. 10.
1 Essential Qualities. The English
rule prevails in Hasbrook v. Palmer, 2
McL. 10; Fry v. Rousseau, 3 McL. 106;
Simpson v. Moulden, 3 Coldw. 429; Mc-
Dowell v. Keller, 4 Coldw. 258; Rinds-
koff v. Barret, 11 Iowa, 172; Collins v.
Lincoln, 11 Vt. 268; Farwell v. Kennett,
7 Mo. 595; Warren v. Brown, 64 N. C.
381; Bank of Mobile v. Brown, 42 Ala.
108. But see Swetland v. Creigh, 15
Ohio, 118; White v. Richmond, 16 Ohio,
5. So instruments in the form of bills
or notes for a certain sum payable in
specified merchandise, are not bills of ex-
change or promissory notes, and are not
negotiable. Gushee v. Eddy, 11 Gray,
502; Sears v. Lawrence, 15 Gray, 267;
Corbitt v. Stonemetz, 15 Wis. 170. See
Branning v. Markham, 12 Allen, 454;
Easton v. Hyde, 13 Minn. 90. (But this
has been changed by statute in some states.
72, n. (b); 79, n. (a).) Nor are those pay-
able only out of a particular fund. Worden
v. Dodge, 4 Denio, 159; Harriman v. San-
born, 43 N. H. 128; Averett v. Booker, 15
Gratt. 163; Kinney v. Lee, 10 Texas, 155;
Raigauel v. Ayliff, 16 Ark. 594; Dyer v.
Covington, 19 Penn. St. 200; Wheeler v.
Stone, 4 Gill, 38, 48. But a mere refer-
ence to the consideration of the order or
to a fund out of which a drawee may re-
imburse himself, will not affect negotia-
bility. Griffin v. Weatherby, L. R. 3 Q.
B. 753. See Coursin v. Ledlie, 31 Penn.
St. 506; Lowery v. Steward, 3 Bosw.
505; Arnold v. Rock R. V. Union R.R.,
5 Duer, 207.
The general principle is that the sum
of money must be certain, and on this
ground a promise to pay a certain amount
with current exchange, has been held not to
be a promissory note. Lowe v. Bliss, 24
Ill. 168; Palmer v. Fahnestock, 9 Upper
Can. C. P. 172. Contra, Smith v. Ken-
dall, 9 Mich. 241; Leggett v. Jones, 10
Wis. 34.
With regard to certainty of time, it
has been held that a promise to pay a
certain sum with interest when the payee
is twenty-one years old, is not a promis-
sory note, as the time may never arrive.
Kelley v. Hemmingway, 13 Ill. 604. See,
generally, Brooks v. Hargreaves, 21 Mich.
254.
Examples of notes which have been
held not negotiable on the ground that
the promise to pay was not absolute, but
was subject to a contingency, will be
found in American Exchange Bank v.
Blanchard, 7 Allen, 333; Grant v. Wood,
12 Gray, 220. Examples of. instruments
held negotiable notwithstanding some
ambiguous words, besides Coursin v. Led-
lie and other cases cited sup., are Jury v.
Barker, El., Bl. & El. 459; Hereth v.
Meyer, 33 Ind. 511; Hodges v. Shuler, 22
N. Y. 114; Zimmerman v. Anderson, 67
Penn. St. 421.
The holder of an instrument made in
terms so ambiguous that it is doubtful
whether it be a bill of exchange or a
promissory note, may treat it as either at
his election. Peto v. Reynolds, 9 Exch.
410; Armfield v. Allport, 27 L. J. N. §.
[91]
⚫ 76
[PART V.
OF PERSONAL PROPERTY.
that the bill carry with it a personal credit, given to the drawer
or indorser, and that it be not confined to credit upon any future
or contingent event or fund. The payment must not rest upon
any contingency, except the failure of the general personal credit
of the person drawing or negotiating the instrument. (c) It
would perplex the commercial transactions of mankind, if paper
securities of this kind were encumbered with conditions and con-
tingencies, and if the persons to whom they were offered in
negotiation were obliged to inquire when those uncertain events
would probably be reduced to a certainty. But if the event on
which the instrument is to become payable be fixed and certain,
(c) Dawkes v. De Lorane, 3 Wils. 207; Beardesley v. Baldwin, 2 Str. 1151; Roberts
v. Peake, 1 Burr. 323; Cook v. Satterlee, 6 Cowen, 108; Van Vacter v. Flack, 1 Smedes
& M. 393. In Palmer v. Pratt, 9 Moore C. B. 358, it was held, that a bill of exchange
drawn upon a contingency was void; but a bill may be accepted upon a contingency.
A draft on the P M. General is not a negotiable bill of exchange, because it is under-
stood to be drawn against a contingent public fund, under the control of the post-
office department. 2 Whart. 233.
Exch. 42; Fielder v. Marshall, 9 C. B.
N. s. 606; Lloyd v. Oliver, 18 Q. B. 471;
Burnheisel v. Field, 17 Ind. 609. But
when the instrument is only inchoate it
cannot be recovered on, as in the case of
an acceptance without the name of a
drawer attached to it. Stoessiger v.
South-Eastern R. Co., 3 El. & Bl. 549;
M'Call v. Taylor, 34 L. J. N. s. C. P. 365;
Goldsmid v. Hampton, 5 C. B. N. s. 94,
107. See Ex parte Hayward, L. R. 6 Ch.
546.
As to what are negotiable words, see
Raymond v. Middleton, 29 Penn. St. 530.
The payee of a bill or note must be a per-
son capable of being ascertained at the
time the bill is accepted or the note made.
Yates v. Nash, 8 C. B. N. s. 581; Storm ".
Stirling, 3 El. & Bl. 832; s. c. nom. Cowie
v. Stirling, 6 El. & Bl. 333. (See M'Call v.
Taylor, 34 L. J. N. s. C. P. 365); Osgood
v. Pearsons, 4 Gray, 455; Musselman v.
Oakes, 19 Ill. 81. (Compare Bennington
v. Dinsmore, 2 Gill, 348; Lyon v. Mar-
shall, 11 Barb. 241; Tibble v. Thomas,
30 Miss. 122; Bowles v. Lambert, 54 Ill.
237; with Moody v. Threlkeld, 13 Ga.
55; Adams v. King, 16 Ill. 169; Knight v.
Jones, 21 Mich. 161.) But compare with
Yates v. Nash, &c., sup. ; Holmes v. Jaques,
L. R. 1 Q. B. 376; Davis v. Garr, 2 Seld.
124. Checks may be made payable to
order as well as to bearer, and may be in-
dorsed like other negotiable instruments.
Keene v. Beard, 8 C. B. N. s. 372.
With regard to the signature, it was
held in Bartlett v. Tucker, 104 Mass. 336,
by a majority of the court, that a party who
had signed a note with a name which was
either fictitious or which he had no author-
ity to use, and which he had never held
out as his own, was not liable to one who
purchased it as the business paper of the
payees, and who did not know that the
defendant signed it or give him any credit
thereon. But it was admitted that a
party might be held who signed, with in-
tent to bind himself thereby, his initial,
or a mark, or any name under which he
was proved to have held himself out to
the world and carried on his business.
See, also, 75, n. (c); 78, n. (c); Fuller
v. Hooper, 3 Gray, 334; Willoughby v.
Moulton, 47 N. H. 205; Weston v. Myers,
33 Ill. 424.
As to sealed instruments, see 89, n. 2.
[92]
LECT. XLIV.]
*77
OF PERSONAL PROPERTY.
and must happen, as if the bill be drawn payable six weeks after
the death of the maker's father, it is a good bill, and it is of no
consequence how long the payment is to be postponed. (d)
Nor is it necessary * that the note should be made at home. *77
Foreign as well as inland notes are equally negotiable
within the statute of Anne; (a) and a promissory note made in
England, and transferred by indorsement or delivery in a foreign
country, to a party taking it there for value, gives a title which
may be asserted in England. (6)
The instrument must be made payable to the payee, or to his
order or assigns, or to bearer, in order to render it negotiable.
It must have negotiable words on its face, showing it to be the
intention to give it a transferable quality. Without them, a
promissory note is a valid instrument within the statute of 3 and
4 Anne, as between the parties, and is entitled to the allowance
of the three days of grace, and may be declared on as a promissory
note within the statute. (c)¹ But if it wants negotiable words,
it cannot be transferred or negotiated so as to enable the assignee
to sue upon it in his own name. (d) If the name of the payee
(d) Cook v. Colehan, Str. 1217. It is even held, that a note payable within two
months after such a ship is paid off, is a good negotiable note, as the event is morally
certain (Andrews v. Franklin, Str. 24); but I should think such a reference was not
sufficiently certain, and that the case might well have been questioned, if it had not
been subsequently confirmed in 1 Wils. 262; 3 id. 213. The numerous English and
American cases all going to the support of this one general proposition, that the money
mentioned in the instrument must be payable absolutely, and at all events, and not
made to depend on any uncertainty or contingency, are diligently and accurately col-
lected in Bayley on Bills, ed. Boston, 1826, pp. 8-15, and Chitty on Bills, ed. Phil.
1826, pp. 42-50, and by Mr. Justice Story, in Story on Bills, [§§ 46, 47.] In Moffatt v.
Edwards, 1 Carr. & M. 16, it was held by Mr. Justice Patteson, that a promissory
note must specify a particular time of payment. But the case of Ellis v. Mason, in a
note to that case, seems to be otherwise.
(a) Milne v. Graham, 1 B. & C. 192; Bentley v. Northouse, Mood. & M. 66. Vide
8. P. supra, 72, note b.
(b) De la Chaumette v. The Bank of England, 9 B. & C. 208. But this point
seems to be still contested. See a discussion of it in the London Law Magazine, [iii.]
117; [post, 95, n. 1.]
(c) Stcry on Bills, [§ 60]; id. on Promissory Notes, p. 3; Duncan v. Maryland
Savings Institution, 10 Gill & J. 299.
(d) Hiil v. Lewis, 1 Salk. 132; Burchell v. Slocock, 2 Ld. Raym. 1545; Smith v.
Kendall, 6 T. R. 123; Rex v. Box, 6 Taunt. 325; Moyser v. Whitaker, 9 B. & C. 409;
Ex parte Robinson, 1 Deac. & Ch. 275; Gerard v. La Coste, 1 Dallas, 194; Downing
1 See Wells v. Brigham, 6 Cush. 6. See, also, 76, n. 1.
[93]
78
[PART V.
OF PERSONAL PROPERTY.
or indorser be left blank, any bona fide holder may insert his own
name as payee. (e)
It is usual to insert the words value received, in a bill or note,
but they are unnecessary, and value is implied in every nego-
tiable bill, note, acceptance, and indorsement. The burden
of proof rests upon the other party to rebut the presumption of
validity and value, which the law raises for the protection and
support of negotiable paper. (f) These words are not usual
in checks, which are negotiable, like inland bills, and are
*78 * governed by the same rules. (a) Nor is it necessary
that the maker should subscribe his name at the bottom of
the note; and it is sufficient if the maker's name be in any part
of the note, as if it should run, I, A. B., promise to pay C. D.,
or order, one hundred dollars. (b) This is, however, so much
out of the common course, that a note wanting the usual sub-
scription would be deemed imperfect, and it would, in point of
fact, destroy its currency, and the public would very reasonably
conclude that the note had been left unfinished, and had got
into circulation by fraud or mistake. If the note be payable to B.,
or bearer, it need not be indorsed; and it is the same, in effect,
as if the name of B. had been omitted. The bearer may sue
in his own name; and if his right and title, or the consideration,
v. Backenstoes, 3 Caines, 137. In Aldis v. Johnson, 1 Vt. 136, it was held, that the
indorsee of a note not negotiable was nevertheless bound to follow the rules of the
law-merchant, in making the demand of payment, and giving notice of non-payment.
The modern French commercial code requires bills and notes to be made payable to
order. Code de Comm. arts. 110, 188; whereas, in Scotland, a bill of exchange is
good, and negotiable, and assignable, though it does not contain any words making
it payable to order or to bearer. Bell's Comm. i. 401.
(e) Cruchley v. Clarance, 2 Maule & S.90; 5 Taunt. 529, s. p. If there be no
payee to whom the bill is payable, it cannot be sued upon by a third person as
bearer. Prewitt v. Chapman, 6 Ala. 86.
(ƒ) Hatch v. Trayes, 11 Ad. & El. 702; Story on Bills, [§§ 63, 178;] Grant v. Da
Costa, 3 M. & S. 352; Whitaker v. Edmunds, 1 Mood. & R. 366; Knight v. Pugh, 4
Watts & S. 445; Beltzhoover v. Blackstock, 3 Watts, 27; Benjamin v. Tillman, 2
McL. 213. In the State of Missouri, by statute (R. Code, 1835), to make a promissory
note negotiable, it must contain the words "for value received, negotiable and payable
without defalcation." 6 Mo. 265. So in France, and in some parts of Germany, by
positive regulation, the omission to state the value received on the face of the bill
vitiates it. Code de Comm. art. 110; Heineccius, Elem. de Camb. c. 4, secs. 13, 14.
(a) Poplewell v. Wilson, 1 Str. 264; Emery v. Bartlett, 2 Ld. Raym. 1555; Boehm
v. Sterling, 7 T. R. 423; White v. Ledwich, cited in Bayley on Bills, [c. 1, § 13.]
(b) Taylor v. Dobbins, 1 Str. 399; Elliot v. Cooper, 2 Ld. Raym. 1376.
[94]
LECT. XLIV.]
* 78
OF PERSONAL PROPERTY.
be called in question, he must then show that he came by the
note bona fide, and for a valuable consideratior. (c) So a bill or
note, payable to a fictitious person, may be sued by an innocent
indorsee, as a note payable to bearer; and such a bill or note is
good against the drawer or maker, and will bind the acceptor,
if the fact that the payee was fictitious was known to the
acceptor. (d) ¹
1
3. Of the Rights of the Holder. - Possession is prima facie evi-
dence of property in negotiable paper, payable to bearer, or
indorsed in blank, and the bearer, though a mere agent, or the
original payee, when the indorsement is in blank, may sue on it
in his own name, without showing title, unless circumstances
appear creating suspicion. (e) 2 The bona fide holder can re-
(c) Grant v. Vaughan, 3 Burr. 1516; Bowen v. Viel, 18 Martin (La.), 565;
Matthews v. Hall, 1 Vt. 316, where the cases on the subject are thoroughly con-
sidered.
(d) Collis v. Emett, 1 H. Bl. 313; Minet v. Gibson, 3 T. R. 481; 1 H. Bl.
569; Tatlock v. Harris, 3 T. R. 174; Hunter v. Blodget, 2 Yeates, 480; Foster v.
Shattuck, 2 N. H. 446. The general rule is, says Mr. Justice Story (Story on Bills,
524), that payment of a forged bill will have no effect to charge other parties there-
with, who, if it had been genuine, would have been liable therefor, unless they have
given currency to the bill, by adopting, or passing, or accepting it as genuine.
(e) Mauran v. Lamb, 7 Cowen, 174; Pearce v. Austin, 4 Whart. 489; Barbarin v.
Daniels, 7 La. 481; Denton v. Duplessis, 12 id. 92; Hill v. Holmes, ib. 96. Story on
Promissory Notes, [§ 381.] If a negotiable note be assigned and delivered for a valu-
able consideration without any indorsement, the right passes, and the assignee may
recover in the name of the payee. Jones v. Witter, 13 Mass. 304. So it has been
held, that the figures 128, put on the back of a bill of exchange as a substitute for the
name of the indorser, and intended as such, is good and obligatory as an indorsement,
but a dissenting judge strongly held otherwise. Butchers & Drovers' Bank v.
Brown, 1 New York Legal Observer, 149. [Affirmed on error in Supreme Court, 6
Hill, 443. See 76, n. 1.]
1 Post, 114, 115; Mechanics' Bank v.
Straiton, 5 Abb. Pr. N. s. 11; 3 Keyes,
365; Farnsworth v. Drake, 11 Ind. 101.
So a check made payable to words with-
out meaning, e. g., "to the order of bills
payable," or, "of 1658," is payable to
bearer. Willets v. Phoenix Bank, 2 Duer,
121; Mechanics' Bank v. Straiton, 3
Keyes, 365; ante, 72, n. (b).
An acceptor supra protest for the honor
of the drawer will be bound by his ac-
ceptance, although he had no notice that
the payee was fictitious, at the time of
his acceptance. Phillips v. Im Thurn,
18 C. B. N. s. 694; L. R. 1 C. P. 463.
2 Rights of Holder. - The text is con-
firmed by James v. Chalmers, 2 Seld. 209;
Seeley v. Engell, 17 Barb. 530; Lemon v.
Temple, 7 (Port.) Ind. 556; Shelton v.
Sherfey, 3 Greene (Iowa), 108; Wilson
v. Lazier, 11 Gratt. 477; Pettee v. Prout,
3 Gray, 502; Bush v. Seaton, 4 Ind. 522.
But see Richardson v. Gower, 10 Rich. 109.
It may be mentioned here that an in-
nocent holder of a negotiable instrument,
taken with no other knowledge than the
[95]
* 79
[PART V.
OF PERSONAL PROPERTY.
*79 cover upon the paper, though it * came to him from a per-
son who had stolen or robbed it from the true owner,
provided he took it innocently, in the course of trade, for a
valuable consideration, and not overdue, and under circumstances
of due caution; and he need not account for his possession
of it unless suspicion be raised. (a) This doctrine is founded
on the commercial policy of sustaining the credit and circula-
tion of negotiable paper. Suspicion must be cast upon the title
of the holder, by showing that the instrument had got into
circulation by force of fraud, before the onus is cast upon the
(a) Miller v. Race, 1 Burr. 452; Grant v. Vaughan, 3 id. 1516; Peacock v. Rhodes,
Doug. 633; King v. Milsom, 2 Camp. 5; Solomons v. The Bank of England, 13 East,
135, in notis; Paterson v. Hardacre, 4 Taunt. 114; Bleaden v. Charles, 7 Bing. 246 ;
Cruger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren, ib. 259; Thurston v.
M'Kown, 6 Mass. 428; Wheeler v. Guild, 20 Pick. 545; Aldrich v. Warren, 16 Me.
465; Lapice v. Clifton, 17 La. 152; Story on Promissory Notes, 469. A statute of
Illinois declared, that if any fraud or circumvention be used in obtaining the making
or executing a note, it should be void, not only between the maker and payee, but
also in the hands of every subsequent holder; and in Woods v. Hynes, and Mulford
v. Shepard, 1 Scam. 103, 583, it was held, that the fraud that would vitiate the note
in the hands of the innocent assignee must be in obtaining the making or executing the
note, and that fraud in relation to the consideration, or in the contract upon which it
was given, would not be sufficient to affect its negotiability and validity in the hands
of the innocent assignee. In Illinois, the commercial law as to negotiable paper seems
to be well established. The statute of that state goes further, and makes notes
assignable that promise to pay money, or articles of personal property, or any sum of
money in personal property. R. L. 482; Ransom v. Jones, 1 Scam. 293. Again, in
Mississippi, it is held that if a person about to purchase a promissory note before due,
inquires of the maker if the note be good, who said it was, and would be paid at
maturity, he could not afterward set up a failure of consideration against the as-
signees, although he was ignorant at the time of such failure when he gave the
assurance. Hamer v. Johnston, 5 How. 698; Marshall v. Morton, 1 Smedes & M.
Ch. 563, s. P. The case which held that the maker, by giving such assurance, had
waived his defence, was correctly and justly decided, notwithstanding that by statute
in Mississippi the general rule is, that the maker of a promissory note, after assign-
ment, is entitled to the same defence against subsequent indorsees as against the
original payee.
paper furnishes, has a right to treat the
parties to it as liable to him in the same
manner and order and to the same extent
as they appear to be on the instrument,
although the relations of the parties may
be different as between themselves.
Knowledge subsequently acquired by the
holder does not affect his rights. Hoge v.
Lansing, 35 N. Y. 136; Farmers & Me-
chanics' Bank v. Rathbone, 26 Vt. 19.
The rule is stated more strongly in
Manley v. Boycot, 2 El. & Bl. 46; Strong
v. Foster, 17 C. B. 201; Yates v. Donald-
son, 5 Md. 389, 399; Hansbrough v. Gray,
3 Gratt. 356; Watson v. Shuttleworth,
53 Barb. 357; post, 86, 1, case first cited.
But see Adle v. Metoyer, 1 La. An. 254;
Parks v. Ingram, 2 Fost. (22 N. H.) 283.
"
[96]
LECT. XLIV.]
*79
OF PERSONAL PROPERTY.
holder of showing the consideration he gave for it. (b)¹ So much
protection, for the sake of trade, is given to the holder of negotia-
ble paper, who receives it fairly in the way of business, that he
can recover upon it, though it has been paid, if he received it be-
(b) Collins v. Martin, 1 Bos. & P. 648; Reynolds v. Chettle, 2 Camp. 596;
Munroe v. Cooper, 5 Pick. 412; Story on Bills, [§ 193;] Bailey v. Bidwell, 13 M. &
W. 73. So, if there was no original consideration for the bill, the holder must show
that either he or the original indorsee gave value for it. Thomas v. Newton, 2 Carr. &
P. 606. But if the note be payable to B or order, and be lost or stolen, in that case the
maker pays at his peril, for he is bound to ascertain the identity of the party to whom
he pays. Pardessus, Droit Com. ii. art. 197; Story on Promissory Notes, p. 470.
1 Effect of Fraud, &c. The text is
confirmed by Smith v. Braine, 16 Q.
B. 244, 250; Fitch v. Jones, 5 El. &
Bl. 238;
Mather v. Lord Maidstone, 1
C. B. N. s. 273; Hall v. Featherstone,
3 Hurlst. & N. 284; Smith v. Sac County,
11 Wall. 139; Clark v. Pease, 41 N.
H. 414; Perrin v. Noyes, 39 Me. 384;
Gallagher v. Black, 44 Me. 99; Bissell v.
Morgan, 11 Cush. 198; Sistermans v.
Field, 9 Gray, 331; Tucker v. Morrill,
1 Allen, 528; Ross v. Bedell, 5 Duer,
462; McKesson v. Stanberry, 3 Ohio St.
156; Bertrand v. Barkman, 13 Ark. 150;
Hutchinson v. Boggs, 28 Penn. St. 294;
Merchants' Exch. N. Bank v. New Bruns-
wick S. Inst., 4 Vroom (33 N. J.), 170,
172; Farmers' & Cit.'s Bank v. Noxon,
45 N. Y. 762. Paton v. Coit, 5 Mich. 505,
and some of the above cases show that
the same is true when the consideration
between the original parties was illegal.
See Baxter v. Ellis, 57 Me. 178. So when
the note was obtained by duress. First
N. Bank of Cortland v. Green, 43 N. Y.
298.
But it is otherwise when a mere want
of consideration as between the original
parties is shown. Fitch v. Jones, 5 El. &
Bl. 238; Ellicott v. Martin, 6 Md. 509;
Ross v. Bedell, 5 Duer, 462; Sloan v.
Union B. Co., 67 Penn. St. 470; Wilson v.
Lazier, 11 Gratt. 477. See Woodman v.
Churchill, 52 Me. 58.
In some cases it has been held that
fraud will invalidate a negotiable instru-
ment, even in the hands of an innocent
VOL. III.
7
transferee, for value. If a party is in-
duced to sign it by a fraudulent repre-
sentation that the contract is of an entirely
different nature, such as a guarantee, and
is guilty of no negligence in doing so, he
will not be held. Foster v. Mackinnon,
L. R. 4 C. P. 704; Whitney v. Snyder, 2
Lansing, 477; Roberts v. Hall, 37 Conn.
205, 211; Gibbs v. Linabury, 22 Mich.
479. Nance v. Lary, 5 Ala. 370, may be
called the leading case. But see Doug-
lass v. Matting, 29 Iowa, 498. Compare ii.
482, n. 1; Schuylkill Cy. v. Copley, 67
Penn. St. 386; Commonwealth v. Sankey,
22 Penn. St. 390; Caulkins v. Whisler, 29
Iowa, 495. And if the maker has never
delivered the note to any one, or done
any thing which estops him to deny that
he delivered it, it has been held on very
strong reasoning that he is not liable
even to an innocent holder. Burson v.
Huntington, 21 Mich. 415 (distinguish-
ing Worcester Bank v. Dorchester &
Milton Bank, 10 Cush. 488, the case of
bank-bills, and declining to follow the ill-
considered case of Shipley v. Carroll, 45
Ill. 285). See, also, Hall v. Wilson, 16
Barb. 548; Awde v. Dixon, 6 Exch. 869.
But the opposite doctrine has been main-
tained on grounds of public policy. See
Ingham v. Primrose, 7 C. B. N. s. 82, 85;
Swan v. North B. A. Co., 2 Hurlst. &
Colt. 175, 185; (qualified, however, by
the same judge, L. R. 4 C. P. 709;)
Clarke v. Johnson, 54 Ill. 296. Awde v.
Dixon is thought not to be followed in
America, Spitler v. James, 32 Ind. 202.
[97]
* 80
[PART V.
OF PERSONAL PROPERTY.
-
fore it fell due. Where one has done a mercantile act, said Lord
Ch. Baron Gilbert, he subjects himself to mercantile law. (c) If,
however, it appears by proof or admission, that the agent to whom
a negotiable note is indorsed for the use of his principal has no in-
terest in it, he cannot sue and recover upon it in his own name. (d)
There are but few cases in which a bill or note is void in the
hands of an innocent indorsee for valuable consideration
;
*80 such cases are, when the consideration in the * instrument
is money won at play, or it be given for a usurious debt.
The English statutes against usury and gaming (and which have
been adopted generally throughout the United States) are per-
emptory, and make the bill or note absolutely void. (a)¹ The
(c) Gilbert's Lex Prætoria, 288, 289. The holder will hold it unaffected as to any
antecedent equities between the parties, if he takes it without notice of any facts
which implicate its validity as between the prior parties, and in payment of a prece-
dent debt; and he is not bound to prove, in the first instance, that he is a bona fide
holder for a valuable consideration, for the law will presume it, until the presumption
be rebutted by contrary proof. Swift v. Tyson, 16 Peters, 1; Carlisle v. Wishart,
11 Ohio, 172; Brush v. Scribner, 11 Conn. 388; Bank of Salina v. Babcock, 21
Wend. 499; Bank of Sandusky v. Scoville, 24 id. 115; Mohawk Bank v. Corey, 1
Hill (N. Y.), 513; Riley v. Anderson, 2 McL. 589.
(d) Thatcher v. Winslow, 5 Mason, 58. The soundness of this decision has
been questioned.
(a) Bowyer v. Bampton, Str. 1155; Lord Mansfield, in Peacock v. Rhodes,
Doug. 636; Lowe v. Waller, ib. 736; Ackland v. Pearce, 2 Camp. 599. Since the
above decisions, 'the statute of 58 Geo. III. c. 98, was passed, which protects bills
and notes, in the hands of an indorsee, for valuable consideration, and without
notice, though founded on usury; and as there seems to be a strong disposition, at
the present day, to free usury from civil impediments, it is probable there is a relax-
ation on this point in some parts of this country. The provisions of that statute on
this point have been adopted in the N. Y. Revised Statutes, i. 772, sec. 5. By the
1 Mordecai v. Dawkins, 9 Rich. 262; 329; Great Falls Bank v. Farmington, 41
Unger v. Boas, 13 Penn. St. 601; Kendall N. H. 32, 40; Norris v. Langley, 19 N. H.
v. Robertson, 12 Cush. 156; Sylvester v. 423; Converse v. Foster, 32 Vt. 828;
Swan, 5 Allen, 134. The tendency to- Meadow v. Bird, 22 Ga. 246; Thorne v.
ward the repeal of usury laws, mentioned Yontz, 4 Cal. 321; Johnson v. Meeker, 1
in note (a), continues, and the subject is Wis. 436; Cobb v. Doyle, 7 R. I. 550;
becoming less important. See Flight v. Hall v. Ayling, 16 Q. B. 423, 431; Fitch
Reed, 1 Hurlst. & C. 703, 715. As to v. Jones, 5 El. & Bl. 238. Neither will
wagers, see Fitch v. Jones, 5 El. & Bl. the fact that it was made on Sunday.
238.
State Capital Bank v. Thompson, 42 N.
H. 369.
If the note is not declared void by
statute, illegality in the consideration will
not avoid it in the hands of a bona fide
holder for value without notice of the
consideration. Cazet v. Field, 9 Gray,
As to the validity of negotiable paper
issued by corporations, see the note on
ultra vires, ante, ii.; 5 Am. Law Rev. 282.
[98]
LECT. XLIV.]
* 81
OF PERSONAL PROPERTY.
•
same rule would, of course, apply to every case in which the
contract is by statute declared absolutely void. (b)
As between the original parties to negotiable paper, these pro-
visions in favor of the bona fide assignee do not apply, and the
consideration of a bill, note, or check may be inquired into. It
may be inquired into between the maker and payee, and between
the indorser and indorsee; the consideration of the indorsement
also may be shown, for the latter are, in this view, treated as
original parties. (c) The rule equally applies when the indorsee
took the paper with notice of an illegal, or of the want of any
consideration, or of any circumstances which would have avoided
the note in the hands of the indorser; (d) or when taken
not in the ordinary course of * business, or after it was due, 81
or under circumstances which ought to have led to an in-
quiry. (a) It was admitted, in Bay v. Coddington, (b)¹ that
1
*
statute of 7 Wm. IV., 1 Vict. 80, and 2 Vict. 37, bills and notes are not affected by
usury laws, if payable at or within twelve months, and not secured by mortgage, and
the interest not to be above five per cent, unless otherwise agreed.
(b) Story on Bills, [§ 189.] Though a note be valid between the original parties,
yet the indorse [e] cannot sue the maker, if the indorsement was on an usurious con-
sideration. Gaither v. F. & M. Bank, 1 Peters, 37. But in New York, if the note
be good in its inception, yet if the payee transfer it at a discount exceeding the legal
rate of interest, it is regarded as a valid sale. Jones v. Hake, 2 Johns. Cases, 60;
Wilkie v. Roosevelt, 3 id. 66; Munn v. Commission Co., 15 Johns. 49.
•
(c) De Bras v. Forbes, 1 Esp. 117; Ashhurst, J., 2 T. R. 71; Herrick v.
Carman, 10 Johns. 224; Hill v. Ely, 5 Serg. & R. 363; Johnson v. Martinus, 4 Halst.
144; Hill v. Buckminster, 5 Pick. 391; Lawrence v. Stonington Bank, 6 Conn. 521.
In this last case it was held, that if the holder received the bill without consideration,
as where successive indorsees were merely agents of the drawer, for the collection
and transmission of the money, he is said to be in privity with the first holder, and
is accountable for the proceeds of the bill.
(d) Steers v. Lashley, 6 T. R. 61; Wiffen v. Roberts, 1 Esp. 261; Perkins v.
Challis, 1 N. H. 254.
(a) Brown v. Davis, 3 T. R. 80; Down v. Halling, 4 B. & C. 330; Ayer v. Hutch-
ins, 4 Mass. 370; Thompson v. Hale, 6 Pick. 259; Littell v. Marshall, 1 Rob.
(La.) 51.
(b) 5 Johns. Ch. 56; s. c. 20 Johns. 637; Swift v. Tyson, 16 Peters, 15. The
Supreme Court of Tennessee, in Kimbro v. Lytle, 10 Yerger, 428, says that this
1 The doctrine of Swift v. Tyson, stated
in note (b), is followed, and it is thought
that a party taking a negotiable instru-
ment as collateral security for a preëxist-
ing debt is a holder for value to the extent
necessary to secure him, in McCarty v.
Roots, 21 How. 432, 439; Bridgeport City
Bank v. Welch, 29 Conn. 475; Osgood v.
Thompson Bank, 30 Conn. 27; Roberts v.
Hall, 37 Conn. 205, 211; Naglee v. Lyman,
14 Cal. 450; Stoddard v. Kimball, 6 Cush.
469; Fisher v. Fisher, 98 Mass. 303; Al-
laire v. Hartshorne, 1 Zabr. 665; Bank of
the Republic v. Carrington, 5 R. I. 515;
[99]
* 81
[PART V.
OF PERSONAL PROPERTY.
negotiable paper could be assigned or transferred by an agent,
or any other person, fraudulently, so as to bind the true owner,
as against the holder, if it was taken by him in the usual course
of trade, and for a fair and valuable consideration, without notice
of the fraud. But it was held, that if the paper be not nego-
tiated in the usual course of business, nor in payment of any
antecedent debt, nor for cash, or property advanced upon it, nor
case has carried the restrictions upon the negotiability of commercial paper to where
the Tennessee court is willing to carry it, and where it is disposed to leave it. In
Wormley v. Lowry, 1 Humph. (Tenn.) 470, it was held, that if a note be assigned
for a preëxisting debt, it is not negotiated in the due course of trade, and a failure
of consideration may be shown. The case of Bay v. Coddington was reconsidered,
and its principles acknowledged and asserted, in Stalker v. M'Donald, in the New
York Court of Errors, in 6 Hill, 93. But it was declared that it was not sufficient
to protect the note in the hands of the purchaser, that he received it merely as a
security, or nominally in payment of a preëxisting debt, unless he had given money
or some new consideration for it, or given up a security which he held for the payment of
the antecedent deht. If he obtains the note as a mere security or payment of an ante-
cedent debt, without parting with any thing of value, in that case he is not entitled to
hold the property against the prior equitable owner. Mr. Chancellor Walworth
gave an elaborate discussion to this point; and he held that the decision of the Su-
preme Court of the United States, as delivered by Mr. Justice Story, in Swift v.
Tyson, 16 Peters, 1, was not correct in the opinion that a preëxisting debt was of
itself, and without any other circumstances, a sufficient consideration to entitle the
bona fide holder, without notice, to recover on the note, when it might not, as between
the original parties, be valid. Mr. Justice Story, on Promissory Notes, p. 215, note
1 repeats and sustains the decision in Swift v. Tyson; and I am inclined to concur
in that decision, as the plainer and better doctrine. The decision in Williams v.
Little, 11 N. H. 66, is to the same effect, and Ch. J. Parker sustained the decision
with force.
Cobb v. Doyle, 7 R. I. 550; Atkinson v.
Brooks, 26 Vt. 574; Manning v. McClure,
36 Ill. 490; Valette v. Mason, 1 Smith
(Ind.), 89, 1 Carter, 288; Bank of Charles-
ton v. Chambers, 11 Rich. (S. C.) 657;
Boatman's Sav. Inst. v. Holland, 38 Mo.
49; Outhwaite v. Porter, 13 Mich. 533. See
Brown v. Leavitt, 31 N. Y. 113; Park
Bank v. Watson, 42 N. Y. 490; Chrysler
v. Renois, 43 N. Y. 209; Goodman v. Si-
monds, 20 How. 343, 371; Cecil Bank v.
Heald, 25 Md. 562.
But see Fenouille v. Hamilton, 35 Ala.
319; Lee v. Smead, 1 Met. (Ky.) 628;
(but compare May v. Quimby, 3 Bush,
96;) Bertrand v. Barkman, 13 Ark. 150;
Bramhall v. Beckett, 31 Me. 205; Nutter
v. Stover, 48 Me. 163; Ryan v. Chew, 13
Iowa, 589; Roxborough v. Messick, 6
Ohio St. 448; King v. Doolittle, 1 Head,
77; Prentice v. Zane, 2 Gratt. 262; (com-
pare Davis v. Miller, 14 Gratt. 1, 15;)
Jenkins v. Schaub, 14 Wis. 1.
But if the party receiving the bill as
security is guilty of laches when it matures,
and omits duly to present it and give
notice of its dishonor, the bill, if not paid,
will be treated as money in his hands as
between him and the person from whom
he received it. Peacock v. Purcell, 14
C. B. N. s. 728; Jennison v. Parker, 7
Mich. 355; Darnall v. Morehouse, 45 N. Y.
64, 69. And see, further, Lamberton v.
Windom, 12 Minn. 232; post, 83 n. (a).
[100]
LECT. XLIV.]
82
OF PERSONAL PROPERTY.
for any debt created, or responsibility incurred, upon the credit
of the note, but was taken from the agent of the owner of the
note after he had stopped payment, and as security against con-
tingent responsibilities previously incurred, the rights of the
true owner were not barred. Such a case did not come within
the reason or necessity of the rule which protects the purchaser
of paper fraudulently assigned, because it was not a case in the
course of trade, nor was credit given, or responsibility assumed,
on the strength of the paper. In any case in which the indorsee
takes the paper under circumstances which might reasonably put
the holder upon inquiry, and create suspicions that it was not
good, he takes it at his peril. The rule is usually applied to the
case of notes overdue, but the principle is of general applica-
tion. (c) In Grill v. Cubitt, (d) the Court of K. B. made a strong
application of the principle, and held, that if an indorsee takes a
bill heedlessly, and without due caution, and under circum-
stances which ought to have excited the suspicions * of a
* 82
prudent and careful man, the maker or acceptor may be let
into his defence. It was deemed material for the interests of
trade, that a person should be deemed to take negotiable paper
at his peril, if he takes it from a stranger without due inquiry
how he came by the bill. He is bound to exercise a reasonable
caution, which prudence would dictate in such a case; and it is
a question of fact for a jury, whether the owner of the lost or
stolen bill had used due diligence in apprising the public of the
loss, and whether the purchaser of the paper had, under the cir-
cumstances of the case, exercised a reasonable discretion, and
acted with good faith and sufficient caution in the receipt of the
bill. The doctrine of Lord Kenyon, in Lawson v. Weston, (a)
that the bona fide purchaser of a lost bill was at all events to
recover, is expressly overruled. This new doctrine, imposing
upon the owner due diligence in giving to the public notice of
the loss, and upon the purchaser of the bill due caution and in-
quiry, is supposed to be calculated to increase the circulation and
(2) Ayer v. Hutchins, 4 Mass. 370; Napier v. Elam, 6 Yerger (Tenn.), 108; Hunt
v. Sandford, ib. 387.
(d) 3 B. & C. 466. See also, to the same point, Beckwith v. Corrall, 2 Carr. & P.
261; Snow v. Peacock, 3 Bing. 406; Strange v. Wigney, 6 id. 677; Slater v. West,
1 Danson & L. 15; Easley v. Crockford, 10 Bing. 243; Nicholson v. Patton, 13 La.
213, 216. In this last case the court said, they took the case of Gill v. Cubitt for
their guide.
(a) 4 Esp. 56.
[101]
* 82 ·
[PART V.
OF PERSONAL PROPERTY.
security of negotiable paper, and to render it more difficult for
thieves and robbers to pass it off. (b)¹
4. Of the Acceptance. There is no precise time fixed by law in
which bills payable at sight, or a certain number of days after
sight, must be presented to the drawee for acceptance, though
there must not be any unreasonable delay, for that might dis-
charge the drawer and indorser. (c) A bill payable on a day
certain after date, or on demand, need not be presented for ac-
(b) In Backhouse v. Harrison, 3 Nev. & M. 188, the case required the indorser,
who lost his bill by accident, to show in his defence gross negligence, imputable to the
holder as evidence of mala fides, in order to impeach his title. The same principle
was followed in Crook v. Jadis, 3 Nev. & M. 257; Goodman v. Harvey, 6 Nev. & M.
372; so that the case of Gill v. Cubitt seems to be somewhat weakened, if not de-
stroyed, as an authority. Mr. Justice Story (Story on Bills, 216) considers the doc-
trine in Gill' v. Cubitt as absolutely overruled and abandoned; and he cites, in
support of his conclusion, Goodman v. Harvey, ub sup. ; Uther v. Rich, 10 Ad. & El.
784; Stephens v. Foster, 1 Cr. M. & R. 849.
If a check be so filled up, through ignorance or carelessness, as to enable the
holder conveniently to insert three hundred before fifty, and the banker is thereby
misled to pay the inserted sum, the loss must fall on the drawer of it, and not on the
banker. Pothier, Traité du Con. de Change, part 1, c. 4, sec. 99; Young v. Grote,
4 Bing. 253. With respect to bank-bills absolutely destroyed by accident, the banker,
on due proof thereof, must pay the owner who held them when destroyed. But if
only lost, by theft, &c., and are in existence, the bank must pay the bona fide holder.
Shaw, C. J., in Whiton v. Old Colony Ins. Co., 2 Met. 6.
(c) It is settled by the Supreme Court of the United States, that the payee or
indorsee of a bill of exchange may maintain an action of debt against the acceptor,
if the bill be expressed for value received. Raborg v. Peyton, 2 Wheat. 385.
•
1 The doctrine of Gill v. Cubitt is denied
in the later cases, as is intimated in note
(b). Goodman v. Simonds, 20 How. 343,
369; Murray v. Lardner, 2 Wall. 110;
Belmont Branch Bank v. Hoge, 35 N. Y.
65, 68; Welch v. Sage, 47 N. Y. 143, 147;
Phelan v. Moss, 67 Penn. St. 59; Spooner
v. Holmes, 102 Mass. 503, 508; Bank of
Bengal v. Fagan, 7 Moore P. C. 61, 72;
Carlon v. Ireland, 5 El. & Bl. 765; Raphael
v. Bank of England, 17 C. B. 161.
In some cases it has been left for the
jury to say whether the facts were not
sufficient to put the purchaser on inquiry.
Gould v. Stevens, 43 Vt. 125. See Com-
mercial & Farmers' N. Bank v. First N.
Bank, 30 Md. 11, 26.
Young v. Grote, sup., n. (b), seems to be
doubted in Worrall v. Gheen, 39 Penn. St.
388. See Foster v. Mackinnon, 38 L. J.
N. S. C. P. 310, 312; Gumm v. Tyrie, 4
Best & S. 680, 713; Wade v. Wittington,
1 Allen, 561. But the principle on which
it was decided is approved, with a reserva-
tion as to whether the conclusion in point
of fact was well warranted, in Orr v.
Union Bank of Scotland, 1 Macq. 513;
29 Eng. L. & Eq. 1. See also Ingham v.
Primrose, 7 C. B. N. s. 82, 87; Ex parte
Swan, ib. 400, 445; Bank of Ireland v.
Trustees of Evans' Charities, 5 H. L. C.
389, 410, 413; Garrard v. Haddan, 67
Penn St. 82 (explaining Worrall v. Gheen,
sup., and criticising Wade v. Wittington,
sup.); Ives v. Farmers' Bank, 2 Allen,
236, 241. See Belknap v. National Bank
of N. A. 100 Mass. 376.
[102]
LECT. XLIV.]
* 83
OF PERSONAL PROPERTY.
ceptance before the day of payment or demand; and if not pre-
sented previously for acceptance, the right to require acceptance
becomes merged in, or, as Pardessus says, confounded with, the
right to demand payment; but if presented before it becomes
due, and acceptance be refused, it is dishonored, and notice must
then be given forthwith to the parties whom it is intended to
charge. (d) There is a distinction made in the cases between
the owner of the bill and his agent on this point. Though the
owner is not bound to present the bill payable at a day certain,
for acceptance before the day, the agent employed to collect the
bill, or to get it accepted and paid, or accepted, must act with
due diligence to have the bill accepted as well as paid. He has
not the discretion and latitude of time given to the owner, and for
any unreasonable delay on his part he would be held responsible
for all damages which the owner may have sustained by reason
thereof. (e) A bill payable at sight, or so many days after
sight, * as well as a bill payable on demand, must be pre- *83
sented in a reasonable time, or the holder will have to bear
the loss proceeding from his default. (a) ¹
(d) Bank of Washington v. Triplett, 1 Peters, 25; Townsley v. Sumrall, 2 id.
170; Pardessus, Cours de Droit Com. ii. secs. 358, 359; Walworth, Ch., in Allen v.
Suydam, 20 Wend. 323, 324; Story on Bills, 252; [post, 95; Smith v. Roach, 7
B. Mon. 17; Walker v. Stetson, 19 Ohio St. 400.]
(e) Allen v. Suydam, 17 Wend. 368, s. c. 20 id. 321; Van Wart v. Wooley, 5 Dowl.
& Ry. 374; 3 B. & C. 439; Chitty on Bills, 300; Pothier, Traité du Contrat de Change,
n. 128; The Bank of Scotland v. Hamilton, Bell's Comm. i. 409, note.
(a) Marius on Bills, 19; Smith v. Wilson, Andrews, 187; Chamberlyn v. Dela-
rive, 2 Wils. 353; Muilman v. D'Eguino, 2 H. Bl. 565; Aymar v. Beers, 7 Cowen,
705. If the holder of a draft or bill omits due diligence, without just cause, in ob-
taining payment, or in giving notice of non-payment, he makes the bill his own.
Tobey v. Barber, 5 Johns. 68; Jones v. Savage, 6 Wend. 658; Dayton v. Trull, 23
id. 345; Fry v. Hill, 7 Taunt. 397; Wallace v. Agry, 4 Mason, 336. In this last
case the bill was drawn in Havana, upon London, at sixty days' sight, and it was
held that it might be sent for sale to the United States, according to the course of
1 The rule is not changed by the con-
tinued solvency of the drawers and the
want of proof of actual loss to them by
laches. Ramchurn Mullick v. Luck-
meechund Radakissen, 9 Moore P. C. 46,
68; 28 Eng. L. & Eq. 86 (explaining Rob-
inson v. Hawksford, 9 Q. B. 52, on the
ground that the rule as to checks is dif-
ferent. Post, 88, and n. 1). See, gener-
ally, Bank of Van Diemen's Land v. Bank
of Victoria, L. R. 3 P. C. 526. But mere
detention of the bill by the acceptor, or
of a check by the bank drawn upon, for.
an unreasonable time, is not of itself
equivalent to acceptance. Overman v.
Hoboken City Bank, 2 Vroom, 563, affirm-
ing s. c. 1 Vroom, 61. Compare Mer-
chants' National Bank v. National Eagle
Bank, 101 Mass. 281.
•
[103]
* 84 ·
[PART V.
OF PERSONAL PROPERTY.
The acceptance may be by parol or in writing, and is general
or special. (b) Though a bill comes into the hands of a person
with parol acceptance, and he takes it in ignorance of such an
acceptance, he may avail himself of it afterwards. If the ac-
ceptance be special, it binds the acceptor sub modo, and accord-
ing to the acceptance. But any acceptance varying the absolute
terms of the bill, either in the sum, the time, the place, or
*84 the mode of payment, is a * conditional acceptance, which
trade, and need not be sent from Cuba directly to London. But in Camidge v.
Allenby, 6 B. & C. 373, the vendee paid vendor of goods in notes of a country bank,
payable on demand to bearer. The bank, at the time, had stopped payment, but
the fact was unknown to both parties. The vendor had kept the notes for a week,
without circulation or demand of payment, and it was held that he made the notes
his own by this negligence. The French Commercial Code requires a bill, drawn
from the continent or isles of Europe, and payable within the European possessions
of France, to be presented within six months from the date, and in default, the
holder loses all recourse over. Code de Com. liv. 1, tit 8, sec. 11. There is no such
fixed rule in the English law. In Mellish v. Rawdon, 9 Bing. 416, it was held, that
there must be no unreasonable delay in forwarding for acceptance a bill drawn on a
person abroad, and payable at so many days' sight. What would amount to an
unreasonable delay, so as to cast upon the holder the loss arising from the failure of
the drawee before acceptance, would depend upon the circumstances of the case, and
was a question of fact for a jury. See also Story on Bills, [§§ 231, 237.] The
rule is, that an inland bill or check, payable on demand. held by the payee, need not
be presented for payment on the day he receives it. The usual business hours, or
seasonable time of the next day of business, is sufficient. Chitty on Bills, 414,
421; Story on Bills, [§§ 471–473.] If the bill or check has been put in circulation,
each party may perhaps be allowed a day as between him and the party from whom
he receives the check. But see Story on Bills, [§ 472 et seq.], as to the difficult point
as to what is reasonable time to present the bill or check, when it passes through
several hands. It cannot with safety be kept by a succession of persons long in cir-
culation. The general rule is, that the drawee has twenty-four hours to consider
whether he will accept the bill or not. Chitty on Bills, c. 7.
(b) Lumley v. Palmer, Str. 1000; Powell v. Monnier, 1 Atk. 612; Walker v. Lide,
1 Rich. (S. C.) 249. By statute 1 and 2 Geo. IV. c. 78, no acceptance of any
inland bill of exchange is sufficient to charge any person, unless such acceptance be
in writing on the bill; and 'this is the statute law in Georgia; Hotchkiss's Code.
So, by the N. Y. R. S. i. 768, secs. 6, 9, no person within the state is chargeable
as an acceptor on a bill of exchange, unless his acceptance be in writing, signed by
himself, or his lawful agent; and the holder may require the acceptance to be
upon the bill, and a refusal to comply will be a refusal to accept. An acceptance in
writing, if not on the bill, does not bind, except it be in favor of the person who,
on the faith of it, received the bill. (Ib. sec. 7.) So an unconditional promise in
writing to accept the bill, before it be drawn, is an acceptance in favor of the person
who receives the bill on the faith of it, for a valuable consideration. (Ib. sec. 8.)
And every drawee who refuses to return a bill, within twenty-four hours, to the
holder, shall be deemed to have accepted it. (Ib. sec. 11.) See also Bank of Mich-
igan v. Ely, 17 Wend. 508. The statute law of Missouri has followed the provisions
in the N. Y. statute as to acceptance. Revised Statutes of Missouri, 1835, p. 97.
[104]
LECT. XLIV.]
84
OF PERSONAL PROPERTY.
1
the holder is not bound to receive; and if he does not [does] re-
ceive it, the acceptor is not liable for more than he has undertaken.
The doctrine of qualified acceptances as to part of the money is
spoken of in Marius and Molloy; (a) and in the case of Rowe v.
Young, in the House of Lords, it was established to be the true
construction of the contract, and the true rule of the law-mer-
chant, that if a bill be accepted, payable at a particular place,
the holder is bound to make the demand at that place. (b)¹ The
rule is also settled, that a promise to accept, made before the
acceptance of the bill, will amount to an acceptance in favor of
the person to whom the promise was communicated, and who
took the bill on the credit of it. (c) In Coolidge v. Payson, (d)
all the cases were reviewed, and it was held that a letter, written
within a reasonable time before or after the date of the bill,
describing it, and promising to accept of it, is, if shown to the
person who afterwards takes the bill upon the credit of that
letter, a virtual acceptance, and binding upon the person who
makes the promise. The same doctrine was also held by the
Supreme Court of New York, in Goodrich v. Gordon; (e) and it
(a) Marius, 17, 21; Molloy, b. 2, c. 10, sec. 21.
(b) 2 Brod. & B. 165.
(c) Miln v. Prest, 4 Camp. 393. So, a letter of credit, addressed to any person who
should make the advance upon the faith of the letter, is an available promise in favor
of the person making the advance; and it is considered as available if it be a general
letter of credit in favor of any person who makes the advance on the faith of it.
These letters of credit are treated as in the nature of negotiable instruments, and
the party giving such a letter holds himself out to all persons who should advance
money on bills drawn on the same, and upon the faith thereof, as contracting with
them an obligation to accept and pay the bills. Lawrason v. Mason, 3 Cranch, 492;
Boyce v. Edwards, 4 Peters, 121; Adams v. Jones, 12 id. 207; Carnegie v. Morrison,
2 Met. 381; Story on Bills, 538 to 555; 1 Bell's Comm. 371. [In re Agra & Mas-
terman's Bank, L. R. 2 Ch. 391; Lowry v. Adams, 22 Vt. 160, 167; Barney v.
Newcomb, 9 Cush. 46; Exchange Bank of St. Louis v. Rice, 98 Mass. 288, 293; Sav-
annah N. Bank v. Haskins, 101 Mass. 370, 375; Cassel v. Dows, 1 Blatchf. 335;
Barney v. Worthington, 37 N. Y. 112, 115; Union Bank of La. v. Coster, 3 Comst.
203, 214. The letter of credit is an offer to any person who will advance money on
the faith of it. When money is advanced on the faith of the offer there is a binding
contract on sufficient consideration, on the same principle as that on which an offer
of a reward becomes binding. Post, 89, n. 2; 85, n. 1.]
(d) 2 Wheat. 66. See, also, to s. p. 1 Peters, 264, 284, and 4 id. 111, 121; 2 Gal-
lison, 233; Bayard v. Lathy, 2 McL. 462.
(e) 15 Johns. 6; s. P. in Parker v. Greele, 2 Wend. 545; Kendrick v. Campbell,
1 Bailey (S. C.), 522; Carnegie v. Morrison, 2 Met. 381; Read v. Marsh, 5 B. Mon.
10
1 Post, 97, n. 1; 99, n. 2.
[105]
85
[PART V.
OF PERSONAL PROPERTY.
was there decided, that if a person, in writing, authorizes another
to draw a bill of exchange, and stipulates to honor the bill, and
the bill be afterwards drawn, and taken by a third party, on the
credit of that letter, it is tantamount to an acceptance of the bill.
The doctrine rests upon the decision of Lord Mansfield in Pillans
and Rose v. Van Mierop and Hopkins, and in Pierson v. Dun-
lop, (ƒ) where he laid down the broad principle, that a
*85 promise to accept, previous to the existence of the bill,
*
amounted to an acceptance. It is giving credit to the bill,
and which may be done as entirely by a letter written before as
by one written after the date of the bill. A parol promise to
accept a bill already drawn, or thereafter to be drawn, is binding,
if the bill be purchased in consideration of the promise. It is an
original promise, not coming within the objects or the mischiefs
of the statute of frauds; but whether such a valid parol promise
to accept a non-existing bill would, in the view of the law-mer-
chant, amount to an acceptance of the bill when drawn, is a
question not necessarily connected with the validity of the
promise. (a) 1
(ƒ) 3 Burr. 1663; Cowp. 571.
(a) Townsley v. Sumrall, 2 Peters, 170. The former English authorities on this
point are overruled; and in The Bank of Ireland v. Archer, 11 M. & W. 383, the
judgment was, that a promise to accept a bill not yet drawn was not an acceptance,
even though the bill be discounted for the drawer, on the faith of such promise.
The settled American rule is the former one, declared in the time of Lord Mansfield,
and by Mr. Justice Story, in Russell v. Wiggin, 2 Story, 213. Judge Story is of
opinion that the doctrine of the Supreme Court of the United States, in Coolidge v.
Payson, only applies to bills of exchange payable on demand, or at a fixed time
after date, and does not apply to a bill drawn payable at or after sight, for in the
latter case a presentment is indispensable, since the time the bill has to run cannot
otherwise be ascertained. Story on Bills, [§ 249.]
1 Promise to accept. Barnet v. Smith,
10 Fost. (30 N. H.) 256; Stockwell v.
Bramble, 3 Ind. 428; Mason v. Dousay,
35 Ill. 424.
An oral promise to accept a bill not
yet drawn was held void in Plummer v.
Lyman, 49 Me. 229. But see Nelson v.
First Nat. Bank of Chicago, 48 Ill. 36.
Some of the American cases come so
near to the English doctrine, as stated in
note (a), as to hold that the promise to
accept will not be treated as an acceptance
unless it definitely describes the bill to be
drawn; taking a distinction between a
binding promise to accept and an accept-
ance. Cassel v. Dows, 1 Blatchf. 335;
Ulster Co. Bank v. McFarlan, 3 Den. 553.
And it is admitted in England that a
promise to accept contained in a letter of
credit will bind the promisor to persons
who, on the faith of it, discount bills drawn
in pursuance of its terms, at least in
equity, according to the doctrine stated
84, n. (a). Cassel v. Dows, 1 Blatchf. 335.
But a general promise seems to have been
thought to be equivalent to an acceptance
[ 106 ]
LECT. XLIV.]
* 85
OF PERSONAL PROPERTY.
Every act giving credit to the bill amounts to an acceptance. (b)
There is no doubt that an acceptance, once fairly and fully made
(b) Powell v. Monnier, 1 Atk. 611; Wynne v. Raikes, 5 East, 514; Fairlee v. Her
ring, 3 Bing. 625.
in Bissell v. Lewis, 4 Mich. 450, 464; Nel-
son v. First National Bank of Chicago,
48 Ill. 36, 39; Naglee v. Lyman, 14 Cal.
450; Beach v. State Bank, 2 Cart. (Ind.)
488. Those American cases which hold
that a promise to accept a bill not yet
drawn may operate as an acceptance,
seem to confine the rule to those cases
where the bill is taken on the faith of the
promise. Nelson v. First N. Bank of
Chicago, 48 Ill. 36, 38; Steman v. Harri-
son, 42 Penn. St. 49; Burns v. Rowland,
40 Barb.368; Crowell v. Van Bibber, 18 La.
An. 637; Lewis v. Kramer, 3 Md. 265,
289; Bissell v. Lewis, 4 Mich. 450, 456.
In Exchange Bank of St. Louis v. Rice,
98 Mass. 288, it was held that a promise
to accept an existing bill, contained in a
letter from the drawee to the drawer
written after the holder took the bill, did
not make the drawee liable as acceptor,
as the bill was not taken on the faith of
the promise. The rule of liability was
thought to be analogous to that concern-
ing the signer of a letter of credit; ante,
84, n. (c); and it seems to be doubted
whether the decision in Powell v. Monnier,
85, n. (b), went as far as has been under-
stood in the later English cases. Overman
v. Hoboken City Bank, 1 Vroom, 61, 68;
Howland v. Carson, 15 Penn. St. 453; Ste-
man v. Harrison, 42 Penn. St. 49. Contra,
Read v. Marsh, 5 B. Mon. 8; Jones v.
Council Bluffs Branch Bank, 34 Ill. 313.
Effect of Acceptance or Payment.—It
has been held that the estoppel of the
acceptor to deny the drawer's signature,
mentioned post, 86, n. (b), and 114, stands
on somewhat similar ground, and that
when the holder took the bill before the
acceptance, and did not appear to have
altered his position on the faith of it, the
estoppel did not exist. McKleroy v.
Southern Bank of Kentucky, 14 La. An.
458. See Irving Bank v. Wetherald, post,
88, n. 1. Phillips v. Im Thurn, L. R. 1
C. P. 463; 18 C. B. N. s. 694; M'Neil v.
Hill, 1 Woolw. 96; Bartlett v. Tucker, 104
Mass. 336, 342. It may be doubted how
far such decisions are consistent with other
cases, where, in order to found an estoppel,
it has been presumed that the holder of
an order for barley, for instance, who had
paid for it before acceptance, was induced
by the acceptance to refrain from taking
any steps. Knights v. Wiffen, L. R. 5 Q. B
660. (But this case has been doubted in
America. See Langdell on Sales, 1028,
Index, Estoppel, 39, and ante, ii. 492, n. 1
(d). It would seem that at least as strict
a rule of liability should be applied to
negotiable instruments, which have been
treated more like writings under seal than
ordinary parol contracts. Oddie v. Nat.
City Bank of New York, 45 N. Y. 735, 742.
However this may be, when the holder has
himself done acts which naturally put the
drawee off his guard and induce him to
accept or pay, such as indorsing a check
payable to the holder's order, which he re-
ceived without inquiry from a stranger,
and which turns out to be forged, it is sup-
posed that the acceptance would not be
binding, and it has been held that pay-
ment is not, and that the money can be
recovered back. National Bank of North
America v. Bangs, 106 Mass. 441.
It may be mentioned further in this
connection that acceptance also admits
the competency of the payee to indorse
at the time of the acceptance. Byles on
B. Ch. 13, ad finem; post, 114; Smith v.
Marsack, 6 C. B. 486, 503; Hallifax v,
Lyle, 3 Exch. 446, 453; Hardy v. Waters,
38 Me. 450. See Ashpitel v. Bryan, 3
Best & S. 474; 5 id. 723.
When the bill purports to be drawn
payable to the drawer's own order and
[107]
* 85
[PART V.
OF PERSONAL PROPERTY.
and consummated, cannot be revoked; but to render it binding
the acceptance must be a complete act, and an absolute assent of
indorsed by him before acceptance, it has
been held that the acceptor could deny
that indorsement, as he could any other,
under ordinary circumstances. Williams
v. Drexel, 14 Md. 566. For it is to be
remembered that he is bound to ascertain
that the person to whom he makes pay-
ment is the genuine payee or is authorized
by him to receive it, unless the instrument
is drawn payable to bearer or indorsed in
blank by a genuine indorsement. Graves
v. American Exch. Bank, 17 N. Y. 205;
Dodge v. National Exchange Bank, 20
Ohio St. 234; Vanbibber v. Bank of
Louisiana, 14 La. An. 481; Robarts v.
Tucker, 16 Q. B. 560, 579. See Shaffer
v. McKee, 19 Ohio St. 526; Dodge v. Na-
tional Exch. Bank, 20 id. 234. But when
the draft and indorsement were made in
the name of a dead person by agreements
between the indorsee and the acceptor,
and the latter received value for his ac-
ceptance, he was held to be estopped by
his agreement, in a suit by the first in-
dorsee. Ashpitel v. Bryan, 3 Best & S.
474; 5 id. 723.
The acceptor is held to be at liberty to
show a forgery in the body of the paper,
and if he has paid the forged amount may
recover it back from the person to whom
he has paid it, provided he has been guilty
of no negligence in failing to detect the
forgery, and has given notice of the forgery
as soon as discovered. Bank of Commerce
v. Union Bank, 3 Comst. 230; National
Park Bank v. Ninth National Bank, 55
Barb. 87; Canal Bank v. Bank of Albany,
1 Hill, 287, 293. See Worrall v. Gheen,
39 Penn. St. 388; Belknap v. National
Bank of N. A., 100 Mass. 376; Ellis v.
Ohio L. Ins. & T. Co., 4 Ohio St. 628, 657;
Shaffer v. McKee, 19 Ohio St. 526 (in this
case it does not appear when notice was
given that the payee's indorsement was
forged). There is nothing inconsistent
with this doctrine in Hall v. Fuller, 5 B.
& C. 750. But as to the time within which
notice must be given, compare with the
more liberal rule stated above, and also
applied in McKleroy v. Southern Bank
of Kentucky, 14 La. An. 458, the English
doctrine that the holder is entitled to know
whether the bill is honored or dishonored
on the day it falls due, provided he would
sustain any prejudice from not knowing,
which may be the case, perhaps, if there
are prior parties entitled to notice. Cocks
v. Masterman, 9 B. & C. 902; Pollard v.
Ogden, 2 El. & Bl. 459, 463, 465; Mather v.
Lord Maidstone, 18 C. B. 273, infra; Irving
Bank v. Wetherald, 36 N. Y. 335; Ellis v.
Ohio L. Ins. & T. Co., 4 Ohio St. 628, 655
It would seem from the principle of
Young v. Grote, and other cases cited,
ante, 82, n. (b) and 1, that when the forgery
is made possible by the drawer's negli-
gence, inasmuch as a payment of the
forged amount will be a credit to the ac-
ceptor as against him, the acceptor should
not be allowed to set up the forgery in a
suit by an innocent indorsee. This reason
has been applied with this result in the
case of the drawer putting a bill into cir-
culation with a forged indorsement of the
payee's name. Hortsman v. Henshaw, 11
How. 177; Burgess v. Northern Bank of
Kentucky, 4 Bush, 600. See Coggill v.
American Exch. Bank, 1 Comst. 113, 118.
See also Orr v. Union Bank of Scotland, 1
Macq. 513, 522; 29 Eng. L. & Eq. 1, 10.
(See, further, post, 115, n. 1.)
As to the estoppel of an alleged ac-
ceptor to deny his own signature after
having recognized it, it has been held that
one who has paid a forged acceptance of
his own cannot recover back the money;
and if, instead of paying money, he takes
the bill, examines it, and gives another
acceptance in lieu of it, and does not dis-
cover the forgery for a month afterwards,
he cannot escape liability on the renewed
acceptance. Mather v. Lord Maidstone,
18 C. B. 273. See Bartlett v. Tucker, 104
Mass. 336; ante, 76, n. 1. A drawee who
[108]
LECT. XLIV.]
* 86
OF PERSONAL PROPERTY.
*
the mind; for though the drawee writes his name on the bill, yet,
if before he has parted with the bill, or communicated the fact, he
changes his mind, and erases his acceptance, he is not bound. (c)
The acceptance may be impliedly as well as expressly given. It
may be inferred from the act of the drawee, in keeping the bill
a great length of time, contrary to his usual mode of dealing;
for this is giving credit to the bill, and inducing the holder to
consider it accepted. (d) If the bill be accepted in a quali-
fied degree only, and not absolutely, according to the tenor *86
of it, the holder may assent to it, and it will be a good
acceptance, pro tanto; or he may insist upon an absolute accept-
ance, and for the want of it protest the bill. It is in the dis-
cretion of the holder whether or no he will take any acceptance
varying from the terms of the bill. This doctrine was settled in
England upwards of a century ago, and in opposition to the dis-
tinguished argument of Sir John Strange, and it has continued
unshaken to this day. (a)
(c) Cox v. Troy, 5 B. & Ald. 474. Emerigon, i. 45, cites Dupuy de la Serra, art.
des Lettres de Change, c. 10, as laying down the maxim, that while the acceptor is
master of his signature, and before he has parted with the bill, he can cancel his
acceptance. This doctrine of La Serra is cited with particular approbation by Pothier,
Traité du Con. de Change, n. 44, and his opinion was mentioned with great respect
by the K. B. in the case last referred to; and there is now entire harmony on the
point in the jurisprudence of the two nations. [Bank of Van Diemen's Land v.
Bank of Victoria, L. R. 3 P. C. 526.]
(d) Harvey v. Martin, 1 Camp. 425, note; Story on Bills, [§ 246; ante, 83, n. 1.]
(a) Wegersloffe v. Keene, 1 Str. 214; Smith v. Abbott, 2 id. 1152.
pays on the faith of forged bills of lading
attached to a draft in the hands of an
innocent holder cannot recover as having
paid under a mistake of fact. Hoffman v.
Bank of Milwaukee, 12 Wall.181; Leather
v. Simpson, L. R. 11 Eq. 398. This is on
the ground that there is no representation
that the bill of lading is genuine.
As to the provisional statements of ac-
count or payments between banks in a
clearing house, which may remain sub-
ject to revocation up to a certain moment,
see Warwick v. Rogers, 5 Man. & Gr. 340;
Pollard v. Bank of England, L. R. 6 Q. B.
623; Merchants' National Bank v. Na-
tional Eagle Bank, 101 Mass. 281. The
arrangement may be made that up to a
certain hour of the day the banks shall
not alter their position by paying the
money collected over to their customers,
and in that case, if the bank from which
the money was collected has paid by mis-
take, it may demand it back of the col-
lecting bank within that time, without
being encountered by the principle which
has been laid down, that where money
has been paid under a mistake of fact to
an agent, and he has paid his principal or
done something equivalent to payment to
him, the recourse of the party who has
paid the money is against the principal
only. L. R. 6 Q. B. 630. A somewhat
different arrangement is shown in Over-
man v. Hoboken City Bank, 2 Vroom,
563; ante, 83, n. 1.
[109]
86
[PART V.
OF PERSONAL PROPERTY.
The acceptor of a bill is the principal debtor, and the drawer
the surety, and nothing will discharge the acceptor but payment
or a release. He is bound to an innocent indorsee, though he
accepted without consideration, and for the sole accommodation
of the drawer. (b)¹ Accommodation paper is now governed by,
(b) A plea that the acceptance was without consideration, held bad on demurrer.
Lowe v. Chifney, 1 Bing. N. C. 267. An accommodation bill or note is a mercantile
term, and means a bill on which the drawer has no right to sue the acceptor of such
a bill. It is a note without consideration, and for which the payee is to provide when
due, and not to call on the maker for payment. King v. Phillips, 12 M. & W. 705;
Thompson v. Clubley, 1 M. & W. 212. The acceptor of a forged bill is bound by
his acceptance, for that act precludes him from afterwards disputing the bill, as he
is bound to know, and is presumed to know, his drawer's hand. Price v. Neal, 3
Burr. 1354; Buller, J., 1 T. R. 655; Lẹvy v. Bank U. S., 1 Binney, 27; Canal Bank
v. Bank of Albany, 1 Hill, 287; Robinson v. Reynolds, 2 Ad. & El. n. s. 196. So,
if a bank pay a forged check, the holder being innocent, the bank must bear the
loss, on the principle that the bank is bound to know the hand of its own customers,
and a want of due diligence and caution exists. Levy v. Bank U. S., 1 Binney, 27;
Smith v. Mercer, 6 Taunt. 76; Bank of St. Albans v. F. & M. Bank, 10 Vt. 141.
The courts consider the case of Price v. Neal as decisive. So payment to a bank
innocently in its own forged paper binds the bank. It is bound to know its own
1 Ante, 78, n. 2; post, 91, n. 1; Cro-
nise v. Kellogg, 20 Ill. 11; Diversy v.
Loeb, 22 Ill. 393; Farmers & Mechanics'
Bank v. Rathbone, 26 Vt. 19; Howard
Banking Co. v. Welchman, 6 Bosw. 280.
As to the maker of an accommodation
note, Manley v. Boycot, 2 El. & Bl. 46,
approving Fentum v. Pocock, inf. n. (c);
Hansbrough v. Gray, 3 Gratt. 356; Yates
v. Donaldson, 5 Md. 389. But see Adle
v. Metoyer, 1 La. An. 254; Parks v. In-
gram, 2 Fost. (22 N. H.) 283.
The word "release in the text must
not be taken in the sense of a technical
release under seal. The obligation on a
bill of exchange or promissory note may
be discharged by express words unac-
companied by satisfaction or by any
solemn instrument. There is an excep-
tion introduced by the law-merchant to
the rule that, after breach, a simple con-
tract can only be discharged by deed or
upon sufficient consideration. Foster v.
Dawber, 6 Exch. 839, 851; post, 114.
See Dobson v. Espie, 2 Hurlst. & N. 79.
It is perhaps a general doctrine that
payment by the drawer is no plea to an
Jones v.
action against the acceptor.
Broadhurst, 9 C. B. 173; Randall v. Moon,
12 C. B. 261; Agra & Masterman's Bank
v. Leighton, L. R. 2 Ex. 56. See Howard
Banking Co. v. Welchman, 6 Bosw. 280.
But see Cook v. Lister, 13 C. B. N. s. 543,
591, 594; ante, ii. 616, 617. And as to the
right of the drawer to put the bill into cir-
culation again, Gardner v. Maynard, 7 Al-
len, 456. If the acceptance is for the
accommodation of the drawer, and the
holder has notice of that fact when he re-
ceives the bill, payment by the drawer is a
complete discharge of the bill, and it may
be so even if the holder has not notice.
Byles on B. ch. 15; 9th ed. 215; Cook v.
Lister, 13 C. B. N. s. 543; Lazarus v.
Cowie, 3 Q. B. 459. But see Howard
Banking Co. v. Welchman, 6 Bosw. 280.
Discounting a bill is not paying it. Atten-
borough v. Mackenzie, 25 L. J. N. s. Ex.
244; 36 Eng. L. & Eq. 562. But see Beebe
v. Real Est. Bank, 4 Pike, (Ark.) 546.
As to some of the various questions
treated in note (b), see 85, n. 1; post, 88,
n. 2.
[110]
LECT. XLIV.]
86
OF PERSONAL PROPERTY.
the same rules as other paper. This is the latest and the best
doctrine, both in England and in this country. (c) These are the
strict obligations of the acceptor in relation to the other parties
paper. U. S. Bank v. Bank of Georgia, 10 Wheat. 333. On the other hand, the
general rule is, that payment of a debt in a forged note, both parties being innocent,
is no payment, and the same rule applies if a forged note be discounted. Markle v.
Hatfield, 2 Johns. 455; Young v. Adams, 6 Mass. 182; Eagle Bank v. Smith, 5 Conn,
71; Jones v. Ryde, 5 Taunt. 488; United States Bank v. Bank of Georgia, 10 Wheat.
333; Canal Bank v. Bank of Albany, 1 Hill (N. Y.), 287. In this last case the plain-
tiffs paid a draft, when the name of the payee or first indorser was forged, and the
defendants were held bound to refund, as they had no title to the instrument or money
obtained under it. None but the payee can assert any title to a negotiable bill or note
without his indorsement, but the loser cannot recover back, unless he uses diligence
to detect the forgery, and give notice, and there be no unreasonable delay after the
discovery of the forgery. Gloucester Bank v. Salem Bank, 17 Mass. 33; Pope v.
Nance, Minor (Ala.), 299; Canal Bank v. Bank of Albany, sup. Nor can he recover,
if he agrees at the time of the bargain and sale to receive certain notes, drawn and
indorsed by third persons in payment, for he took the risk. Ellis v. Wild, 6 Mass.
321. It is held in one case (Ontario Bank v. Lightbody, 13 Wend. 101), that pay-
ment of a debt in bills of an insolvent bank, both parties being ignorant of the fact,
is no payment. See, also, Wainright v. Webster, 11 Vt. 576; Gilman v. Peck, ib,
516; Fogg v. Sawyer, 9 Ò. H. 365; Frontier Bank v. Morse, 22 Me. 88, to s. p. But
there are decisions in other cases (Lowrey v. Murrell, 2 Porter (Ala.), 280; Scruggs v.
Gass, 8 Yerg. 175) directly to the contrary, and the point remains unsettled in our
American law. In Bayard v. Shunk, 1 Watts & S. 92, the decision agrees with those
in the two last cases; and Chief Justice Gibson gives a strong and vigorous opinion,
that a payment (not in forged notes, but in current bank-notes) discharges the debt,
though the notes were of no value, as the bank had previously failed, of which both
parties were ignorant. Mr. Justice Story (Story on Bills [§ 225, n.]; Story on Promis-
sory Notes, 477) says, that this disputed point resolves itself more into a question of
intent than of law, and that is, whether, taking all the circumstances together, the
bill was taken as absolute payment by the holder, at his own risk, or only as con-
ditional payment, he using due diligence to demand and collect it. And he concludes
that the weight of reasoning and authority are in favor of the payment in such cases
heing considered as null. Story on Promissory Notes, 125, 477, 641.
(c) Fentum v. Pocock, 5 Taunt. 192; The Governor and Company of the Bank
of Ireland v. Beresford, 6 Dow, 234; Bank of Montgomery County v. Walker, 9
Serg. & R. 229; Murray v. Judah, 6 Cowen, 484; Clopper v. The Union Bank of
Maryland, 7 Harr. & J. 92; Church v. Barlow, 9 Pick. 547; Grant v. Ellicott, 7 Wend.
227; Marr v. Johnson, 9 Yerg. 1; Wilde, J., in Comm. Bank v. Cunningham, 24 Pick.
274. Indorsers for the accommodation of the maker of a note do not stand in the rela-
tion of cosureties to each other, so as to create between them a liability to contri-
bution, though they may engage between themselves for contribution.
Aiken v.
Barkley, 2 Speer (S. C.), 747. It is also settled that the drawer is not entitled to
notice of non-payment by the acceptor, if the bill was accepted merely for his accom-
modation. Story on Bills, [§§ 310, 311, 312]. But as the making of accommodation
indorsements is out of the scope of the partnership business in a mercantile house, they
are not binding upon it, unless done with the express or implied assent of all the
members of the firm, except where the paper comes into the hands of a bona fide
holder. Austin v. Vandermark, 4 Hill (N. Y.), 259.
[111]
# 87
[PART V.
OF PERSONAL PROPERTY.
to the bill, and they do not apply in all their extent as between
the drawer and the party who indorses or lends his name to the
bill as surety for the accommodation of the drawer. In such a
case, the party who indorses is not entitled to damages from the
drawer beyond what he has actually sustained. (d) If the acceptor
alters the bill on acceptance, he vacates it as against the drawer
and indorsers; but if the holder acquiesces in such alteration and
acceptance, it is a good bill as between the holder and acceptor. (e)
A third person, after protest for non-acceptance by the
* 87 *drawee, may intervene, and become a party to the bill, in
a collateral way, by accepting and paying the bill for the
honor of the drawer, or of a particular indorser. His acceptance
is termed an acceptance supra protest, and he subjects himself to
the same obligations as if the bill had been directed to him; but
the bill must be duly presented to the drawee at maturity, and
if not paid, it must be duly protested for non-payment, and due
notice given to the acceptor supra protest, to make his liabilities
as such acceptor absolute. He has his remedy against the person
for whose honor he accepted, and against all the parties who
stand prior to that person, on giving due notice of the dishonor
of the bill. If he takes up the bill for the honor of the indorser,
he stands in the light of an indorsee paying full value for the
bill, and has the same remedies to which an indorsee would be
entitled against all prior parties, and he can, of course, sue the
drawer and indorser. (a)¹ The acceptance supra protest is good,
(d) Dorsey v. His Creditors, 19 Mart. (La.) 498.
(e) Paton v. Winter, 1 Taunt. 420.
(a) Mutford v. Walcot, 1 Ld. Raym. 574; Mertens v. Winnington, 1 Esp. 112;
Bayley on Bills, 209; Story on Bills, [§§ 122-125, 452;] Goodall v. Polhill, 1 C. B.
233. The rights and remedies growing out of acceptances supra protest are equally
recognized in the foreign commercial law of Europe; and the authorities for that
purpose, such as Straccha, Heineccius, Pothier, Pardessus, and the French Ordi-
1 Acceptance supra Protest. It is laid dishonored acceptance for the honor of
down that the person who takes up a bill the drawer, but for his own benefit, to an
supra protest for t e honor of a particular innocent indorsee, has the rights of the
party to the bill, succeeds to the title of holder against the acceptor, and is not
the person from whom, not for whom, he affected by the state of accounts between
receives it, and has all the title of such drawer and acceptor at the time of the
person to sue upon it, except that he dis- acceptance. Ex parte Lambert, 13 Ves.
charges all the parties to the bill subse- 179, is said to be overruled. Ex parte
quent to the one for whose honor he takes Swan, L. R. 6 Eq. 344. See, further,
it up, and that he cannot himself indorse ante, 78, n. 1.
it over. For instance, a person paying a
[112]
LECT. XLIV.]
* 88
OF PERSONAL PROPERTY.
though it be done at the request and under the guaranty of the
drawee, after his refusal, and the party for whose honor it is paid
is equally liable. (b) The policy of the rule granting these privi-
leges to the acceptor supra protest, is to induce the friends of the
drawer or indorser to render them this service, for the benefit of
commerce and the credit of the trader, and a third person inter-
poses only when the drawee will not accept. There can be no
other acceptor after a general acceptance by the drawee. A third
person may become liable on his collateral undertaking, as guar-
anteeing the credit of the drawee, but he will not be liable in
the character of acceptor. It is said, however, that when the
bill has been accepted supra protest, for the honor of one party
to the bill, it may, by another individual, be accepted supra pro-
test, for the honor of another. (c) The holder is not bound to
take an acceptance supra protest, (d) but he would be
bound to accept an offer to pay supra protest. * The pro- * 88
test is necessary, and should precede the collateral accept-
ance or payment; (a) and if the bill, on its face, directs a resort
to a third person, in case of a refusal by the drawee, such direc-
tion becomes part of the contract. (b)
As between the holder of a check and the indorser, it ought
to be presented for acceptance with due diligence; (c) but as
nances, are referred to in Mr. Justice Story's thorough treatise. The person who
pays a protested bill supra protest, for the honor of the indorser, has no remedy
against the indorser, if the latter was already discharged by reason of the want of
notice of the non-acceptance. Chitty on Bills, 213, 4, 234, 257, 330; Higgins v.
Morrison, 4 Dana (Ky.), 102. The payer supra protest must give reasonable notice
to the party that he has made such payment for his credit, otherwise that party will
not be obliged to refund. Wood v. Pugh, 7 Ohio, part 2, 164. He cannot sue the
drawer without proving demand on the drawee, and non-acceptance or non-payment
by him, and notice to the drawer. Baring v. Clark, 19 Pick. 220.
(b) Konig v. Bayard, 1 Peters, 250. [Ante, 78, n. 1.]
(c) Beawes, tit. Bills of Exchange, sec. 42; Jackson v. Hudson, 2 Camp. 447
(d) Mitford v. Walcot, 12 Mod. 410.
(a) Pothier, h. t. n. 170.
(b) Pothier, h. t. n. 137; Holland v. Pierce, 14 Mart. (La.) 499.
An accept-
ance for honor is not an absolute but a conditional acceptance, and an averment of
presentment to the drawee for payment is necessary. Williams v. Germaine, 7 B. &
C. 468. This acceptance supra protest does not apply by the commercial law to
promissory notes. Story on Promissory Notes, 557.
(c) Rickford v. Ridge, 2 Camp. 537; Beeching v. Gower, 1 Holt, 313, note of the
reporter; Clark v. Stackhouse, 2 Mart. (La.) 327; Mohawk Bank v. Broderick, 10
Wend. 304; Mohawk Bank v. Broderick, 13 Wend. 133; Parke, B., 9 M. & W. 18;
[Saul v. Jones, 1 E. & E. 59.] Where the parties reside in the same place, six days'
delay was held to discharge the indorser. Gough v. Staats, 13 Wend. 549. In Bod-
VOL. III.
8
[113]
* 88
[PART V.
OF PERSONAL PROPERTY.
between the holder and drawer, a demand at any time before
suit brought will be sufficient, unless it appears that the drawee
has failed, or the drawer has, in some other manner, sustained
injury by the delay. (d)¹ The drawee ought to accept or refuse
ington v. Schlencher, 1 Nev. & M. 540, s. c. 4 B. & Ad. 752, it was held, that the
holder was bound to present it for payment on the day following that on which he
receives it. Moule v. Brown, 4 Bing. N. C. 266; Smith v. Janes, 20 Wend. 192,
S. P. If a check be received, say on Monday, the holder may present it at any time
during banking hours on Tuesday. But if he pays it to his own banker on Tuesday,
that banker, as his agent, must present it to the drawee on Tuesday, and has not till
Wednesday to present it. That would be good as to notice of dishonor, but not as
to presentment; and as the drawee failed on Wednesday, the holder was in default.
Alexander v. Burchfield, 1 Carr. & M. 75; s. c. 7 Man. & G. 1061. The holder of a
check is not entitled, because he passes it through his banker, to one day more for
presenting it. The time is the same whether the presentment be made by himself
or through his banker, i. e. the day following that in which he receives it.
(d) Cruger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren, ib. 259; Roths-
child v. Corney, 9 B. & C. 388; Sutherland, J., in Murray v. Judah, 6 Cowen, 490,
and Savage, C. J., in Mohawk Bank v. Broderick, 10 Wend. 306.
1 Checks. Ante, 83, n. 1. Keene v.
Beard, 8 C. B. N. s. 372, 381; Smith v.
Miller, 43 N. Y. 171; Howes v. Austin,
35 Ill. 396; Willetts v. Paine, 43 Ill. 432;
Pack v. Thomas, 13 Smedes & M. 11.
The reasonable time within which a
check must be presented is defined to be
at any time between the receipt of the
check and the last moment of the ordinary
business hours of the next secular day, if
the parties reside in the same town, or
until post time of such next secular day
if the check is to be presented elsewhere.
O'Brien v. Smith, 1 Black, 99; Smith v.
Miller, 43 N. Y. 171, 176; Taylor v. Sip, 1
Vroom, 284; Ritchie v. Bradshaw, 5 Cal.
228; Bickford v. First N. Bank of Chicago,
42 Ill. 238; Veazie Bank v. Winn, 40 Me.
60. See Bailey v. Bodenham, 16 C. B.
N. s. 288; Brady v. Little Miami R. R.,
34 Barb. 249. And a person not a party
to a check received on account of his debt
is discharged by a failure to present it
within a reasonable time, if his position is
thereby altered for the worse. Hopkins
v. Ware, L R. 4 Ex. 268; Smith v. Mer-
cer, post, 105, n. 1. Hare v. Henty, 10
C. B. N. s. 65, lays it down that the fact
that a banker receives a check without
advancing any thing on it, and therefore
holds it for his customer, makes no dif-
ference in respect of the time allowed for
presentment. If the check is drawn on a
banker residing in a different town, the
holder for collection has until post time
of the day after he receives it for trans-
mitting it, as between his customer and
himself. Presentment through the post-
office is a reasonable mode of present-
ment. See, also, Prideaux v. Criddle, L.
R. 4 Q. B. 455.
When a check is certified "good" on
its face by the cashier of the bank on
which it is drawn, the bank becomes ab-
solutely bound to the holder as acceptor,
and it is settled that the cashier of a na-
tional bank has power to make such a
certificate virtute officii. Merchants' Bank
v. State Bank, 10 Wall. 604, 650; Farm-
ers & Mechanics' Bank v. Butchers &
Drovers' Bank, 16 N. Y. 125; Meads v.
Merchants' B. of Alb., 25 N. Y. 143;
Irving Bank v. Wetherald, 36 N. Y. 335;
Smith v. Miller, 43 N. Y. 171, 177; Rounds
v.
Smith, 42 Ill. 245; Bickford v. First
Nat. B. of C., ib. 238; Brown v. Leckie, 43
Ill. 497; Girard Bank v. Bank of Penn.
Township, 39 Penn. St. 92; Barnet v.
[114]
LECT. XLIV.]
88
OF PERSONAL PROPERTY.
*
acceptance, as soon as he has had a reasonable opportunity to
inform his judgment. If he cannot be found at the proper place,
the holder may cause the bill to be protested; and if the drawee
Smith, (10 Fost.) 30 N. H. 256, 265. But
see Mussey v. Eagle Bank, 9 Met. 306.
But the case in 36 N. Y. 335 should be
compared with McKleroy v. Southern
Bank of Kentucky, ante, 85, n. 1, in the
opinion intimated that a certification
under a mistake of fact may be revoked
if done before the holder has altered his
position or lost any of his remedies. As
As
to negligence of the holder in inducing
the bank to pay, see Nat. Bank of North
America v. Bangs, ante, 85, n. 1.
It has been held by courts of the great-
est authority that the holder of a check
not certified or otherwise accepted by the
bank on which it is drawn, could not
maintain an action of contract against the
bank for the amount. Bank of the Re-
public v. Millard, 10 Wall. 152; Bullard
v. Randall, 1 Gray, 605; Dana v. Third
Nat. Bank in Boston, 13 Allen, 445;
Chapman v. White, 2 Seld. 412; Dykers
v. Leather Manuf. Bank, 11 Paige, 612;
Lunt v. Bank of North America, 49 Barb.
221; Loyd v. McCaffrey, 46 Penn. St. 410.
See also Bellamy v. Marjoribanks, 7 Exch.
389, 404; ante, 83, n. 1. The language
of the cases was general, but many of the
decisions do not necessarily go farther
than to hold that the action was not
maintainable in that form. It is perhaps
still open to inquiry whether a liability is
not imposed by custom, just as it was
formerly said that the custom of merchants
did not extend so far as to create a debt
on the part of the acceptor of a bill of
exchange, but only made him onerabilis to
pay the money. Hardres, 485, 487. See
Munn v. Burch, 25 Ill. 35; Vanbibber v.
Bank of Louisiana, 14 La. An. 481, 482;
Fogarties v. State Bank, 12 Rich. 518;
Roberts v. Corbin, 26 Iowa, 315; National
Bank v. Eliot Bank, 5 Am. Law Reg. 711,
717.
due, given in good faith for a valuable
consideration, has been held to be an
equitable assignment which prevailed
over a subsequent trustee process served
on the bank; Kingman v. Perkins, 105
Mass. 111; compare Witte v. Vincenot, 7
Am. L. R. 169; and so may be an order
of the same sort by any creditor on his
debtor. Macomber v. Doane, 2 Allen, 541;
Edwards v. Daley, 14 La. An. 384. But
the mere fact that a bill of exchange is
drawn for the whole amount due the
drawer has not necessarily that effect, so
as to entitle the holder to proceed in
equity against the drawee. Bank of
Commerce v. Bogy, 44 Mo 13. As to
when a gift of a sum made by drawing a
check is complete, compare Bromley v.
Brunton, L. R. 6 Eq. 275, with Hewitt v.
Kaye, ib. 198. Ante, ii. 448, n. 1.
Whatever may be the liability to the
holder of a check, it is clear that the
banker, having in his hands effects of his
customer, is liable to an action at the
suit of the latter, for refusing to pay the
latter's checks. Rolin v. Steward, 14 C.
B. 595.
Checks are not entitled to days of
grace; and a draft on a bank is prima
facie at least not a check unless made
payable on demand. Andrew v. Blachly,
11 Ohio St. 89; Morrison v. Bailey, 5
Ohio St. 13; Bowen v. Newell, 4 Selden,
190; 3 Kern. 290; Taylor v. French, 4 E.
D. Smith, 458; Minturn v. Fisher, 4 Cal.
35. See Henderson v. Pope, 39 Ga. 361;
Ivory v. Bank of State of Missouri, 36
Mo. 475. But see In re Brown, 2 Story,
502; Westminster Bank v. Wheaton, 4 R.
I. 30. But post-dated checks are very
common, and are payable on the day of
their date, although negotiated before-
hand. Taylor v. Sip, 1 Vroom, 284.
See further, as to checks, ante, 78, n. 1;
An order on a bank for the whole sum post, 91, n. 1.
[115]
*88
[PART V.
OF PERSONAL PROPERTY.
be dead, the bill may be presented to his executor or adminis-
trator. (e)
5. Of the Indorsement. — A valid transfer may be made by the
payee, or his agent, and the indorsement is an implied contract
that the indorser has a good title, and that the antecedent names
are genuine, that the bill or note shall be duly honored or paid,
and if not, that he will, on due protest and notice, take it up. (ƒ)²
(e) Molloy, b. 2, c. 10, sec. 34; Bayley on Bills, 128.
(ƒ) Ogden v. Saunders, 12 Wheat. 213, 341; Pardessus, Droit Com. 2, art. 847;
Story on Prom. Notes, 145.
2 Vendor's Liability. As to the text
see Turnbull v. Bowyer, 40 N. Y. 456.
The indorser also guarantees the compe-
tency of the makers to contract. Erwin
v. Downs, 15 N. Y. 575; ante, 85, n. 1.
When a bill is merely sold by one who
is not a party to it, and who gives no war-
ranty, and who therefore is not responsible
for the quality of the bill or the solvency
of the parties, the price may still be recov-
ered back on the ground of failure of con-
sideration or as money paid under a mis-
take of fact, if the bill turns out to be
different in kind from the thing described
in the agreement, as when that which is
sold as a foreign bill turns out not to be
one, or when the acceptance is forged.
See note on sales, ante, ii.; Gompertz
v. Bartlett, 2 El. & Bl. 849; Gurney v.
Womersley, 4 El. & Bl. 133; Merriam v.
Wolcott, 3 Allen, 258, overruling Ellis v.
Wild, sup., 86, n. (b); Thompson v. Mc-
Cullough, 31 Mo. 224; Parlange v. Faurès,
14 La. An. 444; Terry v. Bissell, 26 Conn.
23; Aldrich v. Jackson, 5 R. I. 218;
Dumont v. Williamson, 18 Ohio St. 515;
Swanzey v. Parker, 50 Penn. St. 441. But
see Hinckley v. Kersting, 21 Ill. 247.
Similar principles would apply, it is
supposed, when the bill is received in
payment. Bell v. Cafferty, 21 Ind. 411.
See, as to bank-notes, Baker v. Bonesteel,
2 Hilton, 397; sup., 86, n. (b). And it has
been doubted whether a person receiving
payment in forged bank-notes is bound
to return them before he can maintain an
action on his original demand. Burrill v.
Watertown Bank & L. Co., 51 Barb. 105.
But see Kenny v. First Nat. Bank of Al-
bany, 50 Barb. 112; Simms v. Clark, 11
Ill. 137; Magee v. Carmack, 13 Ill. 289;
and, generally, Pooley v. Brown, 11 C. B.
N. s. 566; post, 105, n. 1.
In this connection it should be men-
tioned that the doctrine of Bayard v.
Shunk, sup., 86, n. (b), as to the notes of
an insolvent bank sold or received in pay-
ment, is disapproved by some later cases.
Westfall v. Braley, 10 Ohio St. 188;
Townsends v. Bank of Racine, 7 Wis.
185; Magee v. Carmack, 13 Ill. 289. See
Timmins v. Gibbins, 18 Q. B. 722 ; Turner
v. Stones, 1 Dowl. & L. 122; post, 105, n.
1. But it seems to be the general rule in
England, and a distinction is taken between
bank-notes and ordinary notes and bills
Lichfield Union v. Greene, 1 Hurlst. & N.
884; Byles on B., 10th ed. 159; Smith v.
Mercer, L. R. 3 Ex. 51; Woodland v.
Fear, 7 El. & Bl. 519, 520; Bicknall -v.
Waterman, 5 R. I. 43, 51; Ware v. Street,
2 Head, 609. See Renton v. Marryott, 6
C. E. Green (21 N. J. Eq.), 123. It might
be otherwise if the party making the
transfer knew that the maker of the in-
strument was insolvent, for it has been
said that he warrants that he has no
knowledge of any facts which prove the
paper to be worthless, on account of the
failure of the makers, or by its being al-
ready paid, or otherwise to have become
void or defunct. 1 H. & N. 890; Brown
[116]
LECT. XLIV.]
*89
OF PERSONAL PROPERTY.
In the case of a bill made or indorsed to a feme covert or to a feme
sole, who afterwards marries, the right to indorse it belongs to the
husband. So, the assignee of an insolvent payee, or the executor
or administrator of a deceased payee, are entitled to indorse the
paper. (g) And if a bill be made payable to a mercantile
* house consisting of several partners, an indorsement by *89
any one of the partners is deemed the act of the firm. If the
bill be made payable to A, for the use of B, the legal title is in
A, and he must indorse it. So an infant payee or indorsee may, by
his indorsement, transfer the interest in the bill to any subsequent
holder, against all the parties to the bill except himself; and if a
third person other than the payee guarantees, by indorsement, pre-
vious to delivery to the payee, the payment of the note, he is held
to be an indorser, under the New York statute. (a)¹
(g) Parker, C. J., in 1 P. Wms. 255; Conner v. Martin, cited in 3 Wils. 5; Raw
linson v. Stone, ib. 1. In Harper v. Butler, 2 Peters, 239, it was admitted, that an
indorsement of a negotiable note by the executor of the payee, and good in the state
where he was appointed and indorsed it, will enable the indorsee to sue in his own
name in any other state. But a contrary doctrine was held in Stearns v. Burnham,
5 Greenl. 261, and Thompson v. Wilson, 2 N. H. 291. These last decisions are ques-
tioned in the case of Rand v. Hubbard, 4 Met. 259, and the doctrine in the other
cases sustained; and I think the better opinion to be, that if the holder of the note
dies before the note becomes due, his executor or his administrator, if one be
appointed, may make the demand, and give notice so as to fix the prior parties.
[Malbon v. Southard, 36 Maine, 147; Dwight v. Newell, 15 Ill. 333.]
(a) Prosser v. Luqueer, 4 Hill, 420. An indorsement by the cashier of a bank for
the bank passes the title. Story on Promissory Notes, p. 132.
v. Montgomery, 20 N. Y. 287; Delaware
Bank v. Jarvis, ib. 226; Byrd v. Hall, 2
Keyes, 646, 647. But the contrary is
held in Bartle. v. Saunders, 2 Grant
(Penn.), 199.
¹ Indorsement before Delivery. — In some
states a stranger indorsing a note before
delivery to the payee is prima facie liable
as an original promisor. Sylvester v.
Downer, 20 Vt. 355; Schneider v. Schiff
man, 20 Mo. 571; Childs v. Wyman, 44
Me. 433; Perkins v. Barstow, 6 R. I. 505;
Currier v. Fellows, 7 Fost. (27 N. H.) 366;
Carpenter v. Oaks, 10 Rich. 17; Wether-
wax v. Paine, 2 Mich. 555; Cecil v. Mix,
6 Ind. 478; Carr v. Rowland, 14 Texas,
275; Peckham v. Gilman, 7 Minn. 446;
Collins v. Trist, 20 La. An. 348. See
Rey v. Simpson, 22 How. 341, 350; Vore
v. Hurst, 13 Ind. 551, 556; Orrick v. Col-
ston, 7 Gratt. 189, 199. In Massachusetts,
and perhaps in some of the above states,
the rule is even stricter. Essex Co. v.
Edmands, 12 Gray, 273; Brown v. Butler,
99 Mass. 179; Wright v. Morse, 9 Gray,
337. Compare Patch v. Washburn, 16
Gray, 82.
·
In other states he is prima facie a
guarantor. Camden v. McKoy, 3 Scam-
mon, 437; Webster v. Cobb, 17 Ill. 459;
Blatchford v. Milliken, 35 Ill. 434; Ranson
v. Sherwood, 26 Conn. 437; Riddle v.
Stevens, 32 Conn. 378; Rhodes v. Sey-
mour, 36 Conn. 1; Seymour v. Leyman,
10 Ohio St. 283, 286; Greenough v. Smead,
3 Ohio St. 415. See Orrick v. Colston, 7
Gratt. 189, 199.
In other states he is held to be only an
[ 117 ]
*89
[PART V.
OF PERSONAL PROPERTY.
The bill cannot be indorsed for a part only of its contents, unless
the residue has been extinguished; for a personal contract cannot
be apportioned, and the acceptor made liable to separate actions
by different persons.
Blank indorsements are common, and they may be filled up
at any time by the holder, even down to the moment of trial in
a suit to be brought by him as indorsee; but no other use can be
made of a blank indorsement in filling it up than to point out the
person to whom the bill or note is to be paid. A note indorsed in
blank is like one payable to bearer, and passes by delivery; and
the holder may constitute himself, or any other person, assignee
of the bill. The courts never inquire whether he sues for him-
self, or as trustee for some other person. (b) Even a bond made
payable to bearer has been held to pass by delivery, in the same
manner as a bank-note payable to bearer, or a bill of exchange
indorsed in blank. (c)2 The holder may strike out the indorse-
(b) Peacock v. Rhodes, Doug. 633; Francis v. Mott, cited in ib. 634; Bull. N. P.
275; Livingston v. Clinton, and Cooper v. Kerr, cited in 3 Johns. Cas. 264; Lovell
v. Evertson, 11 Johns. 52; Duncan, J., in 13 Serg. & R. 315; Kiersted v. Rogers,
6 Harr. & J. 283; Evans v. Gee, 11 Peters, 80. In Sprigg v. Cuny, 19 Mart. (La.) 253,
it was held, that the holder of a negotiable note, indorsed in blank, might sue on it,
without filling it up to himself.
to himself. Under the French law, an indorsement in blank, of
a promissory note, is not valid. Code de Comm. art. 137, 138. The law is the same
in Germany. Heinec. de Camb. c. 2, secs. 10, 11. Nor can the holder of a bill
drawn and indorsed in France, in blank, recover against the acceptor in the English
courts, for such an indorsement was not a valid contract by the lex loci contractus.
Trimbey v. Vignier, 1 Bing. N. C. 151. [But see 95, n. 1.]
(c) Gorgier v. Mieville, 3 B. & C. 45.
indorser. Spies v. Gilmore, 1 Comst.
321; Ellis v. Brown, 6 Barb. 282; Water-
bury v. Sinclair, 26 Barb. 455; Cottrell v.
Conklin, 4 Duer, 45; Slack v. Kirk, 67
Penn. St. 380, and cases cited; Clouston
v. Barbiere, 4 Sneed, 336; Fear v. Dunlap,
1 Greene (Iowa), 331; Pierce v. Kennedy,
5 Cal. 138; Jones v. Goodwin, 39 Cal.
493; Jennings v. Thomas, 13 Smedes & M.
617. See Vore v. Hurst, 13 Ind. 551, 557.
But in most jurisdictions except New
York and Massachusetts parol evidence
is admissible to show that some other
contract was intended. See, further, infra,
n. (k), and especially Rey v. Simpson, 22
How. 341, 350.
2 Negotiable Bonds. The American
cases generally treat such bonds as nego-
tiable. Mercer County v. Hacket, 1 Wall.
83, 95; Gelpcke v. Dubuque, ib. 175, 206;
Murray v. Lardner, 2 Wall. 110; Smith
v. Sac County, 11 Wall. 139; Texas v.
White, 7 Wall. 700, 735; Craig v. Vicks-
burg, 31 Miss. 216; Morris Canal & B.
Co. v. Fisher, 1 Stockt. 667; Ide v. Pas-
sumpsic & Conn. R. R.R., 32 Vt. 297;
Mechanics' Bank v. N. Y. & N. H. R.R.,
3 Kern. (13 N. Y.) 599, 625; Connecticut
Mut. L Ins. Co. v. Cleveland, C. & C.
R.R., 41 Barb. 9, 22; Clark v. DesMoines,
19 Iowa, 199, 213; Porter v. McCollum,
15 Ga. 528. But see Helfer v. Alden, 3
[118]
LECT. XLIV.]
* 89
OF PERSONAL PROPERTY.
ment to him, though full, and all prior indorsements in blank,
except the first, and charge the payee or maker. (d) When the
indorser takes up the note, he becomes the holder as entirely as
though he had never parted with it. (e) There is no necessity
(d) Dollfus v. Frosch, 1 Denio, 367.
(e) Smith v. Clarke, Peake, 225; United States v. Barker, 1 Paine, 156; M'Donald
v. Magruder, 3 Peters, 474; Conant v. Wills, 1 McLean, 427; Leidy v. Tammany, 9
Watts, 359.
Minn. 332. So even a bond with a blank
for the name of the payee. White v. Vt.
& Mass. R.R., 21 How. 575; infra, n. (c);
Chapin v. Vt. & Mass. R.R., 8 Gray, 575.
The coupons annexed to them, also,
may be detached and negotiated sepa-
rately, like other negotiable instruments
payable to bearer, and the holder may
recover upon them without producing the
bonds. National Exch. Bank v. Hartford,
Pr. & F. R.R., 8 R. I. 375; Spooner v.
Holmes, 102 Mass. 503, 507; Beaver
County v. Armstrong, 44 Penn. St. 63;
Thomson v. Lee Cy., 3 Wall. 327, 332;
Knox Cy. Commissioners v. Aspinwall,
21 How. 539; Arents v. Commonwealth,
18 Gratt. 750, 767; San Antonio v. Lane,
32 Texas, 405. When, as is usually the
case, the bond also contains a promise to
pay interest, and the coupons refer to the
bond, the coupons have been treated as a
mere repetition of the contract contained
in the bond, for the convenience of the
holder, so far as to hold that a suit upon
them is not barred by the statute of limi-
tations until one upon the undertaking in
the bond would be also. City v. Lam-
son, 9 Wall. 477. On the other hand,
interest on them after demand and refusal
to pay has been allowed by the supreme
courts of the United States and of some
of the states; Aurora City v. West, 7
Wall. 82; North Penn. R.R. v. Adams,
54 Penn. St. 94; Mills v. Jefferson, 20
Wis. 50; San Antonio v. Lane, 32 Tex.
405; and they are treated as overdue the
day after they become payable, in Arents
v. Commonwealth, sup. ; Union Bank of
La. v. New Orleans, 5 Am. Law Reg.
s. 555. And if the coupon is a mere
repetition of the promise to pay interest
in the bond, and if the latter contract can
be sued on apart from the obligation for
the principal sum, this would be right.
See Robbins v. Cheek, 32 Ind. 328.
The modern English cases in chancery
hold that such bonds are either promis-
sory notes or else analogous to the letter
of credit, ante, 84, n. (c), an offer to all the
world; and quacunque via, not subject to
the equities between the original parties.
In re Imperial Land Co. of Marseilles, Ex
parte Colborne & Strawbridge, L. R. 11
Eq. 478, 491; In re Blakely Ordnance Co.,
Ex parte New Zealand Banking Co., L. R.
3 Ch. 154; In re General Estates Co., Ex
parte City Bank, ib. 758; (explaining In
re Natal Investment Co., Claim of Finan-
cial Co., ib. 355.)
A guaranty is held to be assignable in
equity on similar grounds in Arents v.
Commonwealth, 18 Gratt. 750, 769.
The liability of a corporation for allowing
stock to be transferred to other parties
while the certificates are outstanding in
the hands of bona fide holders, has been
put on somewhat similar ground. There
is an offer to all the world on the face of
the certificate, and under the seal of the
company, that whoever in good faith will
buy the stock and produce to the cor-
poration the certificates, regularly as-
signed, with power to transfer the stock
on the books of the corporation, shall be
entitled to have the stock transferred to
him. Bank v. Lanier, 11 Wall. 369, 378;
citing Bridgeport Bank v. New York &
N. H. R.R., 30 Conn. 270; Bridgeport
Bank v. Schuyler, 34 N. Y. 30.
[119]
* 90
[PART V.
OF PERSONAL PROPERTY.
for any negotiable words in the indorsement.
An indorsement
to A. B., without adding "or order," is a good general indorse-
ment. (f) But to give effect to an indorsement, there must be
delivery. (g) A bill originally negotiable continues so in the hands
*
of the indorsee, unless the general negotiability be restrained
*90 by a special indorsement by the payee. He may stop its
negotiability by a special indorsement, but no subsequent
indorsee can restrain the negotiable quality of the bill. (a) The
first indorser is liable to every subsequent bona fide holder, even
though the bill or note be forged or fraudulently circulated. (b)
If a blank note or check be indorsed, it will bind the indorser
to any sum, or time of payment, which the person to whom he
intrusts the paper chooses to insert in it. (c)¹ This only applies
(ƒ) Bayley on Bills, 128; Story on Promissory Notes, 150.
(g) Marston v. Allen, 8 M. & W. 494. [Lloyd v. Howard, 15 Q. B. 995; Denton
v. Peters, L. R. 5 Q. B. 475; Dann v. Norris, 24 Conn. 333; Kirkpatrick v. Wolfe,
17 Ark. 96.]
(a) Edie v. East India Company, 2 Burr. 1216; Ancher v. The Bank of England,
Doug. 637; Smith v. Clarke, 1 Esp. 180; [Walker v. Macdonald, 2 Exch. 527;
Mitchell v. Fuller, 15 Penn. St. 268; Savannah Nat. Bank v. Haskins, 101 Mass. 370,
377;] Story on Promissory Notes, p. 136, n. 2. Restrictive indorsements are also
allowed in France and Germany. Pothier, de Change, n. 23, 42, 89; Heineccius,
de Camb. c. 2, sec. 10.
(b) Lambert v. Pack, 1 Salk. 127; Putnam v. Sullivan, 4 Mass. 45; Codwise v.
Gleason, 3 Day, 12; Herbert v. Huie, 1 Ala. 18. Where several successive indorsees
have advanced money on the draft, the first indorsement being a forgery, each may
recover from his immediate indorser. Canal Bank v. Bank of Albany, 1 Hill (N.
Y.), 287. The indorsement of a bill implies an undertaking, that all the antecedent
parties upon the bill are persons competent to draw and indorse the same, and that
the indorser has, in virtue thereof, a good title to the bill, and to convey the same by
indorsement. Story on Bills, [§§ 108, 110.] An indorser of a promissory note does
not stand in the situation of a maker of it, whether he be the payee, or indorsee, or a
third person. But Mr. Justice Story considers him to stand in the same situation as
the drawer or indorser of a bill, and a collateral liability is created. Story on Prom-
issory Notes, 134, 135.
(c) Russel v. Langstaffe, Doug. 514; Violett v. Patton, 5 Cranch, 142; Johnson v.
Blasdale, 1 Smedes & M. 1. The doctrine in several cases now is, that a deed executed
in blank, with parol authority to a third person to fill it up afterwards, will be binding.
Texira v. Evans, cited by Wilson, J., in 1 Anst. 229; Wiley v. Moor, 17 Serg. & R.
1 Fullerton v. Sturges, 4 Ohio St. 529;
Holland v. Hatch, 15 Ohio St. 464; Or-
rick v. Colston, 7 Gratt. 189; Michigan
Ins. Co. v. Leavenworth, 30 Vt. 11; Spit-
ler v. James, 32 Ind. 202; (compare
Luellen v. Hare, ib. 211;) Michigan Bank
v. Eldred, 9 Wall. 544; Smith v. Wyckoff,
3 Sandf. Ch. 77; Torrey v. Fisk, 10 Smedes
& M. 590; Ex parte Bartlett, 3 De G. &
J. 378; Montague v. Perkins, 22 L. J.
N. s. C. P. 187; 22 Eng. L. & Eq. 516.
But see Awde v. Dixon, 6 Exch. 869;
ante, 79, n. 1. See as to n. (c), 89, n. 2.
[120]
LECT. XLIV.]
* 91
OF PERSONAL PROPERTY.
to the case in which the body of the instrument is left blank.
If negotiable paper, regularly filled up, be indorsed in blank,
the indorser is holden only in the character of indorser, and
according to the terms and legal operation of the instrument. (d)
In the case of blank indorsements, possession is evidence of
title; but if the indorsements be all filled up, the first indorsee
cannot sue without showing that he had taken up the bill or
note. (e) The acceptor or maker is liable only to the last indor-
see. The prior indorsers have parted with their interest in the
paper, and are presumed to have received a valuable consideration
for it. But if the last indorsee protests the bill for nonpay-
ment, and it be paid by a prior indorser, the *latter ac-
quires, by such payment, a new title to the instrument. (a)
*
91
Though the holder of paper fairly negotiated be entitled to
recover, and to shut out almost every equitable defence, yet the
rule applies only to the case of negotiable paper, taken bona fide
in the course of business before it falls due. If taken after it
is due and payable, the presumption is against the validity of
the demand, and the purchaser takes it as a dishonored bill, at
438; Woolley v. Constant, 4 Johns. 60; Ex parte Kerwin, 8 Cowen, 118. The ancient
cases were otherwise, and so are some of the modern American cases; as, see 1 Yer-
ger, 69, 149; 2 Dev. (N. C.) 379; 3 Bibb, 361; 1 Hill (S. C.), 267; United States v.
Nelson, 2 Brock. 64; Williams v. Crutcher, 5 How. (Miss.) 71. In Indiana, the
indorser of a note is understood to warrant two things: 1. That the note is valid, and
the maker liable to pay it; 2. That the maker is solvent, and able to pay it. Howell
v. Wilson, 2 Blackf. 418.
(d) See Jackson v. Richards, 2 Caines, 343. In Beckwith v. Angell, 6 Conn. 315,
it was held, that if a promissory note be indorsed in blank, under a parol promise to
guarantee the payment, the holder may fill up the blank, pursuant to the special
agreement, and prove that agreement by parol. The indorser will be liable, under
such circumstances, without proof of the demand and notice requisite in other cases.
There have been decisions to the same effect, in Josselyn v. Ames, 3 Mass. 274; Ulen
v. Kittredge, 7 id. 233; Moies v. Bird, 11 id. 436; Upham v. Prince, 12 id. 14. See,
also, Story on Bills, [§ 215;] Nelson v. Dubois, 13 Johns. 175; Campbell v. Butler,
14 id. 349. But the indorser of a negotiable note cannot be treated as a guarantor,
provided he could, by the holder, have been charged as indorser. The prior cases in
Johnson are considered as erroneous on this point. Seabury v. Hungerford, 2 Hill,
84; Hall v. Newcomb, 3 id. 233. In Parker v. Riddle, 11 Ohio, 102, it was held, that
if a note not negotiable be indorsed, it is a collateral undertaking, and payment must
be demanded, and notice given to the indorser, as upon negotiable paper.
(e) The rule now is, that the holder of a negotiable note by a blank indorser may
sue upon it without filling up the blank. Chitty on Bills, ed. 1839, 255; 2 La. 192;
Chewning v. Gatewood, 5 How. (Miss.) 552. The presumption of title in the holder
is good until the contrary be established.
(a) Mendez v. Carreroon, 1 Ld. Raym. 742; Gorgerat v. M'Carty, 2 Dallas, 144.
[121]
* 91
[PART V.
OF PERSONAL PROPERTY.
his peril, and subject to every defence existing against it before
it was negotiated. (b)¹ But it has been a question, when a note
(b) Brown v. Davies, 3 T. R. 80; Lee v. Zagury, 8 Taunt. 114; Tinson v. Francis,
1 Camp. 19; Sargent v. Southgate, 5 Pick. 312, 317, 319; Andrews v. Pond, 13 Peters,
65. A stricter course is observed in the case of bills and notes than in that of checks ;
and a party taking a check overdue does not necessarily take it subject to all the
infirmities of the previous title, provided he exercises a reasonable caution in taking
it; and that is a question of fact for a jury. Rothschild v. Corney, 1 Danson & Ll.
325; Mohawk Bank v. Broderick, 13 Wend. 133. A bill may be indorsed after it is
due, for it continues negotiable ad infinitum until paid or discharged, provided the
subsequent circulation does not prejudice any of the indorsers. Bayley on Bills, 5th
ed. 156, 158; Hubbard v. Jackson, 4 Bing. 390; Callow v. Lawrence, 3 M & S. 95. In
Burrough v. Moss, 10 B. & C. 558, and in Hughes v. Large, 2 Barr [2 Penn. St.] 103,
the rule in the text was restricted to all equities arising out of the note transaction
itself; and it was held not to extend to protect a set-off, in respect of a debt due
from the indorser to the maker, arising out of collateral matters. It extends only to
matters of set-off existing at the time of the indorsement. Baxter v. Little, 6 Met. 7.
1 Overdue Paper. The text is con-
firmed by Foley v. Smith, 6 Wall. 492;
Kellogg v Barton, 12 Allen, 527; Vinton v.
King, 4 Allen, 562. See especially Texas
v. White, 7 Wall. 700, 735; s. c. sub nom.
Texas v. Hardenberg, 10 Wall. 68, 90.
This principle has been applied when
the defence was that the defendant became
a party to the instrument for the accom-
modation of the person who transferred it
after maturity to the plaintiff. Bower v.
Hastings, 36 Penn. St. 285; Chester v.
Dorr, 41 N. Y. 279. See Jewell v. Parr,
16 C. B. 684. But see Charles v. Marsden,
1 Taunt. 224; Stein v. Yglesias, 1 Cr., M.
& R. 565; Sturtevant v. Ford, 4 Man. &
G. 101; Carruthers v. West, 11 Q. B. 143;
Ex parte Swan, L. R. 6 Eq. 344, 358.
Even if a note is taken innocently before
maturity, but by mistake the indorsement
is omitted until the note becomes overdue,
and the indorsee has received notice of
facts making it invalid in the hands of the
indorser, it has been held that the indorse-
ment will not relate back so as to cut
out the defence. Lancaster National
Bank v. Taylor, 100 Mass. 18; Clark v.
Whitaker, 50 N. H. 474; Haskell v.
Mitchell, 53 Me. 468; Whistler v. Forster,
14 C. B. N. s. 248. See, further, as to
relation, Ex parte Hayward, L. R. 6 Ch.
546, 549. But as mentioned at the end of
note (b), the rule in the text is restricted
to the equities arising out of the original
transaction. Davis v. Miller, 14 Gratt. 1;
Oulds v. Harrison, 10 Exch. 572, 578;
Holmes v. Kidd, 3 Hurlst. & N. 891, 893;
Ex parte Swan, L. R. 6 Eq. 344, 359;
Renwick v. Williams, 2 Md. 356; Gullett
v. Hoy, 15 Mo. 399; Hawkins v. Shoup, 2
Cart. (Ind.) 342; Tinsley v. Beall, 2 Kelly
(Ga.), 134.
Notes payable on Demand. - The prin-
ciple of Wethey v. Andrews, inf., n. (c),
was approved on different reasoning in
Merritt v. Todd, 23 N. Y. 28, and such a
note was thought to be a continuing secu-
rity on which the indorser remains liable
until actual demand, and on which demand
need not be made within any particular
time. (But see Goodwin v. Davenport,
47 Me. 112.) And it is intimated that if
it is otherwise when interest is not payable,
the time within which demand must be
made in order to charge collateral parties
is the same as in the case of checks.
35; ante, 88, n. 1. See Lockwood v.
Crawford, 18 Conn. 361, 372.
It was
said, however, in Merritt v. Todd, at p. 35,
that lapse of time or nonpayment of in-
terest may perhaps be sufficient to put
the purchaser on inquiry, or to justify a
Ib.
[ 122 ]
LECT. XLIV.]
* 91
OF PERSONAL PROPERTY.
payable upon demand is to be deemed a note out of time,
so as to subject the indorsee, upon a subsequent negotiation
of it, to the operation of the rule. When the facts and cir-
cumstances are ascertained, the reasonableness of time is a
matter of law, and every case will depend upon its special
circumstances. Eighteen months, eight months, seven months,
five months, even two months and a half, have been held, when
unexplained by circumstances, an unreasonable delay; and if
the demand be not made in a reasonable time by the holder, the
indorser is discharged. (c) On the other hand, in Thurston v.
(c) Furman v. Haskin, 2 Caines, 369; Losee v. Dunkin, 7 Johns. 70; Field v.
Nickerson, 13 Mass. 131; Sice v. Cunningham, 1 Cowen, 397; Martin v. Winslow, 2
Mason, 241. In Brooks v. Mitchell, 9 M. & W. 15, a note payable on demand, with
interest, and indorsed a number of years after its date, was held, under circum-
stances, not to be overdue, so as to affect the indorsee with the equities; the court
say it is intended to be a continuing security. This appears to be rather an extrava-
gant indulgence of delay. But in Wethey v. Andrews, 3 Hill, 582, it was held, that
presumption that the instrument was dis-
honored before transfer, so as to allow the
maker to introduce a defence existing
against the first holder; and this is so held
in Herrick v. Woolverton, 41 N. Y. 581,
where the note was payable on demand
with interest, and some dissatisfaction
with the other case is shown. Morey v.
Wakefield, 41 Vt. 24; Arents v. Common-
wealth, 18 Gratt. 750, 782. An action
against the maker of a note payable on
demand with interest is barred in six
years. Wheeler v. Warner, 47 N. Y. 519.
But in Chartered Mercantile Bank of
India, London, and China v. Dickson, L.
R. 3 P. C. 574, a reasonable time with
reference to the circumstances of the case
was allowed, as against the indorser, for
presentment of a note payable on demand
without (?) interest. The result of the
later New York cases, Goodwin v. Daven-
port, sup., and Chartered Bank of India v.
Dickson, sup., seems to be that the prin-
ciple of Merritt v. Todd, if law, is not to
be extended.
Some cases as to the reasonableness of
particular times will be found post, 102.
The lapse of time which would have the
effect of letting the maker in to his de-
fences, as in Herrick v. Woolverton, would
probably have to be greater than that
which would discharge the indorser under
the rule in Merritt v. Todd. Thus the
holder of a check who takes it in good
faith and for value several days after it is
drawn, receives it without being subject to
defences on the part of the maker, of which
he has no notice before or at the time his
title accrues. Ames v. Meriam, 98 Mass.
294. See Lancaster Bank v. Woodward,
18 Penn. St. 357; Serrell v. Derbyshire
R. Co., 9 C. B. 811; Poorman v. Mills, 39
Cal. 345; sup. n. (b).
It has been held that a note payable
on a certain day is overdue on the last
day of grace, so that if transferred then
it is taken subject to defences available
against it in the hands of the payee, by
an extension of the doctrine, to which
additional cases are cited, post, 102, n. (b).
Pine v. Smith, 11 Gray, 38. (But it is to
be observed that in this case no demand
appears to have been made, and that
therefore, even by the Massachusetts doc-
trine, the maker was not suable at the
time of transfer. Estes v. Tower, 102
Mass. 65.) Contra, Crosby v. Grant, 38
N. H. 273.
[123]
* 93
[PART V.
OF PERSONAL PROPERTY.
M' Kown, (d) a note payable on demand, and indorsed within
seven days after it was made, was held to be indorsed in sea-
*92 son to close all inquiry into the origin of the *note. And
when a note is negotiated in season, it may afterwards pass
from one indorsee to another, after it is due, and the holder will
be equally with the first indorsee protected in his title. (a) There
is no certain time in which a bill or note, payable at sight, or a
given time thereafter, or on demand, must be presented for accept-
ance. It must not be locked up for any considerable time; it must
be presented for payment within a reasonable time; but if put into
circulation, the courts are very cautious in laying down any rule
as to the time in which it must be presented; and, in one case, it
was allowed to be kept in circulation, without acceptance, so long
as the convenience of the successive holders might require. (b)
That was the case of a foreign bill; and an inland bill may also
be put in circulation before acceptance, and it may be kept -a
reasonable time before acceptance; but what would be a reason-
able time cannot be precisely defined, and depends upon the
particular circumstances of each case. (c) If a bill or note be
absolutely assigned, so as to pass the whole instrument to the
indorsee, its negotiable quality would pass with it; and the better
opinion would seem to be, that its negotiability could not be im-
peded by any restriction contained in the indorsement. (d) But
where the indorsement is a mere authority to receive the money
for the use, or according to the directions of the indorser, it would
be evidence that the indorsee did not give a valuable considera-
tion, and was not the absolute owner. (e) A negotiable instru-
ment may be indorsed with a restriction, qualification, or condition.
It may be indorsed so as to exempt the indorser from liability, as
if the indorser should add, at his own risk, or without recourse. In
that case, the maker or acceptor, and prior indorsers, and
*93 subsequent indorsers, would *be holden, according to the
rules and usages of commercial paper, but the immediate
a note payable on demand, with interest, was not out of time four or five weeks after
its date, but would have been if not on interest.
(d) 6 Mass. 428.
(b) Goupy v. Harden, 7 Taunt. 159.
(a) Chalmers v. Lanion, 1 Camp. 383.
(c) Fry v. Hill, 7 Taunt. 396; Muilman v. D'Eguino, 2 H. Bl. 565.
(d) Parsons, C. J., 3 Mass. 228.
(e) Sigourney v. Lloyd, 8 B. & C. 622; 1 Danson & Lloyd, 132, s. c.; 1 Atk. 249 ;
2 Burr. 1229, s. p.
[124]
LECT. XLIV.]
* 93
OF PERSONAL PROPERTY.
indorser would be exempted from responsibility by the special
contract. (a) ¹
1
If the bill or note be negotiated after it is due, and be thereby
opened to every equitable defence, yet a demand must be made
upon the drawee or maker within a reasonable time, and notice
given to the indorser, in order to charge him, equally as if it
had been a paper payable at sight, or negotiated before it was
due. (b)
6. Of the Demand and Protest.
The demand of acceptance of
a foreign bill is usually made by a notary, and in case of non-
acceptance he protests it, and this notarial protest receives credit
in all courts and places by the law and usage of merchants, with-
out any auxiliary evidence; and it is a requisite step, by the
custom of merchants, in the case of the non-acceptance or non-
payment of a foreign bill, and must be made promptly upon
refusal. It must be made at the time, in the manner, and by
the persons prescribed, in the place where the bill was pay-
able. (c) It is sufficient, however, to note the protest on the
day of the demand, and it may be drawn up in form at a future
period. The protest is necessary for the purpose of prosecution,
and it must be stated and proved in a suit on the bill. (d) On
(a) Dallas, J., in Goupy v. Harden, 7 Taunt. 163; Rice v. Stearns, 3 Mass. 225,
Welch v. Lindo, 7 Cranch, 159; Ersk. Inst. of the Scotch Law, ii, 468; Bell's Comm.
on the Scotch Law, i. 402; Story on Bills, [§§ 214-216.]
Serg. & R. 351; Berry v. Robinson, 9 Johns. 121;
Dwight v. Emerson, 2 N. H. 159; Rugely v. David-
Allwood v. Haseldon, 3 Bailey (S. C.) 457. [Patterson v.
Tyler v. Young, 30 Penn. St. 143; Levy v. Drew, 14 Ark.
(b) M'Kinney v. Crawford, 8
Bishop v. Dexter, 2 Conn. 419;
son, 2 Const. (S. C.) 33;
Todd, 18 Penn. St. 426;
334.]
(c) Gale v. Walsh, 5 T. R. 239; Story on Bills, [§§ 176, 273.] It is held that a
notarial certificate is good without a seal, though it be the usual practice to affix one.
Lambeth v. Caldwell, 1 Rob. (La.) 61. In Kentucky, by statute, in 1798, protested
foreign bills are accounted, after the death of the drawer or indorser, of equal dignity
with a judgment; and executors and administrators of every such drawer or indorser
are compelled to suffer judgment to pass against them, before any bond, bill, or other
debt of equal or inferior dignity. In France, a protest, though usual, is not necessary
to enable the holder of a note to sue the maker. The law was satisfactorily shown to
be so by proof, in Trimbey v. Vignier, 6 Carr. & P. 25. The duty of the notary in
making the demand for acceptance or payment is personal, and cannot be performed
by his clerk or a third person, and his notarial certificate must show it. Onondaga
County Bank v. Bates, 3 Hill, 53; Chitty on Bills, 8th ed. 217, 493.
(d) Tassel v. Lewis, 1 Ld. Raym. 743; Rogers v. Stevens, 2 T. R. 713; Buller,
1 He would not, however, be exempted
from his liability as vendor, explained
ante, 88, n. 2. Dumont v. Williamson, 18
Ohio St. 515.
[125]
* 93
[PART V.
OF PERSONAL PROPERTY.
inland bills, no protest was required by the common law, and it
was only made necessary in England, in certain cases, by the
J., 4 T. R. 175; Gale v. Walsh, 5 T. R. 239; Chaters v. Bell, 4 Esp. 48; Townsley
v. Sumrall, 2 Peters, 170; Chitty on Bills, h. t.; Bryden v. Taylor, 2 Harr. & J. 396.
The certificate of a foreign notary, under his hand and seal of office, of the presentment
by him of a bill or note for acceptance or payment, and of his protest thereof for
nonacceptance or nonpayment, is received in all courts by the usage and under the
courtesy of nations, as.presumptive evidence of the facts. Chitty on Bills, ed. 1836,
642; Halliday v. McDougall, 20 Wend. 85. In New York, Kentucky, and Mississippi,
a similar certificate of having given the requisite notice of such presentment, demand,
and default, to the parties to be charged, is also made, by statute, presumptive evi-
dence of the fact. Laws of N. Y. sess. 56, c. 271, sec. 8; Laws of Mississippi, 1833,
c. 70; Statute of Kentucky of 1837. If the notary omits to give the requisite notice,
the bank who employed him is not responsible for his negligence; for their agency
in the case of notes deposited with them for collection merely is gratuitous. Belle-
mire v. Bank U. S., 4 Whart. 105; East Haddam Bank v. Scovil, 12 Conn. 303;
Hyde v. Planters' Bank, 17 La. 560. So, in Fabens v. The Mercantile Bank,
23 Pick. 330, if a note be deposited in a bank for collection, and the drawer resides
in another place, and no agreement is made as to compensation for collecting, and
the bank seasonably transmits the note to a suitable bank in such other place for col-
lection, it is not responsible for the misfeasance or negligence of the bank in such
other place. The owner has, however, his remedy against the guilty bank. But in
the New York Court of Errors, in December, 1839, in the case of Allen v. The Mer-
chants' Bank of New York, 22 Wend. 215, it was decided differently. In that case
a bill drawn by a New York merchant upon a Philadelphia house was deposited with
the defendants for collection, who transmitted it to their correspondent bank in Phila-
delphia, and, acceptance being refused, the notary of the Philadelphia bank neglected
to give notice to the holder and indorser at New York, in consequence of which pay-
ment was lost. The court held, that the defendants were liable for the loss or
damage arising from the default of their Philadelphia agent, and that there was an
implied undertaking by a bank or banker, receiving negotiable paper deposited for
collection, to take the necessary measures to charge the drawer, maker, or other
proper parties, upon the default or refusal to accept or pay. This was so decided in
Smedes v. Bank of Utica, 20 Johns. 372; M'Kinster v. The Same, 9 Wend. 46; 11
id. 473. So, in the case of The Bank of Orleans v. Smith, 3 Hill (N. Y.), 560, it was
held, that if a note be deposited with a bank for collection, and the latter transmit it
to another bank for the same purpose, both are to be regarded as agents of the holder,
and liable for negligence. The use of the funds, thus temporarily obtained, formed
a valuable consideration for the undertaking. The court declared, that whether the
note or bill was received for collection in the same or a distant place, the bank was
liable for neglect, omission, or misconduct of the bank or agent it employed in the
collection, unless there was some express or implied agreemert to the contrary. It
is to be observed, however, that this decision was against the opinion of the Chan-
cellor and a considerable minority of the Senate, and that it reversed the judgment
of the Supreme Court and of the Superior Court in the City of New York. This
does not destroy the authority, while it lessens the weight and value of the decision.
In South Carolina, the rule of law is in conformity with that declared in New York;
and a bank who receives a note for collection is liable for any neglect by which the
indorsers are discharged. The use of the moneys collected is deemed a sufficient con-
sideration for the undertaking. The bank must, therefore, see to the demand of pay-
[126]
LECT. XLIV.]
* 94
OF PERSONAL PROPERTY.
statutes of 9th and 10th William III., * and 3d and 4th *94
Anne; (a) and it has long been the settled rule and practice
not to consider the protest of an inland bill or promissory note by
a notary as necessary or material. (b)¹ Nor is a protest of an
1
ment of the maker, and to the giving due notice of nonpayment to the indorsers.
If the note be placed in the hands of a notary, he is to be regarded as the agent of
the bank, and for whose neglects and mistakes the bank is liable. Thompson v. The
Bank of the State of South Carolina, 3 Hill (S.C.), 77. If a bank, having a note for
collection, places it in the hands of a notary, who is negligent, the bank has, in
Mississippi, been held not liable for his negligence, as subagent, if the bank has used
reasonable diligence and skill in the selection of the notary. Agricultural Bank v.
Commercial Bank, 7 Smedes & M. 592.
(a) By the statute of Wm. III. no inland bill can be protested until the expiration
of the days of grace, and, therefore, not until the day after the bill falls due, and
then the protest, with notice, is to be forwarded, within fourteen days after it is
made, to the proper parties. Without protest of an inland bill, the holder is entitled
to his principal and interest, and only loses his costs and damages on the bill.
Brough v. Parkins, 2 Ld. Raym. 992; s. c. 6 Mod. 80; Windle v. Andrews, 2 B. &
Ald. 696.
(b) Bayley on Bills, 167, ed. Boston, 1826; Windle v. Andrews, 2 B. & Ald. 696;
Rice v. Hogan, 8 Dana, 135. By the general law-merchant, a protest is exclusively
confined to foreign bills of exchange. Burke v. McKay, 2 How. 66; Young v. Bryan,
6 Wheat. 146; Union Bank v. Hyde, ib. 572. The statute law of New York (N. Y.
R. St. ii. 283) provides that notaries public may demand acceptance of foreign and
inland bills, and payment of them and promissory notes, but the notarial protest in
the case of inland bills and promissory notes shall not be evidence of the fact, unless the
personal attendance in court of the notary cannot be procured. Kaskaskia Bridge v.
Shannon, 1 Gilm. (Ill.) 15, s. p. In Louisiana, a notarial demand and protest in the
case of promissory notes seem to be in use, if not required by statute. Bullard &
1 Notary's Protest. -A protest is not
necessary on a foreign promissory note at
common law; Bonar v. Mitchell, 5 Exch.
415; and has been held not admissible.
Kirtland v. Wanzer, 2 Duer, 278. But
the tendency of the cases, or at least of
the legislation in several states, seems to
be the other way, and even to make the
notary's certificate evidence as to domestic
bills and notes. See Simpson v. White,
See Simpson v. White,
40 N. H. 540, 544; Ticonic Bank v. Stack-
pole, 41 Me. 302; Loud v. Merrill, 45 Me.
516; Baumgardner v. Reeves, 35 Penn.
St. 250; Ricketts v. Pendleton, 14 Md.
320; Adams v. Wright, 14 Wis. 408;
Brooks v. Day, 11 Iowa, 46; Jones v.
Berryhill, 25 Iowa, 289; Reapers' Bank
v. Willard, 24 Ill. 439; O'Neil v. Dickson,
11 Ind. 253; Gillespie v. Neville, 14 Cal.
408; and many other cases.
By the common law the duties of a
notary must be performed by himself per-
sonally, and not by a clerk or deputy.
Hunt v. Maybee, 3 Seld. 266; Cribbs v.
Adams, 13 Gray, 597; Ocean National
Bank v. Williams, 102 Mass. 141; Carter
v. Union Bank,
v. Union Bank, 7 Humph. 548; Sacrider
v. Brown, 3 McLean, 481; Ellis v. Com-
mercial Bank of Natchez, 7 How. (Miss.)
294, 302; Chenowith v. Chamberlain, 6
B. Mon. 60.
After the death of a notary public his
protest of a promissory note, authenticated
in the usual way by his signature and
official seal, is good secondary evidence.
Porter v. Judson, 1 Gray, 175; Austin v.
Wilson, 24 Vt. 630.
[127]
* 95
[PART V.
OF PERSONAL PROPERTY.
inland bill or promissory note generally deemed necessary in this
country, though the practice is to have bills drawn in one state
on persons in another protested by a notary, and the act of the
state of Kentucky of 1798, c. 57, seemed to require it. (c) It is
also necessary in Virginia, and the omission to give notice of the
protest of an inland bill causes the loss of interest and dam-
ages. (d) After the protest for nonacceptance, immediate notice
must be given to the drawer and indorser, in order to fix them,
and the omission would not be cured by the bill being presented
for payment, and subsequent notice of the nonpayment as well
as nonacceptance. (e) The drawer or indorser may be sued
forthwith upon the protest for nonacceptance, without
* 95 waiting until the bill is also presented *for payment, and
Curry's Digest, i. 40. In Georgia, the notarial protest of inland bills for nonaccept-
ance or nonpayment is required, if the amount of the bill be £20 sterling or upwards.
Hotchkiss's Code of Statute Law, 437, 438.
(c) Townsley v. Sumrall, 2 Peters, 170; Nicholls v. Webb, 8 Wheat. 326. But in
Rice v. Hogan, 8 Dana, 135, it was held, that a protest was not necessary, even in
the case of a foreign bill, as between the drawer and acceptor, under the act of Ken-
tucky, of 1837; Miller v. Hackley, 5 Johns. 375. In this last case, it was said that a
bill drawn in New York on Charleston, or any other place within the United States,
was an inland bill. A protest is not necessary in Connecticut, in the case of a bill
drawn in one state and payable in another. Bay v. Church, 15 Conn. 15. Nor in New
Jersey on inland bills. Sussex Bank v. Baldwin, 2 Harr. 487. But in South Carolina
and in Pennsylvania, a bill drawn in one state, upon a person residing in another, is
considered in the light of a foreign bill, requiring a protest. (Duncan v. Course, 1
Const. (S. C.) 100. Cape Fear Bank v. Stinemetz, 1 Hill, 44; Lonsdale v. Brown, 4
Wash. 148.) The opinion in New York was not given on the point on which the
decision rested; and it was rather the opinion of Mr. Justice Van Ness than that
of the court; but he was supported by Mr. Tucker, (see Tucker's Blackstone, ii.
467, note 22,) and also by Marius on Bills, 2, who held that bills between England
and Scotland were inland bills. The decision in South Carolina was a solemn adjudi-
cation, after argument, on the very question; and the weight of American authority
is, therefore, on that side. In Buckner v. Finley, 2 Peters, 586, it was decided,
that bills of exchange drawn in one state, on persons living in another, were
to be treated as foreign bills; and this decision, I apprehend, puts the point at rest.
See, also, Phoenix Bank v. Hussey, 12 Pick. 483; Brown v. Ferguson, 4 Leigh, 37;
Dickins v. Beal, 10 Peters, 573; Bank of U. S. v. Daniel, 12 Peters, 54; Rice v.
Hogan, 8 Dana, 134; Halliday v. McDougall, 20 Wend. 81; Carter v. Burley, 9 N.
H. 558. This is also the rule as between England and Scotland, and England and
Ireland. Mahoney v. Ashlin, 2 B. & Ad. 478. Every bill, says Mr. Justice Story,
(Com. on Bills of Exchange, [§ 22],) ought to be treated as a foreign bill, which is
drawn in one country upon another country, not governed throughout by the same
homogeneous or municipal laws.
(d) Willock v. Riddle, 5 Call, 358.
(e) Roscow v. Hardy, 2 Camp. 458; United States v. Barker, 4 Wash. 464;
Thompson v. Cumming, 2 Leigh, 321.
礤
​[128]
LECT. XLIV.]
* 95
OF PERSONAL PROPERTY.
refused, and the holder will be entitled to his interest and
costs, and like damages as in case of nonpayment. (a) The
English law requiring protest and notice of nonacceptance of
foreign bills has been adopted and followed as the true rule of
mercantile law in the states of Massachusetts, Connecticut, New
York, Maryland, Virginia, North Carolina, and South Carolina. (b)
But the Supreme Court of the United States, in Brown v. Bar-
ry, (c) and in Clarke v. Russell, (d), held, that in an action on
a protest for nonpayment on a foreign bill, protest for non-
acceptance, or a notice of the nonacceptance, need not be shown,
inasmuch as they were not required by the customs of merchants
in this country, and those decisions have been followed in Penn-
sylvania; protest for nonpayment is sufficient. (e) It becomes,
therefore, a little difficult to know what is the true rule of the
law-merchant of the United States on this point, after such con-
tradictory decisions. The Scotch law is the same as the Eng-
lish; (f) and it appears to me that the English rule is the better
doctrine, and the most consistent with commercial policy.
(a) Milford v. Mayor, Doug. 55; Ballingalls v. Gloster, 3 East, 481; Wallace v.
Agry, 4 Mason, 336; Evans v. Gee, 11 Peters, 80; Evans v. Bridges, 4 Porter (Ala.),
348; Whitehead v. Walker, 9 M. & W. 506; Mason v. Franklin, 3 Johns. 202;
Story on Bills, [§ 321.] In Mississippi, by statute, no suit lies on protest for non-
acceptance merely, before the maturity of the bill. Sadler v. Murrah, 3 How. [Miss.]
195. So, by the French law, the holder of a bill is bound to present it for payment
at its maturity, though already protested for nonacceptance. The protest for non-
acceptance only obliges the drawer and indorsers, on due notice, to give security for
payment of the bill when due, if not then paid. Code de Com. art. 120; Pothier, de
Change, n. 133. But if a bill be drawn on France and indorsed in New York, the
indorser is liable forthwith on protest for nonacceptance, though never presented for
payment in France. The law of the place of the indorsement governs the liability
of the indorser. Aymar v. Sheldon, 12 Wend. 439; Pardessus, Droit Com. v. art.
1488-1499; Chitty on Bills, 505, 506; Story on Promissory Notes, 404-408. This
is the true rule, though the case of Rothschild v. Currie, 1 Q. B. 43, is to the
contrary.
(b) Watson v. Loring, 3 Mass. 557; Sterry v. Robinson, 1 Day, 11; Mason v.
Franklin, 3 Johns. 202; Weldon v. Buck, 4 id. 144; Winthrop v. Pepoon, 1 Bay,
468; Phillips v. M'Curdy, 1 Harr. & J. 187; Thompson v. Cumming, 2 Leigh, 321;
1 Hawks, 195. The French and German law is the same. Heineccius and Pardessus,
cited in Story on Bills, [§ 274. But see Walker v. Stetson, 19 Ohio St. 400; Smith
v. Roach, 7 B. Mon. 17.]
(c) 3 Dallas, 365.
(d) Cited in 6 Serg. & R. 358.
(e) Read v. Adams, 6 Serg. & R. 356. Mr. Justice Story (Story on Bills, [§ 273,
n.]) says that the early decisions of the Supreme Court, if now held to be law, would
be so held only on the ground of the local law of Pennsylvania, as to bills drawn or
payable there.
(ƒ) 1 Bell's Comm. 408.
VOL. III.
9
[129]
95
[PART V.
OF PERSONAL PROPERTY.
If the bill has been accepted, demand of payment must be made
on the day when the bill falls due; and it must be made by the
holder or his agent upon the acceptor, at the place appointed for
payment, or at his house or residence, or regular known place
of his moneyed business, or upon him personally if no particular
place be appointed; and it cannot be made by letter through the
post-office. (g)¹ In default of payment, in whole or in part, pro-
1
(g) Saunderson v. Judge, 2 H. Bl. 509; Stedman v. Gooch, 1 Esp. 3; Berkshire
Bank v. Jones, 6 Mass. 524; State Bank v. Hurd, 12 id. 172; Mason v. Franklin,
8 Johns. 202; Whittier v. Graffam, 3 Greenl. 82; Stuckert v. Anderson, 3 Whart.
116; Lenox v. Roberts, 2 Wheat. 373; Mills v. Bank of U. S. 11 id. 431; Chitty, on
Bills, 402; Code de Com. art. 161; Sussex Bank v. Baldwin, 2 Harr. (N. J.) 487.
The rule in general is, unless otherwise required by statute that the place of pay-
ment need not be expressly stated in the bill; and it will be implied, in the absence
of all controlling circumstances, to be by law the place of residence of the drawee,
1 Lex Loci. - The rule approved by
the author in note (a) is applied in Eng-
land to the liability of the drawer. Allen
v. Kemble, 6 Moore, P. C. 314; Gibbs v.
Fremont, 9 Exch. 25. See, also, Conahan
v. Smith, 2 Disney, 9; Hunt v. Standart,
15 Ind. 33; ib. 49, 160; Artisans' Bank
v. Park Bank, 41 Barb. 599; Short v.
Trabue, 4 Met. (Ky.) 299; Trabue v.
Short, 18 La. An. 257; Trabue v. Short,
5 Coldw. 293; Lee v. Selleck, 33 N. Y.
615. See Vanzant v. Arnold, 31 Ga. 210.
But Rothschild v. Currie may be still law
in England, on the ground that the place
where the bill is payable governs as re-
gards protest and notice of dishonor.
Hirschfeld v. Smith, L. R. 1 C. P. 340,
351; Ellis v. Commercial Bank of Natchez,
7 How. (Miss.) 294, 303.
It has been held that the drawer of a
bill upon a New York drawee, drawn and
indorsed in New Granada, is liable to the
indorsee if the indorsement is good by the
law of New York, although invalid by
that of New Granada. If this case is
rightly decided, the operation of the in-
dorsement as a contract, and the extent
of the liability which it imposes on the
indorser, will be determined by one law,
as shown by the cases cited above, and
its operation as a conveyance will be de-
termined by another, and this seems to
be the opinion of the Court of Appeals.
Everett v. Vendryes, 19 N. Y. 436; 25
Barb. 383. See Ives v. Farmers' Bank,
2 Allen, 236.
With regard to the liability of the
acceptor, it is held that an indorsee of a
bill drawn, accepted, and payable in
England, can sue the acceptor there if
the indorsement was valid by English
law, although it was made in France and
invalid there. Lebel v. Tucker, L. R. 3
Q. B. 77; Everett v. Vendryes, 25 Barb.
383. But when a bill was drawn in France
and accepted in England, and indorsed
in blank in France, it was held by the
Court of Common Pleas that the accept-
or's contract was only to pay the drawer
or the person to whom the drawer had
made a valid transfer of his rights; and
that as, according to Trimbey v. Vignier,
the indorsement did not transfer the draw-
er's right of action or to the bill, the in-
dorsee could not sue in his own name.
The decision was reversed in the Ex-
chequer Chamber on the sole ground that
Trimbey v. Vignier took a wrong view
of the French law. Bradlaugh v. DeRin,
L. R. 3 C. P. 538; L. R. 5 C. P. 473.
236.
►
See Ives v. Farmers' Bank, 2 Allen,
[130]
LECT. XLIV.]
* 96
OF PERSONAL PROPERTY.
*
test must be forthwith made, by a notary, at the place of pay-
ment, and under the formalities prescribed at that place, as in the
case of protest for nonacceptance, and it must be made on
the last day of grace. (h) But there is a great deal of per- *96
plexity and confusion in the cases on this subject, arising
from refined distinctions and discordant opinions; and it becomes
very difficult to know what is precisely the law of the land as to
the sufficiency of the demand upon the maker of the note, or the
acceptor of the bill. If there be no particular and certain plaçe
identified and appointed, other than the city at large, and the
party has no residence there, the bill may be protested in the
city on the day without inquiry, for that would be an idle at-
tempt. (a) The general principle is, that due diligence must be
used to find out the party and make the demand; and the inquiry
will always be, whether, under the circumstances of the case, due
diligence has been used. The agent of the holder in one case
used the utmost diligence for several weeks to find the residence
of the indorser, in order to give him notice of the dishonor of the
bill, and then took a day to consult his principal before he gave
the notice, and it was held sufficient. (b) If the party has ab-
sconded, that will, as a general rule, excuse the demand. (c) ¹ If
or where his address is on the face of the bill. Story on Bills, [§ 48.] He says, again,
at [§ 235,] the general rule is, that presentment of a bill must be made at the place of
the domicile of the drawee, without any regard to its being drawn payable generally,
or payable at a particular place specified.
(h) Union Bank v. Hyde, 6 Wheat. 572; Bank of Rochester v. Gray, 2 Hill, 227 ;
1 Bell's Comm. [414], 415; Story on Bills, [§ 379.]
(a) Boot v. Franklin, 3 Johns. 207.
(b) Firth v. Thrush, 8 B. & C. 387. Delay in presentment or giving notice will
be excused, if produced by inevitable accident or obstruction. Story on Bills,
[§§ 231, 234.]
(c) Anon., 1 Ld. Raym. 743; Putnam v. Sullivan, 4 Mass. 45; 4 Serg. & R. 480;
Lehman v. Jones, 1 Watts & S. 126.
1 Place of Presentment. The text is
confirmed by Ratcliff v. Planters' Bank, 2
Sneed, 425. But see Pierce v. Cate, 12
Cush. 190; (where Putnam v. Sullivan,
sup. n. (c), is treated as overruled by Sand-
ford v. Dilloway, post, 110, n. (d);) Grafton
Bank v. Cox, 13 Gray, 503; Sands v.
Clarke, 8 C. B. 751; post, 109, n. 1, & 110.
In the case of a mere removal out of the
state, it has been held that presentment at
the payer's former place of residence is
unnecessary. Gist v. Lybrand, 3 Ohio,
308; Foster v. Julien, 24 N. Y. 28; Adams
v. Leland, 30 N. Y. 309, 312. But the fact
that a note, made and indorsed by persons
residing, and known by the holder to reside,
in a foreign country, is dated in New York,
does not dispense with demand at the
maker's place of residence and notice to
the indorser. Spies v. Gilmore, 1 Comst.
[131]
* 96
[PART V.
OF PERSONAL PROPERTY.
he has changed his residence to some other place within the
same state or jurisdiction, the holder must make endeavors to
find it, and make the demand there; though if he has removed
out of the state subsequent to the making of the note or accept-
ing the bill, it is sufficient to present the same at his former place
of residence. (d) If there be no other evidence of the maker's
residence than the date of the paper, the holder must make in-
quiry at the place of the date; (e) and the presumption is, that
(d) Anderson v. Drake, 14 Johns. 114; M'Gruder v. Bank of Washington,
9 Wheat. 598; Bayley on Bills, ed. Boston, 126; Gillespie v. Hannahan, 4 M'Cord,
503; Reid v. Morrison, 2 Watts & S. 401; Story on Bills, [§§ 346, 352;] Wheeler v.
Field, 6 Met. 290.
(e) Fisher v. Evans, 5 Binney, 541; Lowery v. Scott, 24 Wend. 358; [White
v. Wilkinson, 10 La. An. 394; Smith v. Philbrick, 10 Gray, 252.] And if the
321; affirming s. c. 1 Barb. 158; Bank of
Orleans v. Whittemore, 12 Gray, 469.
Compare the cases added to note (e).
With regard to the requirement to
prove demand at a particular place, the
distinction taken by the American cases
is that indicated in 99, n. (d), that in an
action against the acceptor or maker, no
demand at that place need be proved,
and if the promisor was present there
with the money, it is matter of defence.
Carter v. Smith, 9 Cush. 321; McKenzie
v. Durant, 9 Rich. 61; New Hope Del. B.
Co. v. Perry, 11 Ill. 467; Hunt v. Divine,
37 Ill. 137; Wood v. Merchants' S. L. & T.
Co., 41 Ill. 267; Games v. Manning, 2
Greene (Iowa), 251; Eaton & Hamilton
R.R. v. Hunt, 20 Ind. 457; Andrews v.
Hoxie, 5 Tex. 171; Thiel v. Conrad, 21
La. An. 214. But see Sands v. Clarke, 8
C. B. 751. But to charge a drawer or
indorser presentment and demand at the
place specified is necessary. Inf. 99 & n.
(d); Chicopee Bank v. Philadelphia Bank,
8 Wall. 641, 648; Magoun v. Walker, 49
Me. 419; Moore v. Britton, 22 La. An.
64; Goodlet v. Britton, 6 Blackf. 500;
Seneca County Bank v. Neass, 5 Denio,
329. See Harwood v. Jarvis, 5 Sneed,
375, 378, questioned 1 Pars. N. & B. 545,
n. (m). When, however, the instrument
is made payable at any bank in a certain
place, presentment at any such bank is
sufficient to charge the indorser, without
notice to the maker of the bank selected.
Langley v. Palmer, 30 Me. 467; Malden
Bank v. Baldwin, 13 Gray, 154.
A presentment for payment of a bill
accepted generally, at the place of busi-
ness of a merchant acceptor is sufficient,
and if his counting-room is closed during
business hours of the day when the bill
falls due, it is presumed to be done inten-
tionally, and the bill may be protested
for nonpayment without inquiries else-
where. Wiseman v. Chiappella, 23 How.
368. See West v. Brown, 6 Ohio St.
542; Grafton Bank v. Cox, 13 Gray, 503;
and compare Allen v. Edmundson, 2 Exch.
719, 723, as to the similar duty of a mer-
chant to be ready at his place of business
to receive notice of dishonor. Post, 109,
n. 1.
With regard to the rule stated at the
beginning of p. 98, see Gillett v. Averill, 5
Denio, 85; Merchants' Bank v. Elderkin,
25 N. Y. 178; Bank of Syracuse v. Hol-
lister, 17 N. Y. 46; Hallowell v. Curry, 41
Penn. St. 322; Browning v. Andrews, 3
McL. 576. But the physical presence of
the bill at a bank where it is payable will
not amount to a demand if the fact was
never known by the bank. Chicopee
Bank v. Philadelphia Bank, 8 Wall. 641.
[132]
LECT. XLIV.]
* 97
OF PERSONAL PROPERTY.
the maker resides where the note is dated, and that he contem-
plated payment at that place. (ƒ) But it is presumption
*
only; and if the maker resides elsewhere within the state *97
when the note falls due, and that be known to the holder,
demand must be made at the maker's place of residence. (a)
The rule in the English law is, that if a bill or promissory note
be made payable at a particular place, the demand must be made
at the place, because the place is made part and parcel of the con-
tract. (b) If, however, the place appointed be deserted or shut
up, it amounts to a refusal to pay, and a demand would be in-
audible and useless; (c)¹ or if the demand be made upon the
maker elsewhere, and no objection be made at the time, it will
be deemed a waiver of any future demand. (d)
1
In New York it has been decided, that though a bill or note
be made payable at a particular place, it is not requisite for the
holder to aver or prove a demand of payment at the place. (e)
domicile of the maker be in one state, and he dates and makes the note in another,
payment may be demanded at the place of date, if the maker has no known place of
business in the state. Story on Promissory Notes, 282, § 236; Taylor v. Snyder,
[3 Denio, 145.]
(ƒ) Stewart v. Eden, 2 Caines, 127; Duncan v. M'Cullough, 4 Serg. & R. 480;
Lowery v. Scott, 24 Wend. 358.
(a) Anderson v. Drake, 14 Johns. 114; Galpin v. Hard, 3 M'Cord, 394. In North
Carolina, indorsers of promissory notes are held liable as sureties, and no previous
demand on the maker is requisite. But this provision does not apply to inland or
foreign bills of exchange. Revised Statutes of N. C. 1837, i. 95.
(b) Saunderson v. Judge, 2 H. Bl. 509; Sanderson v. Bowes, 14 East, 500;
Dickinson v. Bowes, 16 id. 110; Butterworth v. Le Despencer, 3 M. & S. 150; Gibb
v. Mather, 8 Bing. 214; Hart v. Long, 1 Rob. (La.) 83, s. p. ; ib. 311.
(c) Howe v. Bowes, 16 East, 112.
(d) Herring v. Sanger, 3 Johns. Cas. 71; Mason v. Franklin, 3 Johns. 202; Boot
v. Franklin, ib. 208. [King v. Holmes, 11 Penn. St. 456.]
(e) Wolcott v. Van Santvoord, 17 Johns. 248; Caldwell v. Cassidy, 8 Cowen, 271;
Haxtun v. Bishop, 3 Wend. 13. But if the maker was ready to pay at the time and
place specified, that would be matter of defence. The same doctrine is held in Carley
v. Vance, 17 Mass. 389; Bacon v. Dyer, 3 Fairfield, 19; Remick v. O'Kyle, ib. 340;
Weed v. Van Houten, 4 Halst. 189; Conn v. Gano, 1 Ohio, 483; M'Nairy v. Bell,
1 Yerger, 502; Mulherrin v. Hannum, 2 id. 81; Irvine v. Withers, 1 Stewart (Ala.),
234, and in Wallace v. M'Connell, 13 Peters, 136. And it is so declared by statute
in Indiana, in 1836. But in Louisiana, after a full discussion, the English rule men-
tioned in the text has been adopted as most convenient and most agreeable to the
contract. Mellon v. Croghan, 15 Martin, 423; 12 La. 454; Carillo v. Bank of U. S.,
10 Rob. 533. See, also, in the case of The Bank of Wilmington v. Cooper, in Dela-
ware, the English rule was followed; 1 Harr. 10. Mr. Justice McLean, in Thompson
1 DeWolf v. Murray, 2 Sandf. 166; ante, 96, n. 1.
[133]
98
[PART V.
OF PERSONAL PROPERTY.
This would appear to be contrary to the rule as now understood
and established in the English law; and it would seem to be
contrary to the opinion of the Court of Errors of New York, in
the case of Woodworth v. The Bank of America, (ƒ) where the
rule of the English law was recognized, that if the place of pay-
ment be designated in the note, demand must be made there.
*98 But if the person at whose *place or house the note or bill
is made payable be the holder of the paper, in that case it
has been held, by the Supreme Court of the United States, (a)
to be sufficient for the holder to examine the accounts, and ascer-
tain that the party who is to pay there has no funds deposited.
The maker or acceptor is in default by not appearing and paying,
and no formal demand is necessary. The cases of Saunderson v.
Judge and Berkshire Bank v. Jones (b) were deemed to be con-
trolling authorities on the point. If the defendant was ready to
pay at the time and place designated in the note for payment, it
is a matter of defence, and will go to discharge him from interest
and costs. (c) The case of Caldwell v. Cassidy (d) adopted a
further distinction on this already subtle and embarrassing point,
and held, that though, in the case of a note payable at a partic-
ular place, demand at that place need not be averred, yet if the
note be made payable on demand at a particular place, a demand
must be made at the place before suit brought. With respect to
the addition of memoranda to a bill or note, designating the place
of payment, there have been much litigation and difficulty in the
cases. It is stated as a general rule, (e) that a memorandum
v. Cook, 2 McL. 125, considered the law to now be well settled, that where a note was
payable at a particular place, it was not necessary to aver in the declaration, or
prove at the trial, a demand of payment at the place.
(f) 19 Johns. 391.
(a) United States Bank v. Smith, 11 Wheat. 171; United States Bank v. Carneal,
2 Peters, 543.
(b) 2 H. Bl. 509; 6 Mass. 524; Rahm v. Philadelphia Bank, 1 Rawle, 335, s. p.
The note itself must be present, ready for surrender, when the demand for payment
is made, and in default of it the demand will be insufficient to fix the indorser.
Eastman v. Potter, 4 Vt. 313.
(c) Haxtun v. Bishop, 3 Wend. 13. So, if the holder was ready at the place to
receive payment, no further demand is necessary to charge the indorser. Jenks v.
Doylestown Bank, 4 Watts & S. 505.
(d) 8 Cowen, 271. [State Bank v. Cape Fear Bank, 13 Ired. 75.]
(e) Bayley on Bills, 25. [Masters v. Baretto, 8 C. B. 433. See Bowling v. Har-
rison, 6 How. 248, 259; Troy City Bank v. Lauman, 19 N. Y. 477, 480; Bailey v.
Bodenham, 16 C. B. N. s. 288, 297. As to the effect of" mem." on the face of a
[134]
LECT. XLIV.]
1
OF PERSONAL PROPERTY.
* 99.
upon a note, as to where it should be payable, was not a part of
it; and in Exon v. Russell, (f) such a memorandum at the bot-
tom of the note was held to be no part of it. On the other hand,
in Cowie v. Halsall, (g) after a bill had been accepted generally,
the drawer, without the consent of the acceptor, added a
place of payment; and it was held, that the condition was 99
a material variation, and discharged the acceptor. In the
case of The Bank of America v. Woodworth, (a) a note was indorsed
for the accommodation of the maker, and returned to him to be
negotiated. It had no place of payment, and before the maker
had parted with it he added in the margin a place of payment,
and negotiated it, and the bona fide holder made the demand there.
The Supreme Court held, that the memorandum was no part of
the contract, but merely an intimation to the holder where to look
for the maker and his funds. But the Court of Errors decided
otherwise, and overturned this very reasonable, and established
the very rigorous doctrine, that the memorandum was, in that
case, a material alteration of the contract, which discharged
the indorser. The Supreme Court of New York have since
decided, (b) that where the indorser commits a negotiable note
to the maker, with a blank for the date, or sum, or time of pay-
ment, there is an implied agency given by the indorser to the
maker to fill up the blanks. The principle of the decisions in
Massachusetts is, that if the indorsement be made at the time of
making the note, the indorser is to be treated as an original
promisor, because he is supposed to participate in the consid-
eration. (c)¹
If a bill of exchange, though drawn generally, be accepted,
payable at a particular place, it is a special or qualified accept-
ance, which the holder is not bound to take; but if he does take
it, the demand must be made at the place appointed, and not
elsewhere, in order to charge the drawer or indorser. This is
check, compare Skillman v. Titus, 3 Vroom, 96, with Dykers v. Leather Man. Bank,
11 Paige, 612.]
(ƒ) 4 M. & S. 505; Williams v. Waring, 10 B. &. C. 2, s. p.
(g) 4 B. & Ald. 197; Desbrowe v. Wetherby, 1 Moody & R. 438, s. p.; Nazrc v.
Fuller, 24 Wend. 374, s. p.
(a) 18 Johns. 315; s. c. 19 Johns. 391.
(b) Mitchell v. Culver, 7 Cowen, 336; Mechanics & Farmers' Bank v. Schuyler,
ib. 337, note.
(c) Parker, C. J., in Tenney v. Prince, 4 Pick. 385.
1 Ante, 89, n. 1.
[135]
* 99
[PART V.
OF PERSONAL PROPERTY.
the plain sense of the contract, and the words accepted payable
at a given place are equivalent to an exclusion of a demand else-
where. (d) 2
(d) Mullen v. Croghan, 15 Martin, 424; Gale v. Kemper, 10 La. 208; Warren v.
Allnutt, 12 id. 454. But see supra, 97, and infra, 101, where the weight of American
decisions is otherwise. If, however, a demand be made of payment at the place
designated in the bill or note, and refused, it is sufficient. Story on Bills, pp. 419,
420. This point has been the subject of great litigation and discussion in the Eng-
lish courts, and judges of high professional character, and of great professional
learning, have entertained directly opposite opinions on the question. In Ambrose
v. Hopwood, 2 Taunt. 61, the C. B. held, that the bill must be presented at the place
specified in the acceptance, and not elsewhere. This was in 1809. In Callaghan v.
Aylett, 3 Taunt. 397, in 1811, the same court followed the same doctrine, and, after
more discussion, declared that where the bill was accepted, payable at a particular
place, it was a qualified acceptance, and the presentment must be averred and proved
to have been made there. There may, in the act of acceptance, be a qualification of
the place, as well as of the time of acceptance. In Fenton v. Goundry, 13 East, 459, in
1811, the same question arose in the K. B., and was decided differently; and it was
held, that though the bill was accepted payable at a place certain, it was still to be
taken to be payable generally and universally, and wherever demanded. Afterwards,
in Gammon v. Schmoll, 5 Taunt. 344, the Court of C. B., notwithstanding the decision
of the K. B., adhered with determined purpose to their former doctrine; and in Bowes
v. Howe, on error from the K. B., into the Exchequer Chamber, 5 Taunt. 30, the doc-
trine of the C. B. was established. It being of great importance to the mercantile
world that the law on this subject should be fixed and known, the same point was
brought into review before the House of Lords, in 1820, in the case of Rowe v. Young,
2 Brod. & B. 165, and the opinions of the twelve judges were taken for the informa-
tion of the Lords. The point was elaborately discussed in the separate opinions of the
judges, which displayed all the learning and acuteness of investigation of which such a
narrow and dry question was susceptible. A majority of the judges were in favor of the
opinion of the K. B., and they held, that such a special acceptance need not be averred
and proved in the first instance, and that the nonpresentment at the place was matter
of defence, and to be taken advantage of in pleading. But Lord Eldon and Lord
Redesdale, and four out of the twelve common-law judges were of opinion that such
a qualified acceptance must be averred, and presentment according to it proved; and
that opinion prevailed. The House of Lords reversed the judgment of the K. B.,
and overthrew their doctrine, and established the rule, that if a bill of exchange be
accepted, payable at a particular place, it was necessary to aver and prove present-
ment of the bill at that place, and the party so accepting is not liable to pay on a
demand made elsewhere. The defendant was not to be subjected to the inconven-
ience of pleading. a tender, and bringing the money into court. Lord Eldon's opinion,
in the House of Lords, was distinguished for being clear, nervous, pertinent, logical,
and conclusive; and he very well observed, that he could not understand the good
sense of the distinction of the K. B., that if a promissory note be payable at a par-
ticular place, the demand must be made there, because the place, being in the note, is
a part of the contract; but if a bill be accepted, payable at a particular place, it
is not part of the acceptance, and the presentment need not be made there. Soon
As to the matters discussed in the note
(d), see 96, n. 1.
2 Troy City Bank v. Lauman, 19 N. Y.
447; Myers v. Standart, 11 Ohio St. 29.
[136]
LECT. XLIV.]
* 100
OF PERSONAL PROPERTY.
*Three days of grace apply equally, according to the *100
custom of merchants, to foreign and inland bills and
after this decision was made, the statute of 1 and 2 George IV. c. 77, was passed,
declaring that an acceptance, payable at a particular place, had the effect of a gen-
eral acceptance, and the holder was not bound to present the bill at any particular
place, and the acceptor might be called on elsewhere, as well as at the place indi-
cated. So far the rule was thrown back by statute into the situation in which it was
placed by the K. B.; but the statute further provided, that if the bill was accepted,
payable at a specified place only, and not elsewhere, it was then to be considered a quali-
fied acceptance, and demand must be made at the specified place. The Supreme
Court of the United States, in the U. S. Bank v. Smith, 11 Wheat. 171, were inclined
to think that, as against the acceptor of a bill, or maker of a note, no averment or
proof of demand of payment at the place designated in the instrument was neces-
sary. They withheld a decided opinion on the point. But as against the indorser,
such demand and proof were held to be indispensable. Afterwards, in Wallace v.
M'Connell, 13 Peters, 136, the Supreme Court discussed the point upon a full exami-
nation of the American as well as English authorities, and settled the question. They
held, that where a bill or note was made payable at a specified time and place, it was
not necessary to aver in the declaration, or prove at the trial, that a demand for pay-
ment was made at the time and place. If the maker or acceptor was ready at the
time and place to pay, that was matter of defence. This may now be considered as
the law on the subject throughout the United States, (see supra, 97, and note (e);
and also Eldred v. Hawes, 4 Conn. 465; Payson v. Whitcomb, 15 Pick. 212;
Waite, J., in Jackson v. Packer, 13 Conn. 358; Sumner v. Ford, 3 Ark. 389,)
though Mr. Justice Story (Story on Bills, [§ 356, n.]) thinks that it is difficult
to maintain the doctrine upon principle; and in his Commentaries on Promis-
sory Notes, p. 274, he says, that as a judge he dissented from the opinion of the
Supreme Court, in 13 Peters, 136. In Fayle v. Bird, 2 Carr. & P. 303, it was held,
that on a bill drawn, payable in London, presentment must be made at some place
there; but it is stated in Selby v. Eden, 11 Moore, 518, that presentment need not be
averred in the declaration. In Indiana they follow the rule, that if a promissory note
be payable at a particular place, a demand of payment at that place must be averred
and proved. 1 Blackf. 328. As evidence of the endless refinements and distinctions
on this subject, we may refer to the case of Mitchell v. Baring, (4 Carr. & P. 35; 10
B. & C. 4, s. c.) where it was held, that if a bill, payable in London, be accepted for
honor, to be paid if protested and refused when due, it must be protested at Liver-
pool, where the drawee resided. This decision led to the statute of 2 & 3 Wm.
IV. c. 98, by which protest for nonacceptance of bills payable at any place other
than the place therein mentioned as the residence of the drawee, may, without fur-
ther presentment to the drawee, be protested for nonpayment in the place expressed
by the drawer to be payable. In Picquet v. Curtis, 1 Sumner, 478, Mr. Justice Story
considered the principle settled by the decision in the House of Lords, in the case of
Rowe v. Young, as irresistible, and that in the case of foreign or inland bills made
payable at a particular place, the demand and the dishonor must be there. But
the decision in 13 Peters, above cited, settled the question the other way, and the
whole current of American authorities, as referred to in that decision, are on the
same side. In Folger v. Chase, 18 Pick. 63, it was held, that if a note be payable
on demand at a specified bank, no demand need be made at any other place;
and if left at the bank for collection, no specific demand is necessary. S. P. Bank
U. S. v. Carneal, 2 Peters, 543; State Bank v. Napier, 6 Humph. 270. No demand
[137]
*102
[PART V.
OF PERSONAL PROPERTY.
promissory notes, and as between the indorser and indor-
*101 see of a negotiable *note; (a) and the acceptor or maker
has, within a reasonable time of the end of business, or
bank hours of the third day of grace (being the third day
*102 after the paper falls due) * to pay. It has been said, (a)
that the acceptor was bound to pay the bill on demand, on
any part of the third day of grace, provided the demand be made
within reasonable hours. Lord Kenyon thought otherwise. The
question will be governed, in a degree, by the custom of the
place; and if, in a commercial city, payments are made at banks,
they must be made within bank hours. The maker or acceptor
is entitled to the uttermost convenient time allowed by the
custom of business of that kind, in the place where the bill is
need be made even at the place, to charge the maker of a note payable at a particular
place, according to the law as declared in Arkansas. McKiel v. Real Estate Bank, 4
Pike, 592.
(a) Brown v. Harraden, 4 T. R. 148; Bussard v. Levering, 6 Wheat. 102; Linden-
berger v. Beall, ib. 104; Crenshaw v. M'Kiernan, Minor (Ala.), 295; Fleming v. Fulton,
6 How. (Miss.) 473. The period of grace varies in different countries. In France, by
the ordinance of 1673, tit. 5, art. 4, it was ten days; but by the new code, art. 135, all
days of grace are abolished. In Massachusetts, a promissory note was held not
entitled to grace, unless it be an express part of the contract. Jones v. Fales, 4 Mass.
245. But in 1824, by statute, the days of grace were given on all bills of exchange
payable at sight, or on a future day certain, within the state, and on promissory
negotiable notes, orders, and drafts, payable at a future day certain, within the state,
in like manner as on foreign bills by the custom of merchants. The provision does
not extend to bills, notes, or drafts payable on demand. The law was reenacted in
the Revised Statutes of 1836. See, also, Perkins v. Franklin Bank, 21 Pick. 483. In
the State of Maine, by statute of 1824, c. 272, the drawer of inland bills of exchange,
and the indorser of a promissory note, as well as the acceptor and maker, are entitled
to three days of grace, if the bill or note be discounted by a bank, or left there for
collection. Foreign bills are governed by the usage of merchants, and the acceptor
has the three days of grace without any statute provision. In Vermont, on the other
hand, the days of grace were taken away, by statute, in 1833. In New Hampshire, the
three days of grace are allowed to the maker of a negotiable note. Dennie v.
Walker, 7 N. H. 199. In Broddie v. Searcy, Peck (Tenn.), 183, the law-merchant and
the three days of grace were considered applicable to negotiable promissory notes,
and applied with as much accuracy and strictness as in the most commercial states.
The period of the days of grace is determined by the usage of the place on which
the bill is drawn, and where payment is to be made. Story on Bills, [§§ 177, 334;] 1
Bell's Comm. 411. And it may be considered as the common law-merchant throughout
the United States, in the absence of any particular or special usage to the contrary,
that three days of grace are allowed on bills of exchange and promissory notes.
This was so declared in Wood v. Corl, 4 Met. 203.
(a) Buller, J., 4 T. R. 174. The opinion of Buller, J., has been adopted in Greeley
v. Thurston, 4 Greenl. 479. See, also, Story on Bills, [§§ 236, 328;] Parker v. Gordon,
7 East, 385; Elford v. Teed, 1 Maule & S. 28; Chitty on Bills, 421.
[138]
LECT. XLIV.]
*102
OF PERSONAL PROPERTY.
presented, and he is not entitled to any further time. (b) If
the third day of grace falls on Sunday, or a great holiday, as the
Fourth of July, or a day of public rest, the demand must be made
on the day preceding. (c) The three days of grace apply equally
to bills payable at sight,¹ or at a certain time; (d) but a bill,
(b) It was held, in Osburn v. Moncure, 3 Wend. 170, that the maker had the
whole of the third day of grace to make payment, if he thinks proper to seek the
holder. So, if a presentment of a bill for payment be to a private individual, and
not to a bank or banker, it is sufficient to make the demand in the evening of the
day of payment. Triggs v. Newnham, 10 Moore, 249; Cayuga County Bank v.
Hunt, 2 Hill, 635; Story on Bills, [§ 349.] It is settled in Massachusetts, after a full
discussion, that the maker of a promissory note is bound to pay it upon demand
made at any seasonable or reasonable hour of the last day of grace, and may be sued
on that day if he fail to pay on such demand. The court, upon an examination of
authorities, say, that the weight of them is in favor of this conclusion. Staples v.
Franklin Bank, 1 Met. 43. This is also the settled rule in Maine, New Hampshire,
and South Carolina. [McKenzie v. Durant, 9 Rich. 61; Ammidown v. Woodman,
31 Me. 580; Veazie Bank v. Paulk, 40 Me. 109; Pine v. Smith, 11 Gray, 38, 40;
ante, 91, n. 1. (See Gordon v. Parmelee, 15 Gray, 413; Estes v. Tower, 102 Mass.
65.) Contra, Wiggle v. Thomason, 11 Smedes & M. 452.] This is equally the case
as to inland bills. Chitty on Bills, c. 9, p. 432; Ex parte Moline, 19 Ves. 216; Bur-
bridge v. Manners, 3 Camp. 193.
(c) Tassell v. Lewis, 1 Ld. Raym. 743; Jackson v. Richards, 2 Caines, 343; Lewis
v. Burr, 2 Caines Cas. 195; Bussard v. Levering, 6 Wheat. 102; Fleming v. Fulton,
6 How. (Miss.) 473; Statute of Massachusetts, 1838, c. 182; Act of Louisiana, 1838,
No. 52. The usage is settled in commercial matters, that if the day of payment falls
on Sunday, payment is to be made on Saturday; and in Kilgour v. Miles, 6 Gill &
Johns. 268, it was held that the same rule applied to all other contracts. But the
weight of authority is the other way, and in all contracts, except where the three
days of grace are allowed by the custom of merchants, if the day of performance
falls on Sunday, the performance may be on Monday. Avery v. Stewart, 2 Conn.
69; Salter v. Burt, 20 Wend. 205. By statute in Vermont, 1837, if a contract falls
due on Sunday, it is payable on Monday; and though a paper be not entitled to
grace, and falls due on Sunday, yet if by usage of the place such a note becomes pay-
able on the preceding Saturday, that usage prevails and governs. Osborne v. Smith,
N. Y. Superior Court, December, 1836; Kilgore v. Bulkley, 14 Conn. 362. Though
the days of grace may be shortened by the falling of the last day of grace on Sunday
or other holiday, they are never protracted by the intervention of such days. Story
on Bills, [§ 338.]
(d) Coleman v. Sayer, 1 Barnard. 303; Bayley on Bills, 151; Chitty on Bills,
344, 345; Dehers v. Harriot, 1 Show. 163; J'Anson v. Thomas, cited in Chitty on
Bills, [377.] On the other hand, though the weight of authority would seem greatly
to preponderate in favor of the rule as laid down in the text, yet it may be consid-
1 Hart v. Smith, 15 Ala. 807; Knott v.
Venable, 42 Ala. 186; Craig v. Price, 23
Ark. 633, Cribbs v. Adams, 13 Gray, 597.
Contra, Trask v. Martin, 1 E. D. Smith,
505. See Nimick v. Martin, 7 West. L. J.
380. The allowance of days of grace on
bills payable at sight is regulated by
statute in many states. Walsh v. Dart,
12 Wis. 635; Ball v. Sackett, 38 Cal. 407;
Spooner v. Rowland, 4 Allen, 485, 487.
[139]
* 103
[PART V.
OF PERSONAL PROPERTY.
*
*103 note, or check payable on demand, or where no time
of payment is expressed, is payable immediately on pre-
sentment, and is not entitled to the days of grace. (a) A bill,
payable at so many days' sight, means so many days after legal
sight or acceptance; (b) and when the time is to be computed by
days, as so many days after date, or after sight, the day of the
date of the instrument is, by the modern practice, excluded from
the computation. (c)
It is equally unseasonable to demand payment before the expi-
ration of the third day of grace, as after the day. (d) The demand
must be made on the third day of grace, or on the second, if the
third day be a day of public rest; and in default of such demand,
the drawer of the bill and the indorser of the note are dis-
charged. (e) If, however, a note be made for negotiation, at a
ered as a point not entirely settled, and a different rule is laid down in Beawes's L.
M. pl. 256; and in Kyd on Bills, 10. In France, while days of grace were allowed
under the ordinance of 1673, Pothier agreed with M. Jousse, in his commentary, that
a bill payable at sight had no days of grace; and he justly observed, that it would
be unreasonable and inconvenient for a person who takes a draft, for his accommo-
dation, on a journey, payable at sight, to be obliged to wait the days of grace for his
money. Traité du Con. de Change, art. 172.
(a) Cammer v. Harrison, 2 M'Cord, 246; Bayley on Bills, 141; Chitty on Bills,
5th ed. 336, 345; Sommerville v. Williams, 1 Stewart (Ala.), 484. So if a note be
payable on 1st May fixed, it means that no days of grace are intended, and there are
none allowed. Durnford v. Patterson, 7 Martin (La.), 460.
(b) Mitchell v. Degrand, 1 Mason, 176. If a bill payable at so many, say sixty
days' sight, be accepted, payable on a given day, say November 3d, in which the three
days of grace were in fact included, though the day of acceptance did not appear on
the bill, the demand is to be made on the day specified in the acceptance. The
acceptor is bound to that day, and it being, in point of fact the true day, the drawer
and indorsers would also be bound, on protest and due notice of default of payment
on that day. Kenner and Others v. Their Creditors, 20 Martin (La.), 36; 1 La.
280, s. c.
(c) Bayley on Bills, 155; Chitty on Bills, 406, 412; Story on Bills, [§§ 329, 335.]
A note payable by instalments is a good negotiable note, and the maker is entitled
to the days of grace upon the falling due of each instalment. Oridge v. Sherborne,
11 M. & W. 374.
(d) No usage or agreement, tacit or express, of the parties to a note, will accel-
erate the time of payment, and bind the maker to pay it at an earlier day than that
fixed by law. Mechanics' Bank v. Merchants' Bank, 6 Met. 13.
(e) Coleman v. Sayer, Str. 829; Wiffen v. Roberts, 1 Esp. 261; Leavitt v. Simes,
As to checks, see 88, n. 1. As to the
effect of lapse of time without demand on
paper payable on demand, see 91, n. 1.
Keyes v. Fenstermaker, 24 Cal. 329;
Goodwin v. Davenport, 47 Me. 112;
Chartered Merc. Bank of India, L., and
China v. Dickson, L. R. 3 P. C. 574.
[140]
LECT. XLIV.]
* 104
OF PERSONAL PROPERTY.
bank whose custom is to demand payment, and to give notice on
the fourth day, that custom forms a part of the law of the con-
tract, and the parties are presumed to agree to be governed,
*
in that case, by the usage. (f) The same rule applies *104
when a bank, by usage, treats a particular day as a holiday,
though not legally known as such, and make demands, and gave
notice, on the day preceding; the parties to a note discounted
there, and conusant to usage, are bound by it. (a) Though a
bill, payable at a given time, has never been presented to the
drawee for acceptance, the demand upon the drawee for payment
is to be made on the third day of grace; for, by the usage of the
commercial world, which now enters into every bill and note of
a mercantile character, except where it is positively excluded, a
bill does not become due on the day mentioned on its face, but
on the last day of grace. (b)
7. Of Notice to Drawer and Indorser.
There is no part of the
learning relating to negotiable paper that has been more critically
discussed, or in which the rules are laid down with more pre-
cision, than that which concerns the acts requisite to fix the
responsibility of the drawer and indorsers, and the acts and
omissions which will operate to discharge them.
True policy
consists in establishing some broad, plain rules, easy to be under-
stood, and steady in their obligation.
The holder must not only show a demand, or due diligence to
get the money of the acceptor of the bill or check, and of the
maker of the note, but he must give reasonable notice of their
default to the drawer and indorsers, or to their regularly author-
3 N. H. 14; Mills v. United States Bank, 11 Wheat. 431. A bill, payable at so many
days after date, must be presented by the period of its maturity. If payable on
demand, or at sight, or at so many days after sight, it must be presented in a reason-
able time, under the circumstances. Story, J., 4 Mason, 345; Story on Bills, [§ 325.]
In Grant v. Long, 12 La. 402, it was held, that a bill of exchange, payable ninety
days after date, must be presented for payment the day it became due, or the
drawer would be discharged. The court held to the rule so strictly, as not even to
admit any excuse, even of two days from the last day of grace, derived from the
irregularities of the mail. See supra, p. 82.
·
(f) Renner v. Bank of Columbia, 9 Wheat. 581; Mills v. United States Bank, 11
id. 431; Bank of Washington v. Triplett, 1 Peters, 25; Bank of Columbia v. Fitz-
hugh, 1 Harr. & G. 239; Planters' Bank v. Markham, 5 How. (Miss.) 397; s. P.
6 Harr. & J. 180; 14 Mass. 303; 17 id. 452; 8 Conn. 489.
(a) City Bank v. Cutter, 3 Pick. 414.
(b) Bank of Washington v. Triplett, 1 Peters, 25.
[141]
* 105
[PART V.
OF PERSONAL PROPERTY.
ized agent, to entitle himself to a suit against them. (c)
*105 The indorser, to whom notice *is duly given, is liable,
although notice be not given by the holder to the drawer,
or a prior indorser, and this is the case equally as to foreign and
inland bills and checks. The indorsement is equivalent to making
a new bill, and the holder may resort to him, without calling on
any of the other parties; and it is the business of the indorser,
on receiving notice, to give like notice to the drawer, and all
(c) Heylyn v. Adamson, 2 Burr. 669; Rushton v. Aspinall, Doug. 679; Williams
v. United States Bank, 2 Peters, 96. The demand and notice to the indorser are
equally requisite, though he indorse the note after it is due. Stockman v. Riley,
2 M'Cord, 398; Poole v. Tolleson, 1 id. 199. Notice to an agent having general
power to transact the business of his principal is good, if the principal be abroad, but
not if the agent has only certain special powers. De Lizardi v. Pouverin, 4 Rob.
(La.) 394. Notice to the legal representative is good, if the party be dead, and the
notary does not know who is the executor or administrator. Pillow v. Hardeman,
3 Humph. 538. Notice is not good unless a protest of the bill or note precede the
not[icle. Union Bank of Louisiana v. Fonteneau, 12 Rob. (La.) 120. In Harker v.
Anderson, 21 Wend. 372, Mr. Justice Cowen concludes upon a critical examination
of the cases, that a check is, to all essential purposes, a bill of exchange, and that the
holder must use due diligence to present it to the drawee for payment, before he
can charge either the drawer or indorser, both of whom stand in the light of sureties;
that nothing would excuse the want of this diligent presentment but the absence of
funds in the hands of the drawee when the check was drawn, or fraud in the drawer
in abstracting the funds. The court itself gave no opinion on the point. But I
apprehend that this doctrine as to checks may be questioned. A check differs from
a bill of exchange in several particulars. It has no days of grace, and requires no
acceptance distinct from prompt payment. The drawer of a check is not a surety,
but the principal debtor, as much as the maker of a promissory note. It is an abso-
lute appropriation of so much money in the hands of the banker to the holder of
the check, and there it ought to remain until called for, and the drawer has no reason
to complain of delay, unless upon the intermediate failure of his banker. By unrea-
sonable delay in such a case, the holder takes the risk of the failure of the person or
bank on which the check is drawn. This is quite distinct from the strict rule of
diligence applicable to a surety, in which light stands the indorser. See Story on
Promissory Notes, [§§ 490, 498, n.] to the same point. It is true, however, that there
is so much analogy between checks and bills of exchange, and negotiable notes, that
they are frequently spoken of without discrimination, as see ante, 75, 77, 78, 104.
Since the above case in 21 Wendell, the distinction between checks and notes has
been judicially settled in Little v. Phoenix Bank, 2 Hill (N. Y.), 425, and held, that as
between drawer and holder of a check, delay in presenting it did not discharge the
maker, unless loss be shown; but that between the holder and indorser of a check,
the usual diligence was requisite. The case of Kemble v. Mills, 1 Mann. & G. 757,
is to the same effect, and that want of notice of the dishonor of a check is excused,
if the maker had no right to draw, or the holder had received no damage from want of
notice. s. P. Robinson v. Hawksford, [9 Q. B. 52.¹]
1 As to the law of checks, see 88, n. 1; 78, n. 1; 91, n. 1.
[142]
LECT. XLIV.]
*105
OF PERSONAL PROPERTY.
persons to whom he means to resort. (a) The object of the
notice is to afford an opportunity to the drawer and indorsers to
obtain security from those persons to whom they are entitled to
resort for indemnity. Notice to one of several partners, or to one
of several joint drawers or indorsers, is notice to them all. (b) 1
(a) Bomley v. Frazier, Str. 441; Heylyn v. Adamson, 2 Burr. 669; Rickford v.
Ridge, 2 Camp. 539; Chitty on Bills, c. 10, 530.
(b) Porthouse v. Parker, 1 Camp. 82; Harris v. Clark, 10 Ohio, 5. Judge Story,
in his Treatise on Bills, [§§ 305, 362, 389,] says, that notice to each joint drawer or
indorser, if they be not partners, is requisite to bind them, and that notice to one is
not sufficient for all. The case before Lord Ellenborough is one where the bill was
accepted by one of three defendants, who do not appear by the case to be mercantile
partners, and the dishonor of it was of course known to him, and the Chief Justice
said, that the knowledge of one was the knowledge of all. The case is very brief
and loose; but the decision in Ohio was to the very point, and on due consideration,
the court said, that the three joint and several promisors were in the light of partners
in that particular transaction. But still I think it may be questioned whether the
better doctrine be not in favor of notice to each joint maker or drawer, when they
are not regular partners. That is the judgment, after an elaborate discussion in
Shepard v. Hawley, 1 Conn. 367; and see, also, Bank of Chenango v. Root, 4
Cowen, 126; Willis v. Green, 5 Hill (N. Y.), 232; Union Bank v. Willis, 8 Met. 504;
Dabney v. Stidger, 4 Smedes & M. 749, to the s. P.; Story on Promissory Notes,
[§ 255]. The holder of the bill or note is not bound to give notice of nonpayment
to any of the indorsers, except those he intends to charge, and the indorser who has
notice must give his prior indorsers notice, if he intends to look to them for
indemnity. Bayley on Bills, 228; Valk v. Bank of the State, McMullan, Eq. 414;
Carter v. Bradley, 19 Me. 62. Mr. Justice Story (Story on Bills, [§ 272]) is of
opinion that in the case of a qualified or conditional acceptance, a due protest and
notice to the antecedent parties is still requisite in order to bind them, though the
conditions be complied with before the bill becomes payable. For this he cites
Pothier, (De Change, n. 47, 48,) in opposition to Bayley and Chitty on Bills.
•
1 Notice. Who should receive. The
text is confirmed as to partners by Bouldin
v. Page, 24 Mo. 594; and if one dies, notice
should be given to the survivor to bind
the firm; Slocomb v. Lizardi, 21 La. An.
355; and to the executor of the deceased
to bind him. Cocke v. Bank of Tennessee,
6 Humph. 51. But as suggested in note
(b), it is held that joint owners of a note,
not partners, who jointly indorse the
same, must both have notice, to charge
both, and perhaps to charge either. State
Bank v. Slaughter, 7 Blackf. 133; Miser
v. Trovinger, 7 Ohio St. 281. (So demand
must be made on all the joint makers of
a note, in order to charge the indorser.
Arnold v. Dresser, 8 Allen, 435.) And if
one partner is the maker and another the
indorser of a note, the latter must have
notice. Foland v. Boyd, 23 Penn. St. 276.
The indorser of an overdue note is as
much entitled to notice as if it had been
indorsed before maturity. Tyler v.
Young, 30 Penn. St. 143. And one who
has transferred a note without becoming
liable as indorser, but who is chargeable
on the ground of failure of consideration,
&c., stated ante, 88, n. 2, has been thought
entitled to notice of dishonor. Byles on
B. 10th ed. 290; Turner v. Stones, 1
Dowl. & Lowndes, 122, 131. See Smith
v. Mercer, L. R. 3 Ex. 51; Hopkins v.
Ware, ante, 88, n. 1. At least the note
must not be kept for an unreasonable
[143]
*105
[PART V.
OF PERSONAL PROPERTY.
What is reasonable notice to the drawer or indorser is sometimes
said to be a question of law, and at other times to be a question
time after discovery of its worthlessness,
to the prejudice of the vendor's position
in respect of other parties. Pooley v.
Brown, 11 C. B. n. s. 566; Robson v.
Oliver, 10 Q. B. 704.
case.
When and to what Place to be sent. The
doctrine of the text, 106 and note (c), is
sustained by Prideaux v. Criddle, L. R. 4
Q. B. 455, 461; Fitchburg Bank v. Perley,
2 Allen, 433; True v. Collins, 3 Allen, 438;
West River Bank v. Taylor, 34 N. Y. 128.
But the safest course is for the holder to
give notice himself to all the parties
against whom he may wish to proceed;
in which case he must give it within the
time allowed him for giving it to his im-
mediate indorser. Rowe v. Tipper, 13 C.
B. 249; Byles on Bills, ch. 22, at that
The general rule is the same al-
though the paper is indorsed from one to
another agent for collection merely. Farm-
ers' Bank of Bridgeport v. Vail, 21 N
Y. 485; Woodland v. Fear, 7 El. & Bl.
519, 522. Cf. Hare v. Henty, ante, 88, n. 1;
and the same principle is applied in deter-
mining who is holder for the purpose of
giving notice. Bowling v. Harrison, 6
How. 248; West River Bank v. Taylor,
34 N. Y. 128; Manchester Bank v. Fel-
lows, 8 Fost. (28 N. H.) 302, 311; Greene
v. Farley, 20 Ala. 322; Wamesit Bank v.
Buttrick, 11 Gray, 387; post, 108, n. (d).
But see In re Leeds Banking Co., L. R. 1
Eq. 1, as to which Mr. Justice Byles ob-
serves that the earlier decisions were not
brought under the notice of the Vice-
Chancellor; and United States v. Barker,
2 Paine, 340.
The question of what is a reasonable
time is said (in Byles on Bills, ch. 22, 5th
Am. ed. [274]) to be a question of law
depending on the facts of each particular
case, and the American note states that
the American cases go the same way with
remarkable unanimity. Walker v. Stet-
son, 14 Ohio St. 89; Linville v. Welsh, 29
Mo. 203. See Wiggins v. Burkham, 10
Wall. 129. So as to due diligence in gen
eral, Lambert v. Ghiselin, 9 How. 552; Ben
nett v. Young, 18 Penn. St. 261; Smith v
Fisher, 24 Penn. St. 222; Bell v. Hagers-
town Bank, 7 Gill, 216, 231; Hunt v.
Maybee, 3 Seld. (7 N. Y.) 266, 274;
Brighton Market Bank v. Philbrick, 40
N. H. 506, 509. See Porter v. Judson, 1
Gray, 175; Gray v. Bell, 2 Rich. 67, 72.
But compare Wyman v. Adams, 12 Cush.
210; Burmester v. Barron, 17 Q. B. 828.
See 109, n. 1, and note on negligence, ante,
ii. The rule is said to be that if the parties
do not reside in the same place, and notice
is sent by mail, it may be sent on the day
of the default, and it must be put into the
post-office in time to go by one of the
mails which leave the next secular day
after dishonor, provided the mail of that
day is not closed at an unreasonably early
hour. But it need not necessarily be sent
in time for the first one, and if the mail
be closed before a reasonable time after
early business hours on the day after dis-
honor, or if there be no mail sent out on
that day, then the notice must be depos-
ited in time for the next possible post
thereafter. Lawson v. Farmers' Bank, 1
Ohio St. 206; Stephenson v. Dickson, 24
Penn. St. 148; Mitchell v. Cross, 2 R. I.
437; Manchester Bank v. Fellows, 8 Fost.
(28 N. H.) 302; Burgess v. Vreeland, 4
Zabr. 71; Knott v. Venable, 42 Ala. 186;
West River Bank v. Taylor, 34 N. Y. 128,
136; Haskell v. Boardman, 8 Allen, 38.
See Gladwell v. Turner, L. R. 5 Ex. 59.
When both parties live in the same place,
notice must be given in time to be received
in the course of the day following the
day of dishonor. Byles on B. ch. 22, 10th
ed. 281, citing Scott v. Lifford, 9 East,
347, and other cases. It has been held
that in a large commercial city, at least
when the distance is considerable, it is
sufficient to put the notice into the post,
if in the ordinary course it would arrive
within the required time, although it is not
[144]
LECT. XLIV.]
* 105
OF PERSONAL PROPERTY.
of fact. The question of reasonable notice is usually compounded
of law and fact, and is a matter dependent upon the circumstances
in fact received. Walters v. Brown, 15
Md. 285; Paton v. Lent, 4 Duer, 231;
Shoemaker v. Mechanics' Bank, 59 Penn.
St. 79. See Shaylor v. Mix, 4 Allen, 351,
352; Foster v. Sineath, 2 Rich. 338; Cos-
tin v. Rankin, 3 Jones (N. C.), 387, 390;
Remington v. Harrington, 8 Ohio, 507,
510; Shelburne Falls N. Bank v. Towns-
ley, 102 Mass 177; Gladwell v. Turner,
L. R. 5 Ex. 59. But see Hunt v. Maybee,
3 Seld. 266, 271, and cases cited below.
This is sometimes regulated by statute.
Randall v. Smith, 34 Barb. 452. And
notice may be left at the post-office to
which it is addressed, if the person to
whom it is addressed does not live in the
place, but only receives his letters there.
Barret v. Evans, 28 Mo. 331; Nevins v.
Bank of Lansingburgh, 10 Mich. 547;
Bondurant v. Everett, 1 Met. (Ky.) 658;
New Orleans Canal & B. Co. v. Barrow, 2
La. An. 326. But it is generally thought
not to be sufficient, in the case of the
smaller towns, to leave notice at the post-
office of the town in which the person to
whom it is addressed resides, especially
when there does not appear to have.been a
penny-post, unless the notice was actually
received, and in season. Manchester Bank
v. Fellows, 8 Fost. (28 N. H.) 302, 310;
Bowling v. Harrison, 6 How. 248; Hyslop
v. Jones, 3 McL. 96; Shaylor v. Mix, 4
Allen, 351; Cabot Bank v. Warner, 10
Allen, 522; Vance v. Collins, 6 Cal. 435;
Davis v.
Bank of Tennessee, 4 Sneed, 390;
Costin v. Rankin, sup. ; Bowling v. Arthur,
34 Miss. 41. See, further, Van Vechten
v. Pruyn, 3 Kern. (13 N. Y.) 549. The
language of some of the above cases is
very strong, and hardly leaves room for the
exception of large cities above indicated.
The holder may avail himself of notice
sent through the post to an indorser living
in the same place with himself, by an
intermediate indorser living elsewhere.
West River Bank v. Taylor, 34 N. Y. 128;
True v. Collins, 3 Allen, 438.
VOL. III.
•
•
10
The cases on the points mentioned
post, 107, n. (d), are numerous. As to what
distance of the post-office from the party's
residence is not too great, see Foster v.
Sineath, 2 Rich. 338. As to what post-
office notice may be sent to, Van Vechten
v. Pruyn, 3 Kern. (13 N. Y.) 549; Seneca
Bank v. Neass, 5 Denio, 330; 3 Comst. 442;
Montgomery County Bank v. Marsh, 3
Seld. (7 N. Y.) 481; Morton v. Westcott,
8 Cush. 425; Cabot Bank v. Russell, 4
Gray, 167; Manchester Bank v. White, 10
Fost. (30 N. H.) 456; Woods v. Neeld, 44
Penn. St. 86; Bank of La. v. Tournillon,
9 La. An. 132.
Shelton
When the indorser writes the name of
a place after his signature, it is taken as
a direction to send notice to that address;
and it is sufficient, and perhaps necessary,
to follow the direction. Bartlett v. Rob-
inson, 9 Bosw. 305; Baker v. Morris, 25
Barb. 138; Morris v. Husson, 4 Sandf. 93;
Davis v. Bank of Tennessee, 4 Sneed, 390.
So as to prior parties, at least if the direc-
tion does not cause a loss of time and
put them in a worse situation.
v. Braithwaite, 8 M. & W. 252, 255. So,
sending notice to a drawer, addressed
as the bill is dated, is at least evidence
from which a jury may find due diligence,
unless the holder knows that the drawer
lives elsewhere. Burmester v. Barron, 17
Q. B. 828; Pierce v. Struthers, 27 Penn. St.
249. But see Carroll v. Upton, 3 Comst.
272; Runyon v. Montfort, Busbee, 371.
Sufficiency of the Contents. The true
rule is thought to be that where a notice
of dishonor conveys expressly or impliedly
an intimation intelligible to ordinary un-
derstandings of dishonor, and of demand of
payment, the notice is sufficient. Byles on
Bills, ch. 22, 10th ed. 275 (after comment-
ing on Solarte v. Palmer, 108 (c), & 1 Bing.
N. C. 194); Paul v. Joel, 4 Hurlst. & N.
355; 3 id. 455; Burkam v. Trowbridge, 9
Mich. 209; Burgess v. Vreeland, 4 Zabr. 71.
The notice must not so misdescribe
[145]
#106
[PART V.
OF PERSONAL PROPERTY.
of each particular case, and proper for the decision of a jury,
under the advice and direction of the court; and the mixed
question requires the application of the powers of the court and
jury. (c) The elder cases did not define what amounted to due
diligence in giving notice of the dishonor of a bill, with that
exactness and certainty which practical men and the business
of life required. According to the modern doctrine, the notice
must be given by the first direct and regular conveyance; and
if to the drawer, it must be according to the law of the place
where the bill was drawn, and if to the indorsers, according to
the law of the place where the respective indorsements
106 were made. (d) This means the first *mail that goes
(c) Tindal v. Brown, 1 T. R. 167; Darbishire v. Parker, 6 East, 3; Hilton v.
Shepard, 6 East, 14, in notis; Bateman v. Joseph, 12 East, 433; Chesapeake Ins. Co.
v. Stark, 6 Cranch, 273; Mar. Ins. Co. v. Ruden, ib. 338; Taylor v. Bryden, 8 Johns.
173; Story on Bills, [§ 286.] In Brahan v. Ragland, Minor (Ala.), 85, what is reason-
able notice to an indorser was held to be a question of fact for a jury. In Aymar v.
Beers, 7 Cowen, 705; The Bank of Columbia v. Lawrence, 1 Peters, 578; and Remer
v. Downer, 23 Wend. 620, it was held, that the reasonableness of notice, or demand,
or due diligence, when the facts were settled, was a question of law for the court,
and not a question of fact for a jury. But the question is so mixed up with cir-
cumstances, and is so compounded of the ingredients of law and fact, that it will be
found, in practice, very difficult to retain on the bench the exclusive jurisdiction of
the question. In Ohio, by act of 1820, bonds, bills, and notes for money, and payable
to order or bearer or assigns, are declared to be negotiable by indorsement thereon,
so as to enable the assignee to sue in his own name; and if demand be made at the
time the same becomes due, or within a reasonable time thereafter, it shall be adjudged
due diligence, sufficient to charge the indorser. Statutes of Ohio, 1831; Chase's
Statutes of Ohio, ii. 1137.
(d) Story on Bills, [§ 285.] Until an act of the Assembly, since 1823, in Louisiana,
the post-office was not, in that state, a proper place of deposit for notice to indorsers.
the instrument that the defendant may be
led to confound it with some other. Cook
v. Litchfield, 5 Seld. (9 N. Y.) 279. Com-
pare Hodges v. Shuler, 22 N. Y. 114;
Bank of Cooperstown v. Woods, 28 N. Y.
545, 561; Artisans' Bank v. Backus, 36
N. Y. 100, 104. And it must reasonably
apprise the party of the particular paper
on which he is sought to be charged.
Thus the omission of the maker's name
has been held to invalidate it. Home Ins.
Co. v. Green, 19 N. Y. 518. But a mis-
description or other error which does
not mislead is immaterial. Bromage v.
Vaughan, 9 Q. B. 608; Mellersh v. Rippen,
7 Exch. 578; Dennistoun v. Stewart, 17
How. 606; Tobey v. Lennig, 14 Pern. St.
483; Gill v. Palmer, 29 Conn. 54. A
notice without date and not stating the
day of protest has been held sufficient.
Artisans' Bank v. Backus, 36 N. Y. 100;
see Youngs v. Lee, 12 N. Y. 551. But
see Wynn v. Alden,
see Wynn v. Alden, 4 Denio, 163. But
a notice stating that the note was pro-
tested for nonpayment at a date which
was before the note fell due has been held
insufficient. Etting v. Schuylkill Bank,
2 (Barr) Penn. St. 355; Townsend v.
Lorain Bank, 2 Ohio St. 345. See further
Armstrong v. Thruston, 11 Md. 148, 157.
[146]
•LECT. XLIV.]
* 106
OF PERSONAL PROPERTY.
after the day next to the third day of grace; so that if the
third day of grace be on Thursday, and the drawer or in-
dorser reside out of town, the notice may, indeed, be sent on
Thursday, but must be put into the post-office or mailed on Fri-
day, so as to be forwarded as soon as possible thereafter; and if
the parties live in the same town, the rule is the same, and the
notice must be sent by the penny-post, or placed in the office on
Friday. (a) The law does not require excessive diligence, or that
the holder should watch the post-office constantly, for the purpose
of receiving and transmitting notices. Reasonable diligence and
attention is all that the law exacts; (b) and it seems to be now
settled, that each party successively, into whose hands a dishon-
ored bill may pass, shall be allowed one entire day for the purpose
of giving notice. (c) ¹ If the demand be made on Saturday, it is
19 Martin, 491. It is not now, in those post-towns where the indorser lives within
three miles of the post-office, and there is no penny-post establishment. Louisiana
State Bank v. Rowel, 18 id. 506; Clay v. Oakley, 17 id. 137. This is also the rule
in Tennessee, and notice through the post-office is not sufficient under like circum-
stances. Bank v. Bennett, 1 Yerg. 166. In Louisiana, if the residence of the party
to be charged cannot be found, after due inquiry, notice lodged at the nearest post-
office, addressed to the party at the place where the contract was made, is sufficient.
Preston v. Daysson, 7 La. 7.
1
(a) Corp v. M'Comb, 1 Johns. Cas. 328; Bussard v. Levering, 6 Wheat. 102, 104;
Johnson v. Harth, 1 Bailey (S. C.), 482; Shed v. Brett, 1 Pick. 401; Osborn v. Mon-
cure, 3 Wend. 170; Minor (Ala.), 295; Talbot v. Clark, 8 Pick. 54; Bixby v. Frank-
lin Ins. Co., ib. 86; United States v. Barker, 4 Wash. 464; Townsley v. Springer, 1
La. 122, 515; Williams v. Smith, 2 B. & Ald. 496; Farmers' Bank of M. v. Duvall,
7 Gill & J. 78; Sussex Bank v. Baldwin, 2 Harr. (N. J.) 487; Carter v. Burley, 9
N. H. 558.
(b) In North Carolina the rule respecting notice is made to vary with the pursuits
of the parties, and the same strictness is not required between farmers in the country
as between merchants in town. The reasonableness of notice, or due diligence, is to
be left to the jury, under the direction of the court. Brittain v. Johnson, 1 Dev.
(N. C.) 293.
(c) Bray v. Hadwen, 5 Maule & S. 68; Flack v. Green, 3 Gill & J. 474; Brown v.
Ferguson, 4 Leigh, 37; Williams v. Smith, 2 B. & Ald. 500, 501; Langdale v. Trim-
mer, 15 East, 291; Farmer v. Rand, 16 Me. 453; Carter v. Bradley, 19 Me. 62;
Carter v. Burley, 9 N. H. 558; Johnson v. Harth, 1 Bailey (S. C.), 482; Grand Gulf
R.R. & Banking Company v. Barnes, 12 Rob. (La.) 127. In this last case it is adjudged
that it is sufficient for the holder to give notice to his immediate indorser, or the one
whom he intends to hold liable, leaving it to the latter to notify the next indorser,
and so on to the drawer, one day being allowed to each party to notify his immediate
indorser or the drawer. The same rule exists if the bill or note be sent by the
holder to his agent for collection, and it is sufficient if the latter gives timely notice
of its dishonor to his principal, and a notice from the principal, seasonably sent, will
be sufficient to charge any prior indorser.1
1 See 105, n. 1.
[147]
* 106
[PART V.
OF PERSONAL PROPERTY.
sufficient to give notice to the drawer or indorser on Monday; (d)
and putting the notice by letter into the post-office is suf-
(d) Jackson v. Richards, 2 Caines, 343; [Williams v. Matthews, 3 Cowen, 252 ;]
Lord Alvanley, in Haynes v. Birks, 3 Bos. & P. 601. Notice may be given on Sun-
day, but the indorser is not bound to open the letter or act on it until the next day.
Bayley on Bills, ed. 1836, 265, 266. In Hawkes v. Salter, 4 Bing. 715, and Bray v.
Hadwen, 5 Maule & S. 69, and Geill v. Jeremy, 1 Moody & M. 61, it was held, that
the holder had, in such a case, the whole of Monday to write the notice, and that a
letter by the Tuesday morning post was sufficient. This is now the English rule, and
it appears to be a more definite construction, or else a relaxation of the strictness
required by the former rule. See Haynes v. Birks, 3 Bos. & P. 599; Jameson v. Swin-
ton, 2 Taunt. 224. See, also, supra, 88, n. (c); Smith's Compendium of Mercantile
Law, 147. The latter says, that if A draws a bill in favor of B, who indorses to
C, and demand and refusal be made on Monday, C has all Tuesday to give notice to
B; and if there had been a prior indorser, B has all Wednesday to give notice to him,
and Sunday is not included in any of the computations. In Lenox v Roberts, 2
Wheat. 373, the rule was laid down too strictly, when it stated that the demand of
payment should be made upon the last day of grace, and notice of the default be put
into the post-office early enough to be sent by the mail of the succeeding day. This rule is
mentioned, and, as it would seem, with approbation by the court, in the case of the
Bank of Alexandria v. Swann, 9 Peters, 33; but the decision only is, that notice need
not be put in the post-office on the day of default, and it is sufficient to send it by the
mail on the next day. This leaves the point to rest on the former decision; and yet
the principle declared is, that ordinary reasonable diligence is sufficient, and the law
does not regard the fractions of the day in sending notice. This principle will sustain the
rule as it is now generally and best understood in England and in the commercial
part of the United States, that notice put into the post-office on the next day, at any
time of the day, so as to be ready for the first mail that goes thereafter, is due notice,
though it may not be mailed in season for to go by the mail of the day after the default.
So, in Firth v. Thrush, 8 B. & C. 387, an attorney was employed to give notice. He
was not informed of the indorser's residence for several weeks after the bill was dis-
honored, though he had used due diligence. He then took a day to consult the holder
before he sent the notice; and it was held to be a valid notice. In Downs v. Planters'
Bank, 1 Sinedes & M. 261, the strict rule is declared to be, that if notice is to be sent
by the mail, it must be put into the post-office in time to go by the mail the day next
succeeding the protest, if a mail goes on that day, unless it leaves the place at an
unreasonable early hour, and that a large majority of the cases above cited in this
note support that rule. According to this decision, and for which I feel great respect,
I have perhaps given too much latitude in the preceding part of this note to some of
the cases. Wemple v. Dangerfield, 2 id. 445, s. P. See, also, Beckwith v. Smith, 22
Me. 125 to 8. P. This last case required that the notice of the dishonor of a bill should be
placed in the post-office in season to be carried by the mail of the next day after the bill
was dishonored. See, also, Darbishire v. Parker, 6 East, 3-10. This vexed question,
as to the reasonableness of notice, was largely discussed in Chick v. Pillsbury, 24 Me.
458, and it was decided that the law allowed a convenient time after business hours of the
day next succeeding that of the dishonor of the bill. Mr. Justice Shepley made an
elaborate and able argument against this relaxation of the rule, and he supported the
doctrine laid down in Bayley on Bills, 2 Am. ed. 362, and in Chitty on Bills, 8th Am.
ed. 514, in favor of the rule that notice must be given by the expiration of the day
following that of the refusal or dishonor of the bill, whether the post sets off early or
[148]
LECT. XLIV.]
* 107
OF PERSONAL PROPERTY.
ficient, though the letter * should happen to miscarry. If *107
the holder uses the ordinary mode of conveyance, he is not
required to see that the notice is brought home to the party. (a)
Nor is it necessary to send by the public mail. The notice may
be sent by a private conveyance, or special messenger; and it
would be good notice, though it should happen to arrive on the
same day, a little behind the mail. (6) Where the parties live
in the same town, and within the district of the letter-carrier,
it is sufficient to give notice by letter through the post-office.
If there be no penny-post that goes to the quarter where the
drawer lives, the notice must be personal, or by a special messen-
ger sent to his dwelling-house or place of business, and the duty
of the holder does not require him to give him notice at any
other place. (c) The notice, in all cases, is good, if left at the
dwelling-house of the party, in a way reasonably calculated to
bring the knowledge of it home to him; and if the house be shut
up by a temporary absence, still the notice may be left there.
If the parties live in different towns or states, the letter must be
late, and that the entire day, without regard to the departure of the mail, is an unwar-
rantable extension of the rule. If the party resides in the same place, the notice
must be given at the proper hour of that day, and if in another place, then by the post
of that day. He says that the opinion of Ch. J. Best, in 4 Bing. 715, is the only one
that sustains the rule I have suggested in this note, and that the observations of Mr.
Justice Story were too latitudinary in allowing the entire whole day next after the
dishonor. It is to be regretted that the time of giving the notice is not more uni-
formly, certainly, and definitively defined. I apprehend that the weight of authority
is in favor of the view of the rule as taken by Mr. Justice Shepley.
(a) Dickins v. Beal, 10 Peters, 572; [Mt. Vernon Bank v. Holden, 2 R. I. 467;
Renshaw v. Triplett, 23 Mo. 213; Windham Bank v. Norton, 22 Conn. 213.]
(b) Story on Promissory Notes, [§§ 338, 341.] Where the usual communication
from one place to another is by post or mail by land, that mode of notice cannot
safely be omitted by the holder, unless under special circumstances. See Chitty on
Bills, c. 10; Bayley on Bills, c. 7, sec. 2; Story on Bills, [§§ 287, 295;] Story on
Promissory Notes, [§ 341;] Thompson on Bills. [ch. 6, § 4, art. 3,] which is cited by
Mr. Justice Story, and contains the condensed law on the subject.
(c) Ireland v. Kip, 10 Johns. 490; Ransom v. Mack, 2 Hill (N. Y.), 587; Peirce v.
Pendar, 5 Met. 356, Shaw, C. J.; Sheldon v. Benham, 4 Hill' (N. Y.), 129, 133. The
last case states that the post-office is not a place of deposit for notices, where the
parties live in the same village, and the notice does not go by mail to another office.
But the penny-post establishment must qualify this rule as in the text. In Alabama,
the rule is, that if the holder of the paper and the party sought to be charged reside
in the same place, the notice must be given personally. Foster v. McDonald, 3 Ala.
34. The English rule is, that if there be a penny-post establishment in the city,
notice through the post-office in the same city or town is sufficient. Chitty on Bills,
504. And this is the convenient and the reasonable rule.
[149]
*107
[PART V.
OF PERSONAL PROPERTY.
forwarded to the post-office nearest to the domicile of the party,
though under certain circumstances a more distant post-office may
do; but the cases have not defined the precise distance from a
post-office at which the party must reside, to render the service
of notice through the post-office good. (d)¹ The law does not
1
(d) Grose, J., and Lawrence, J., in Darbishire v. Parker, 6 East, 10; Scott v.
Lifford, 9 id. 347; Smith v. Mullett, 2 Camp. 208; Hilton v. Fairclough, ib. 633;
Williams v. Smith, 2 B. & Ald. 496; Bancroft v. Hall, 1 Holt N. P. 476; Bray v.
Hadwen, 5 M. & S. 68; Jackson v. Richards, 2 Caines, 343; Stewart v. Eden, ib.
121; Corp v. M'Comb, 1 Johns. Cas. 328; Ireland v. Kip, 10 Johns. 490, and 11 id.
231; Lenox v. Roberts, 2 Wheat. 373; Bussard v. Levering, 6 id. 102; Lindenberger
v. Beall, ib. 104; Shed v. Brett, 1 Pick. 401; Mead v. Engs, 5 Cowen, 303; Whittier v.
Graffam, 3 Greenl. 82; Bank of Columbia v. Lawrence, 1 Peters, 578; Williams
v. United States Bank, 2 Peters, 96; United States Bank v. Carneal, ib. 543; Galla-
gher v. Roberts, 2 Wash. 191; Davis v. Williams, Peck (Tenn.) 191; Remer v.
Downer, 23 Wend. 620; Story on Bills, [§§ 285-291.] When it is said that notice
must be sent by the mail to the post-office nearest to the party to be charged, as was
declared in Ireland v. Kip, 11 Jolins. 231, and in other cases, it is only stated as a
general rule, and does not exclude modifications of it. Spencer, C. J., in Reid v. Payne,
16 Johns. 218. It is not the universal rule; and if the party be in the habit of
receiving letters through a post-office more distant from his residence, and that be
known to the holder, notice sent there is good. Thompson, J., in Bank of Columbia
v. Lawrence, 1 Peters, 578; Story on Bills, [§ 297;] Sutherland, J., in 4 Wend. 331.
Reid v. Payne, sup. ; Cuyler v. Nellis, 4 Wend. 398; Weakly v. Bell, 9 Watts, 273;
Bank of U. S. v. Carneal, 2 Peters, 543; Ransom v. Mack, 2 Hill (N. Y.), 587; Farm-
ers' & M. Bank v. Baffle, 4 Humph. 86. If the party be accustomed to receive
his papers and letters at two several post-offices, even if they be in different towns,
and not equidistant from the residence of the party, notice directed to either office is
good. Story on Bills, sup. ; Sutherland, J., supra; Bank of Geneva v. Howlett,
4 Wend. 328; Story, J., in the case of The Bank of the United States v. Carneal,
sup. It would not comport with practical convenience, as Judge Thompson
observed, to fix any precise distance from the post-office, within which the party
must reside, to make the notice good. Judge Story observed in one of the above
cases (2 Peters, 543) that the difference of a mile between the two post-offices and
the residence of the party was too trifling to afford any just ground of preference.
In the case from 4 Wendell, 328, a difference of two miles was adjudged to make no
difference; and in the case in Watts, a difference of eight miles, in that case, made
no alteration, and notice directed to the most distant post-office was held good. The
general rule is under the control of circumstances, and the policy and reason of the
rule is to bring home the notice to the party with reasonable diligence, and such
is the language and authority of the cases. A literal adherence to the admeasure-
ment of distances in sustaining the general rule would produce the utmost uncer-
tainty and injustice; and I cannot but think, with great respect, that the Supreme
Court of Louisiana, in Mechanics' and Traders' Bank of N. O. v. Compton, and in Nich-
olson v. Marders, 3 Rob. (La.) 4, 242, laid down the general rule with far too much
severity, and contrary to all the authorities, when they required notice to be sent to
the nearest post-office, though the party received his letters and papers at each of
¹ See 105, n. 1, as to several of the points treated in the text and notes of
this page.
[150]
LECT. XLIV.]
* 108
OF PERSONAL PROPERTY.
presume that the holder of the paper is acquainted with the
residence of the indorsers; and if the holder or notary, after
diligent inquiry as to the residence of the indorser, cannot ascer-
tain it, or mistakes it, and gives the notice a wrong direction, the
remedy against the indorser is not lost. (e)²
*108
*The notice must specify that the bill is dishonored;
and the design of it is, that the drawer may be enabled to
secure his claim against the acceptor, and the indorser against
the maker, and the notice may come from any person who is a
party to the bill; and it will enure to the benefit of every other
party, and operate as a notice from each indorser. (a) So, any
two offices, and had a letter box in the most distant office; and when witnesses
differed in one of the cases as to the fact which office was nearest. See Story on
Promissory Notes, [§ 343 and n.], for a collection of the general rules on the subject.
In the case of New Orleans and C. R.R. Comp. v. Robert, 9 Rob. (La.) 130, the
true rule was restored and declared; and in Jones v. Lewis, 8 Watts & S. 14, notice
in the post-office where the party receives his letters and papers is good, unless the
party lives in the post-town. The N. Y. Revised Statutes, i. 769, 770, secs. 12-17,
make provision for presentments and notices on negotiable paper, in special cases,
as when part of the city of New York is the seat of an infectious disease, and the
residence of parties becomes disturbed. By act of N. Y. April 23, 1835, c. 141,
notice of nonacceptance of a bill, or of nonpayment of a bill, note, or other negotiable
instrument, may be directed to the city or town where the person to be charged
resided at the time of drawing, making, or indorsing the same, unless the person,
at the time of his signature, specify the post-office to which notice is to be addressed.
(e) Chapman v. Lipscombe, 1 Johns. 294; Barr v. Marsh, 9 Yerger, 253. Dili-
gent inquiry is requisite as to the residence of the party to be charged, even though
the note be dated at a particular place; and if the holder of the bill knows the resi-
dence of the drawer, a mistake of the notary or clerk who gives the notice of the dis-
honor of the drawer's place of residence through ignorance of it will not excuse the
holder, who ought to have informed his agent of the place of residence. Fitler v. Mor-
ris, 6 Wharton, 406. Where the indorser's domicile was at Boston, and he had an
agent there who had charge of his business in his absence, and the note was made and
payable at New York, notice of default to the indorser by mail, at Washington,
where he was residing as a member of Congress, then in session, held sufficient.
Chouteau v. Webster, 6 Met. 1.
(a) Jameson v. Swinton, 2 Camp. 373; Solarte v. Palmer, 7 Bing. 530; Chanoine
v. Fowler, 3 Wend. 173; Bayley on Bills, pp. 254-256; Story on Promissory Notes,
[$ 302] Chapman v. Keane, 4 Nev. & M. 607; 3 Ad. & El. 193, s. c.; and it over-
rules Tindall v. Brown, in 1 T. R., on the point as to the person giving the notice.
Marr v. Johnson, 9 Yerg. 6. Mr. Justice Cowen, in Halliday v. McDougall, 20
Wend. 85, considers it to be the duty of the notary to give the notice. It is no part
of the duty of a notary to give notice of a protest.
Hill (N. Y.), 227. See Story on Bills, [§§ 303, 304.]
2 It was held in Lambert v. Ghiselin,
9 How. 552, that the holder who had sent
notice to the wrong place after using due
Bank of Rochester v. Gray, 2
Though it is usual for a notary
diligence, was not bound to give any
further notice on discovering his mistake.
But see Beale v. Parrish, 20 N. Y. 407.
[151]
*108
[PART V.
OF PERSONAL PROPERTY.
agent, having possession of the bill, may give the notice, and it
need not state at whose request it was given, nor who was the
owner of the bill. (b) There is no precise form of the notice.
It is sufficient that it state the fact of nonpayment and dishonor
of the bill, and it is not necessary for the holder to state ex-
pressly, when it may be justly implied, that the holder looks to
the indorser. (c) 1 It is sufficient for an agent to give notice to
his principal of the dishonor of a bill, and he is not bound to give
notice to all the prior parties; and it then becomes necessary fo
the principal to give the requisite notice, with due diligence, to
the parties to be fixed. (d) The party receiving notice is bound
to give notice likewise to those who stand behind him, and to
whom he means to resort for indemnity; and if a second in-
public to demand payment of a promissory note, and to give notice of the default,
this is a matter of convenience, and not an official duty required by law. Burke v.
McKay, 2 How. 66; Story on Promissory Notes, [§ 302.]
(b) The decision in Chapman v. Keane, mentioned in the preceding note, estab-
lishes the doctrine, that the party entitled as holder to sue may avail himself of
notice given in due time by any other party to the bill, against any other person on
the bill, who would be liable to the holder if he had given the notice. The notice
enures to the benefit of all the other parties to the bill, whether antecedent or subse-
quent to the party giving the notice. Story on Bills, [§ 304, note; ante, 105, n. 1.]
But notice given by a third person, or by a mere stranger, not a party to the bill,
and not authorized, amounts to a mere nullity. Chanoine v. Fowler, 3 Wend. 173;
Story on Promissory Notes, [§ 301;] Hartley v. Case, 4 B. & C. 339.
(c) Shed v. Brett, 1 Pick. 401; Mills v. United States Bank, 11 Wheat. 431;
United States Bank v. Carneal, 2 Peters, 543; Cooke v. French, 10 Ad. & El. 131;
Gilbert v. Dennis, 3 Met. 495; Solarte v. Palmer, 7 Bing. 530, 533; Strange v.
Price, 10 Ad. & El. 125; Furze v. Sharwood, 2 Q. B. 388; King v. Bickley, ib. 419.
In the case of Furze v. Sharwood, Lord C. J. Denman went fully and clearly through
all the cases, and exposed their unsteady and conflicting interpretations of the rule
of notice relative to the statement of dishonor, and that the holder looked to the
party for payment. It appears to me, that the law in the text is according to the
latest rule adopted in the English and American cases, and this seems to be the con-
clusion of Mr. Justice Story. Story on Promissory Notes, [§ 353.] The three facts
requisite to due notice of the dishonor of a bill are, -1. That the bill was presented
when due; 2. That it was dishonored; 3. That the party to whom the notice is
addressed is to be held liable for the payment of it; and if all these facts appear in the
notice, either expressly or by necessary or reasonable implication or intendment, it
is good notice. Hedger v. Steavenson, 2 M. & W. 799; Lewis v. Gompertz, 6 id. 399.
[Ante, 105, n. 1.]
(d) Haynes v. Birks, 3 Bos. & P. 599; Bank of U. S. v. Goddard, 5 Mason, 366;
Phipps v. Milbury Bank, 8 Met. 79; Tunno v. Lague, 2 Johns. Cas. 1; Colt v. Noble,
5 Mass. 167; Firth v. Thrush, 8 B. & C. 387. An agent of the holder is allowed
one day to give notice to his principal of a default, and the principal one day there
after to give notice to the drawer or prior indorser. Ibid. [105, n. 1.]
I See 105, n. 1.
[152]
LECT. XLIV.]
* 109
OF PERSONAL PROPERTY.
dorser, on receiving notice of the dishonor of the bill,
should *neglect to give the like notice, with due dili- *109
gence to the first indorser, the latter would not be liable to
him. (a) It is not necessary, in the case of notice of the non-
acceptance or nonpayment of a bill, that a copy of the bill and
protest should accompany the notice. It is sufficient to give
notice of the fact. (b) If several parts, as is usual, of a bill of
exchange, be drawn, they all contain a condition to be paid, pro-
vided the others remain unpaid, and they collectively amount to
one bill, and a payment to the holder of either is good, and a
payment of one of a set is payment of the whole.. The drawer
or indorser, to be charged on nonacceptance or nonpayment, is
entitled, in the case of a foreign bill, to call for the protest, and
the identical bill, or number of the set protested, before he is
bound to pay; and it would be sufficient to produce it at the
trial, or account for its absence. (c) His rights attach to the
bill that has been dishonored, and he is entitled to call for it. He
may want it for his own indemnity, and without it he might be
exposed to claims from some bona fide holder or person, who had
paid it supra protest, for his honor. He is not bound to produce
the other parts of the set, or to account for their nonproduc-
tion. (d)
There are many cases in which notice is not requisite, or the
want of it waived.
If the party be absent, or has absconded, or his place of resi-
(a) Morgan v. Woodworth, 3 Johns. Cas. 89; Pothier, Traité du Con. de Change,
n. 153.
But if the first indorser has, in point of fact, had due notice from any
subsequent holder, it is sufficient. Stafford v. Yates, 18 Johns. 327; Stanton v. Blos-
som, 14 Mass. 116; Bayley on Bills, 4th ed. 163. Each successive indorser, who
receives notice of the dishonor, is entitled to the whole day on which he receives
notice, and need not give notice to the antecedent indorsers until the next day after
receiving notice, even if they live in the same city or town; and if they live in dif-
ferent places, it will be sufficient if he sends notice by the post of the next day after
the notice. Story on Promissory Notes, [§§ 331–335.]
(b) Cromwell v. Hynson, 2 Esp. 511; Chaters v. Bell, 4 id. 48; Robins v. Gibson,
1 Maule & S. 289; Lenox v. Leverett, 10 Mass. 1; Wallace v. Agry, 4 Mason, 336;
Goodman v. Harvey, 6 Nev. & M. 372; s. c. 4 Ad. & El. 870. The notarial protest
of a foreign bill must set forth, specifically, the fact that the bill was exhibited to
the acceptor when payment was demanded. Musson v. Lake, 4 How. 262.
(c) Powell v. Roach, 6 Esp. 76; Beawes, 420, 424, sec. 74; Kenworthy v. Hop-
kins, 1 Johns. Cas. 107; Wells v. Whitehead, 15 Wend. 527. [Post, 115, n. 1.]
(d) Downes v. Church, 13 Peters, 205. See Story on Bills, [§§ 382-393,] where
the cases and the rules as to notice are diligently and fully noted.
[153]
* 109
[PART V.
OF PERSONAL PROPERTY.
dence be unknown, and due and diligent inquiry be made, or he
have no residence, or giving notice be physically or morally im-
possible, as by the operation of the vis major, the want of notice
will be dispensed with, but it must be given as soon as the imped-
iment is removed. (e)¹ If the drawee refuses to accept, because
(e) Chitty on Bills, c. 8, 360; c. 9, 389, 422; c. 10, 486-488; Tunno v. Lague, 2
Johns. Cas. 1; Hopkirk v. Page, 2 Brock. 20; Tunstall v. Walker, 2 Smedes & M.
638; Story on Bills, [§§ 307-309;] Story on Promissory Notes, [§§ 258-263;] Par-
dessus, Droit Com. ii. arts. 426, 434. Between the immediate parties who have
transferred and received the note, if receiving the note so near the time of its matu-
rity renders it impracticable to present it in due season, it forms a valid excuse for
nonpresentment in proper time. But this does not apply to other parties who are
held to a strict compliance, and numerous exceptions are collected and stated. Story
on Promissory Notes, [§ 265.]
(1) Excuses. — See, as to what is due
diligence when the residence is unknown,
Lambert v. Ghiselin, 9 How. 552; Brighton
Market Bank v. Philbrick, 40 N. H. 506;
Hunt v. Maybee, 3 Seld. 266.; Porter v.
Judson, 1 Gray, 175; Bird v. Doyal, 20
La. An. 541; Tate v. Sullivan, 30 Md.
464; Berridge v. Fitzgerald, L. R. 4 Q. B.
639. See Ward v. Perrin, 54 Barb. 89;
ante, 105, n. 1; 107, n. 2.
1 Excuses for not giving Notice. —Waiver ment, without any consideration. Cod-
of Want of Notice.
dington v. Davis, 3 Den. 16; s. c. 1 Comst.
186; Sheldon v. Horton, 43 N. Y. 93, 97;
Wall v. Bry, 1 La. An. 312; (see Guyther
v. Bourg, 20 La. An. 157;) Barclay v.
Weaver, 19 Penn. St. 396. And a waiver,
even if contemporaneous with the making
of the note, may be proved by parol, or
may be inferred from acts and circum-
stances. Keyes v. Winter, 54 Me. 399.
An agreement between the holder and
indorser that the time of payment may be
extended will have this effect. Ridgway
v. Day, 13 Penn. St. 208; Amoskeag
Bank v. Moore, 37 N. H. 539; Sheldon v.
Horton, 43 N. Y. 93. A waiver of pro-
test has been held to be a waiver of de-
mand and notice. Coddington v. Davis,
1 Comst. 186; (cited in many subsequent
New York cases with seeming approval.)
Contra, Wilkins v. Gillis, 20 La. An. 538;
Ball v. Greand, 14 La. An. 305. See
further Scott v. Greer, 10 Penn. St. 103.
A waiver of notice is held not to be a
waiver of demand. Buchanan v. Mar-
shall, 22 Vt. 561; Drinkwater v. Teb-
betts, 17 Me. 16; Low v. Howard, 11
Cush. 268, 270.
A merchant who puts his name to a bill
engages that he will, by himself or his
servant, be ready at his place of business
to receive notice of dishonor. Allen v. Ed-
mundson, 2 Exch. 719, 723; ante, 96,
n. 1. See Bliss v. Nichols, 12 Allen, 443;
Berridge v. Fitzgerald, L. R. 4 Q. B. 639.
Cases arising out of the rebellion will
be found in the reports of the southern
states, in which notice was made impossi-
ble by the parties being on opposite sides
of the opposing lines, and was therefore
excused for the time being, but was re-
quired to be given within a reasonable
time after the opening of communication.
Citizens' Bank v. Pugh, 19 La. An. 43;
Durden v. Smith, 44 Miss. 548; Peters
v. Hobbs, 25 Ark. 67. See Billgerry v.
Branch, 19 Gratt. 393.
Waiver. - Demand and notice may be
waived before maturity and after indorse-
Demand and notice are not necessary
when the drawer of a check or bill stops
payment or acceptance. Jacks v. Darrin,
3 E. D. Smith, 557; Purchase v. Mattison,
6 Duer, 587; Sutcliffe v. M'Dowell, 2
[154]
LECT. XLIV ]
*109
OF PERSONAL PROPERTY.
he has no effects of the drawer in hand, and the drawer had no
right to draw, and no right to expect his bill would be paid, pro-
Nott & M'C. 251; Lilley v. Miller, ib.
257.
When Drawer has no Right to draw.
The principle of Bickerdike v. Bollman,
inf. n. (ƒ), (2 Sm. L. C.), is followed
often with expressions of unwillingness.
Case v. Morris, 31 Penn. St. 100; Wol-
lenweber v. Ketterlinus, 17 Penn. St 389;
Coyle v. Smith, 1 E. D. Smith, 400;
Allen v. King, 4 McLean, 128; Oliver v.
Bank of Tenn., 11 Humph. 74; Orear v.
McDonald, 9 Gill, 350; Durrum v. Hen-
drick, 4 Tex. 495; Blankenship v. Rogers,
10 Ind. 333; Mehlberg v. Fisher, 24 Wis.
607. See Walker v. Rogers, 40 Ill. 278.
See, also, Harwood v. Jarvis, 5 Sneed, 375,
questioned in 1 Pars. N. & B. 545, n. (m).
It applies to the drawer or indorser of a
bill for his own accommodation; Torrey
v. Foss, 40 Me. 74; Barbaroux v. Waters,
3 Met. (Ky.) 304; Ex parte Swan, L. R.
6 Eq. 344, 356; Maltass v. Siddle, 6 C. B.
N. s. 494, 500; but not to persons draw-
ing for the accommodation of another.
Sleigh v. Sleigh, 5 Exch. 514; Miser v.
Trovinger, 7 Ohio St. 281; Merchants'
Bank v. Easley, 44 Mo. 286; Carter v.
Flower, 16 M. & W. 743. See 110 as to
indorsers in general.
In case of the drawee absconding,
the rule laid down in the text, ante, 96,
may be true as to demand, ib. n. 1, but
it is pretty certain that, so far as no-
tice is concerned, what is said on p. 110
is correct. Michaud v. Lagarde, 4 Minn.
43; Pierce v. Cate, 12 Cush. 190; Rat-
cliffe v. Planters' Bank, 2 Sneed, 425;
Foster v. Julien, 24 N. Y. 28, 37; Ex parte
Rohde, Mont. & M. 430. So as to the in-
solvency or bankruptcy of the acceptor.
Ex parte Swan, L. R. 6 Eq. 344, 357;
Benedict v. Caffe, 5 Duer, 226, 232;
Bruce v. Lytle, 13 Barb. 163. See Tay-
lor v. French, 4 E. D. Smith, 458.
(2) Waiver of Want of Notice. —Loose
v. Loose, 36 Penn. St. 538, 545. Confirms
113, at n. 1.
It has been held that there is no pre-
sumption raised by a subsequent promise
to pay that the party knew of a present-
ment for acceptance before the bill fell
due, and dishonor. Landrum v. Trow-
bridge, 2 Met. (Ky.) 281.
Mr. Justice Byles takes a distinction
between the effect of a subsequent prom-
ise as a waiver, and an acknowledgment
of liability, part payment, or even a
promise, as evidence of notice. Byles on
B. ch. 22, 5th Am. ed. (291); 10th ed. 298
Cases of the first sort are Sigerson
v. Mathews, 20 How. 496; Edwards v.
Tandy, 36 N. H. 540; Byram v. Hunter,
36 Me. 217; Morgan v. Peet, 32 Ill. 281;
Blodgett v. Durgin, 32 Vt. 361; Golladay
v. Bank of the Union, 2 Head, 57; Camp-
bell v. Varney, 12 Iowa, 43; Harvey v.
Troupe, 23 Miss. 538; Meyer v. Hibsher,
47 N. Y. 265. Evidence from which jury
might infer waiver; Woods v. Dean, 3
Best & S. 101; Harrison v. Bailey, 99
Mass. 620; Lary v. Young, 13 Ark. 401.
Illustrations of the second principle
are harder to find. A promise has been
sometimes treated as evidence of notice.
Dorsey v. Watson, 14 Mo. 59; Jones v.
O'Brien, 2 Com. Law, 853; 26 Eng. L. &
Eq. 283; Loose v. Loose, 36 Penn. St. 538,
545. See Harvey v. Troupe, 23 Miss. 538.
But ambiguous language is used in Og-
lesby v. The D. S. Stacy, 10 La. An. 117;
Loose v. Loose, 36 Penn. St. 538, 545;
Sigerson v. Mathews, 20 How. 496, 500.
And part payment has been treated as a
waiver. Sherer v. Easton Bank, 33 Penn.
St. 134, 141.
The statement in the text, 113, as to the
effect of taking security is true when the
security in question is sufficient to cover
the whole liability of the indorser, or
consists of all the property, real and per-
sonal, of the maker, and is taken before
the maturity of the note. Walters v.
Munroe, 17 Md. 154; Lewis v. Kramer,
3 Md 265; Seacord v. Miller, 3 Kern
[155]
* 110
[PART V.
OF PERSONAL PROPERTY.
test and notice to the drawer are not necessary. (f) This excep-
tion to the general rule proceeds on the ground of fraud in
*110 the drawer, or that notice to him would be useless; *but
the courts have regretted the existence of the exception,
and they confine it strictly to the case of want of effects, and
where the drawee is not indebted to the drawer, and to other
cases in which the drawer had no right to expect that his bill
would be honored, and in fact when the drawing of the bill
amounted to fraud. (a) Notice is requisite, if the want of it
would produce detriment; as if, in case notice had been given,
and the bill taken up, the drawer would have had his remedy
over against some third person; or if it was drawn with a bona
fide expectation of assets in the hands of the drawee, as upon
the faith of consignments not come to hand, or upon the ground
of some mercantile agreement. (b) The exception applies only
to the drawer, and not to the indorser of a bill drawn without
funds, for he is presumed to know nothing of the arrangements
between the drawer and drawee; (c) and it is now settled in Eng-
(ƒ) Bickerdike v. Bollman, 1 T. R. 405; French v. Bank of Columbia, 4 Cranch,
153, 164; Dickins v. Beal, 10 Peters, 572; Kemble v. Mills, 2 Scott N. R. 121; Wil-
liams v. Brashear, 19 La. 370. In Alabama, the rule is declared to be, that if the
drawee had no effects of the drawer in hand, from the time the bill was drawn
up to the time of its maturity, presentment and notice need not be proved, not-
withstanding the bill may be drawn in good faith, and if duly presented would have been
honored. Foard v. Womack, 2 Ala. 368. This appears to be contrary to the general
rule.
(a) The English judges have expressed strong dissatisfaction with the doctrine
that exempts the holder from giving notice on any pretence whatever. This was the
case with Lord C. J. Eyre, 1 Bos. & P. 654; Lord Alvanley, 3 id. 241; Lord Ellen-
borough, in 7 East, 359; Ch. J. Abbott, in 3 B. & Ald. 623; Ch. J. Tindal, in 6 Bing.
626, and they resist the extension of the principle.
(b) Rogers v. Stephens, 2 T. R. 713; Corney v. Da Costa, 1 Esp. 302; Staples v.
Okines, ib. 332; Clegg v. Cotton, 3 Bos. & P. 239; Brown v. Maffey, 15 East, 216;
Rucker v. Hiller, 16 id. 43; Cory v. Scott, 3 B. & Ald. 619; French v. Bank of
Columbia, 4 Cranch, 141; Cathell v. Goodwin, 1 Harr. & G. 468; Eichelberger v.
Finley, 7 Harr. & J. 381; Farmers' Bank v. Vanmeter, 4 Rand. 553; Norton v.
Pickering, 8 B. & C. 610; Lafitte v. Slatter, 6 Bing. 623; Dickins v. Beal, 10 Peters,
572.
(c) Wilkes v. Jacks, Peake, 202; Leach v. Hewitt, 4 Taunt. 731; Ramdulollday
(13 N. Y.) 55; (approving Kramer v.
Sandford, 113, n. (e).) See Taylor v.
French, 4 E. D. Smith, 458. But taking
security of less amount is not a waiver.
Marshall v. Mitchell, 34 Me. 227; Lewis
v. Kramer, 3 Md. 265, (but see ib. 291);
Seacord v. Miller, sup. Neither is taking
any assignment of property after the ma-
turity of the note. Otsego County Bank
v. Warren, 18 Barb. 290; Walters v. Mun-
roe, 17 Md. 154; Gawtry v. Doane, 48
Barb. 148.
[156]
LECT. XLIV.]
* 111
OF PERSONAL PROPERTY.
land, in France, and in this country, that neither the death nor
the insolvency of the drawer or drawee, or acceptor, nor the fact
that the drawee had absconded, does away the necessity of a
demand of payment, and notice to the drawer or indorser; nor
does knowledge in the indorser, when he indorsed the paper, of
the insolvency of the maker of the note, or drawee of the bill, do
away the necessity of notice in order to charge him. (d) It
was left undecided in * Rohde v. Proctor, (a) whether in *111
the case of the bankruptcy of the party entitled to notice,
the holder was bound to give notice to the assignees; though the
intimation in that and other cases is, and it is clearly the better
opinion, that the notice to the assignees would be proper, if as-
signees had been chosen when notice was to be given. (b) If a
bank check be taken in the ordinary course of business, it is not
an absolute payment, but only the means to procure the money;
and the holder is bound to present it for payment with ordinary
diligence, and the next day will be in season. But if the bank be
totally prohibited, by process of law, from the exercise of its func-
tions, before the check can, with due diligence, be presented, no
demand need be made or notice given; and the holder may waive
the check altogether, and resort to his original demand. (c) So,
if the maker of the check has no funds in the bank at the date of
v. Darieux, 4 Wash. 61; Story on Bills, [§ 314; Carter v. Flower, 16 M. & W.
743, 747.]
(d) Nicholson v. Gouthit, 2 H. Bl. 609; Esdaile v. Sowerby, 11 East, 114; Bowes
v. Howe, 5 Taunt. 30; Rohde v. Proctor, 4 B. & C. 517; Jackson v. Richards, 2
Caines, 343; French v. Bank of Columbia, 4 Cranch, 141; Sandford v. Dillaway, 10
Mass. 52; Buck v. Cotton, 2 Conn. 126; Juniata Bank v. Hale, 16 Serg. & R. 157;
Groton v. Dallheim, 6 Greenl. 476; Hill v. Martin, 12 Mart. (La.) 177; Jervey v. Wil-
bur, 1 Bailey (S. C.), 453; Hightower v. Ivy, 2 Porter (Ala.), 308; Denny v. Palmer,
5 Ired. 623. Mr. Bell, in his Commentaries, i. 413, mentions a number of Scotch
decisions to the same effect. See, also, Pardessus, ii. art. 424, part. 2, tit. 4, c. 8,
sec. 2, and Story on Bills, [§§ 279, 318, 326;] Code de Com. art. 163, to the same
point.
(a) 4 B. & C. 517.
(b) See Ex parte Moline, 19 Ves. 216, and Thompson on Bills, [ch. 6, § 4, art.
8,] as cited to that point by Mr. Justice Bayley, in Rohde v. Proctor. See, also,
Bell's Comm. i. 421.
(c) Cromwell v. Lovett, 1 Hall (N. Y.), 56. A promissory note, taken for
a prior debt, may operate as a payment of it, but it is a conditional payment only,
if not intended for an absolute payment, and the intention one way or the other
is matter of presumption and proof. Story on Promissory Notes, [§ 438;] and
see the numerous cases there collected.
[157]
* 112
[PART V.
OF PERSONAL PROPERTY.
the check, it need not be presented for payment previous to a suit
upon it. (d)
Giving time by the holder to the acceptor of a bill or maker of
a note will discharge the other parties; but the agreement for
delay must be one having a sufficient consideration, and binding
in law upon the parties; mere indulgence will work no preju
dice. (e) If the holder gives time to the indorser, knowing that
the note was made for his accommodation, he does not
* 112 thereby discharge* the drawer. (a) Simply forbearing to
sue the acceptor, or taking collateral security from him, is
no discharge; but giving him new credit and time, or accepting a
composition in discharge of the acceptor, will produce that result.
The principle is, that the drawer and indorser are in the light of
sureties for the acceptor; and the holder must do nothing to im-
pair the right which they have to resort by suit to the acceptor for
indemnity, or which would amount to a breach of faith in him
towards the acceptor. (b) If the liability of the surety be varied,
it discharges him; or if he can sue the acceptor, in consequence
of the resort over to him by the holder, notwithstanding the time
given to or the composition made with the acceptor, by the holder,
the latter is enabled indirectly to violate his contract with the
acceptor. (c) But receiving part of the debt from the acceptor
of a bill or maker of a note, works no prejudice to the holder's right
(d) Franklin v. Vanderpool, 1 Hall, 78.
(e) M'Lemore v. Powell, 12 Wheat. 554; Planters' Bank v. Sellman, 2 Gill &
J. 230; [Hoffman v. Coombs, 9 Gill, 284;] Bank v. Myers, 1 Bailey (S. C.), 412;
Greely v. Dow, 2 Met. 178; Clarke v. Henty, 3 Younge & Coll. 187; Story on
Bills, [§ 426;] Frazier v. Dick, 5 Rob. (La.) 249. Giving indulgence to the acceptor,
after judgment against the drawer, does not discharge him. Pole v. Ford, 2 Chitty,
125; Huie v. Bailey, 16 La. 213.
(a) Walker v. Bank of Montgomery County, 12 Serg. & R. 382; s. c. 9 id. 229.
[See some of the cases cited at the beginning of 86, n. 1. Lambert v. Sandford,
2 Blackf. 137. The general rule seems not to be followed in Louisiana, nor perhaps
in New Hampshire. Ante, 86, n. 1.]
(b) Philpot v. Briant, 4 Bing. 717; Planters' Bank v. Sellman, 2 Gill & J. 230;
Nolte v. His Creditors, 19 Martin (La.), 9. Same law in respect to the indorser of a
note. Couch v. Waring, 9 Conn. 261. Mere delay by the payee of a note due, in
enforcing payment against the principal, does not discharge the surety. Freeman's
Bank v. Rollins, 13 Me. 202.
(c) Ex parte Smith, 3 Bro. C. C. 1; Walwyn v. St. Quintin, 1 Bos. & P. 652; Eng-
lish v. Darley, 2 id. 61; Clark v. Devlin, 3 id. 363; Ex parte Wilson, 11 Ves.
410; Gould v. Robson, 8 East, 576; Pring v. Clarkson, 1 B. & C. 14. [Pring v. Clark-
son is denied in Michigan State Bank v. Leavenworth, 28 Vt. 209, 215. But compare
Pitts v. Congdon, 2 Comst. 352; Hurd v. Little, 12 Mass. 502.]
[158]
LECT. XLIV.]
* 113
OF PERSONAL PROPERTY.
against the drawer or indorsers, for it is in aid of all parties who
are eventually liable. (d) All that the rule requires is, that the
holder shall not so deal with the acceptor of the bill or maker of
the note, by giving time, or compounding, or giving credit, as to
prejudice the right of the other parties to the bill, without their
assent,¹ in the exercise of their right of recourse against the maker
or acceptor. The holder may give time to an immediate indorser,
and proceed against the parties behind him. A prior party to a
bill is not discharged by a release of a subsequent party. But the
holder cannot reverse this order, and compound with prior par-
ties without the consent of subsequent ones, for it varies
the rights of the subsequent parties, and * discharges them. *113
The release or discharge of a prior indorser discharges all
subsequent indorsers. The parties to a bill are chargeable in dif-
ferent order. The acceptor is first liable, and the indorsers in the
order in which they stand on the bill; and taking new security,
or giving time, or discharging or compounding with a subsequent
indorser, cannot prejudice a prior indorser, because he has no
rights against a subsequent indorsee. (a) The acceptor, whether
for accommodation or for value, is not discharged by time given
to or security taken from other parties to the bill. (b)
If due notice of nonacceptance or nonpayment be not given,
or a demand on the maker of a promissory note be not made, yet
a subsequent promise to pay, by the party entitled to notice, be he
either drawer or indorser, will amount to a waiver of the want of
demand or notice, provided the promise was made clearly and
unequivocally, and even under a mistake of the law, if it was
with full knowledge of the fact of a want of due diligence on
the part of the holder. (c) The weight of authority is, that this
(d) Lynch v. Reynolds, 16 Johns. 41.
(a) English v. Darley, 3 Esp. 49; s. c. 2 Bos. & P. 61; Smith v. Knox, 3 Esp. 46;
Sargent v. Appleton, 6 Mass. 85; Clopper v. Union Bank of Maryland, 7 Harr. & J.
100; Hawkins v. Thompson, 2 McL. 111.
(b) Story on Bills, [§ 268;] Chitty on Bills, c. 7, 9; Wallace v. M'Connell, 13
Peters, 136.
(c) Chitty on Bills, c. 10, 533-536; Goodall v. Dolley, 1 T. R. 712; Hopes v. Alder,
6 East, 16 in notis; Borradaile v. Lowe, 4 Taunt. 93; Stevens v. Lynch, 2 Camp. 332;
12 East, 38, s. c.; Miller v. Hackley, 5 Johns. 375; Martin v. Winslow, 2 Mason,
1 Eldrege v. Chacon, Crabbe, 296. See
Lime Rock Bank 2. Mallett, 42 Me. 349;
Wright v. Storrs, 6 Bosw. 600. In re
Blakely, Ex parte Harvey, 4 De G., M. &
G. 881, 899.
[159]
* 113
[PART V.
OF PERSONAL PROPERTY.
1 ¹
knowledge may be inferred as a fact from the promise, under the
attending circumstances, without requiring clear and affirmative
proof of the knowledge. (d) So, if the indorser, before or at
the maturity of the bill, has protected himself from loss by taking
sufficient collateral security of the maker of the note, or an
assignment of his property, it is a waiver of his legal right to
require proof of demand and notice. (e)
241; Fotheringham v. Price, 1 Bay, 291; Thornton v. Wynn, 12 Wheat. 183; Pate
v. M'Clure, 4 Rand. 164; Otis v. Hussey, 3 N. H. 346; Reynolds v. Douglass, 12
Peters, 497; Farrington v. Brown, 7 N. H. 271; Story on Bills, [§ 320;] Sussex
Bank v. Baldwin, 2 Harr. (N. J.) 487; Robbins v. Pinckard, 5 Smedes & M. 51;
Brooklyn Bank v. Waring, 2 Sandf. Ch. 1; Moore v. Tucker, 3 Ired. 47. Mr.
Justice Story questions the soundness of the doctrine, holding a promise to pay under
a knowledge of facts and mistake of law binding, though he considers it as now
established both in England and America. Story on Promissory Notes, [§§ 275,
362.] The Irish Court of Exchequer, in Donnelly v. Howie, Hayes & Jones, 436,
plainly and forcibly denies the validity of the rule, and holds that a new promise to
pay, after a full knowledge of all the facts, but without any new consideration to
support it, was a nudum pactum, and not binding. I think it is too late to call in
question the validity of the promise founded on a waiver of a technical rule estab-
lished for the benefit of the indorser. The original consideration remains after the
waiver to sustain the promise, and it is a great and universal principle of jurispru-
dence, that every man is bound to know the law. But on the other hand, if the
indorser does waive the want of notice, and pays, he cannot affect the rights of ante-
cedent indorsers, and he cannot recover of them if he does pay. Chitty on Bills,
458; Story on Promissory Notes, [§ 386.]
(d) Lundie v. Robertson, 7 East, 231; Piersons v. Hooker, 3 Johns. 68; Hopkins
v. Liswell, 12 Mass. 52; Breed v. Hillhouse, 7 Conn. 523; Williams v. Robinson, 13
La. 421; Tebbetts v. Dowd, 23 Wend. 379. In this last case Mr. Justice Cowen
learnedly reviewed the whole series of decisions on the subject. Ch. J. Sharkey, in
5 Smedes & M. 72, says that the question was examined by Mr. Justice Cowen,
"with an ability and research unsurpassed."
(e) Mead v. Small, 2 Greenl. 207; Bond v. Farnham, 5 Mass. 170; Prentiss v.
Danielson, 5 Conn. 175; Duvall v. Farmers' Bank, 9 Gill & J. 47; Corney v. Da
Costa, 1 Esp. 302; Perry v. Green, 4 Harr. (N. J.) 61; Story on Bills of Exchange,
[§ 374;] Mechanics' Bank v. Griswold, 7 Wend. 165. In Kramer v. Sandford, 4
Watts & S. 328, the Supreme Court of Pennsylvania held, on a review of the Ameri-
can authorities, and in qualification of the doctrine in the text, that the indorser was
not exempted from the obligation of giving notice by taking security or indemnity,
where the obligation of taking up the note remained with the maker, and was not
assumed by t' e indorser. Ch. J. Gibson observed further, that the doctrine of waiver,
in consideration of a security, had no footing in Westminster Hall. And in Denny
v. Palmer, 5 Ired. 610, Ch. J. Ruffin learnedly discussed the authorities, and his con-
clusion is strict in favor of notice to the indorser, unless the indorser has become
bound to take up the note by an agreement with the maker for that purpose, or by
receiving in hand effects to meet the note, or by taking a general assignment of the
drawer's estate and effects. The learned American author [James P. Holcombe] of
1 Loose v. Loose, 36 Penn. St. 538, 545; ante, 109, n. 1.
[160]
LECT. XLIV.]
#114
OF PERSONAL PROPERTY.
*114
* If the indorser comes again into possession of the bill,
he is to be regarded prima facie as the owner, and may sue
and recover as against prior parties, though there be on it subse-
quent indorsements, and no receipt or indorsement back to him,
and he may strike out the subsequent names. (a) To maintain
a suit against the indorser, the holder must show, as we have
seen, due demand of the maker or acceptor, or a presentment for
acceptance, and due notice to him of the default; and he need
not prove any prior indorsement, nor the hand of the drawer.
An indorsement of a note impliedly admits the signatures of the
antecedent indorsers to be genuine. (b) But in the suit against
the acceptor, the holder need not show notice to any other per-
son. The acceptor is liable at all events. Receiving part from
the drawer or indorser is no discharge of the acceptor. Giving
time to the drawer will not discharge the acceptor of an ac-
commodation bill. Nothing short of the statute of limitations, or
payment, or a release or an express declaration of the holder,
will discharge the acceptor.¹ He is bound, like the maker of a
the Selection of Leading Cases upon Commercial Law, p. 327, considers that Ch. J.
Gibson has laid down the true principle in those cases. I incline to the opinion,
though with great respect, that the Chief Justice pushes his objection to an unrea-
sonable length, and that when as a matter of fact the indorser has protected himself
by sufficient collateral security, he has no reason or justice in setting up the objection
of want of notice, and he ought not to be permitted to rid himself of his obligation to
pay the note, by the interposition of the technical rule.
(a) Dugan v. United States, 3 Wheat. 172; Norris v. Badger, 6 Cowen, 449; Huie
v. Bailey, 16 La. 213. [Eaton v. McKown, 34 Me. 510; Glasgow v. Switzer, 12 Mo.
395.]
(b) Critchlow v. Parry, 2 Camp. 182; Story on Promissory Notes, [§ 387,] and
cases there cited. By the law of Virginia, Kentucky, Indiana, and Illinois, the
holder of a promissory note must make every reasonable effort and due and legal
diligence to recover of the drawer, before he can sue the indorser, on the ground of
nonpayment and notice. Demand on drawer, and due notice to indorser, is not suf
ficient. The legal means against drawer must first be resorted to. In Georgia the
indorser is held bound as a surety without any previous demand and notice, though
this departure from commercial usage is not to apply to notes negotiated at any incor-
porated bank, or deposited there for collection. The indorser is likewise discharged,
if, after a request upon the holder for that purpose, he does not, within three months,
proceed to collect the debt. Statute of Georgia, December 26, 1826; 2 Peters, 388,
note; ib. 345. See, also, to the same point, United States Bank v. Tyler, 4 id. 366;
Johnson v. Lewis, 1 Dana (Ky.), 182; Saunders v. O'Briant, 2 Scam. 369.
1 Ante, 86, n. 1. As to the order of
liability to an innocent holder, ante, 78, n.
2. As to accommodation acceptors and
VOL. III.
11
makers, ante, 78, n. 2, 86, n. 1, cases first
cited; 112, n. (a).
[161]
*115
[PART V.
OF PERSONAL PROPERTY.
note, as a principal debtor. His acceptance is evidence that the
value of the bill was in his hands, or had been received by him
from the drawer. He is liable to the payee, to the drawer, and
to every indorser. (c) He is the first person, and the last person
liable, and there is no difference in this respect between an ac-
ceptance given for accommodation, and one given for value. He
is liable to an innocent holder, though the drawer's hand be
forged; and in the suit against him it is not necessary to prove
any hand but that of the first indorser. (d) Though a bill
*115 payable to a fictitious * payee be strictly void, yet, if the
fact was known to the acceptor, he may be sued by an ·
innocent indorsee, equally as upon a note payable to bearer. (a)
And if the holder of a bank-bill cuts it into two parts, for the
sole purpose of transmitting it by mail with greater safety, this
does not affect his rights upon the bill, and he may recover upon
the production of only one of the parts, provided he shows that
he is owner of the whole, and accounts for the absence of the
other part. The parts of a divided bank bill are not separately
negotiable. (b) ¹
1
(c) The acceptor cannot set up as a defence, that when he accepted the bill the
drawer was an uncertificated bankrupt, and that all his property had passed to his
assignees. Pitt v. Chappelow, 8 M. & W. 616.
(d) Simmonds v. Parminter, 1 Wils. 185; Dingwall v. Dunster, Doug. 247; Smith
v. Chester, 1 T. R. 654; Fentum v. Pocock, 5 Taunt. 192; Farquhar v. Southey,
2 Carr. & P. 497; Lambert v. Sandford, 2 Blackf. (Ind.) 137.
(a) Gibson v. Minet, 1 H. Bl. 569; s. c. 3 T. R. 481. [See 78 & n. 1; Phillips v.
Im Thurn, L. R. 1 C. P. 463 ; 18 C. B. n. s. 694.]
(b) Patton v. Bank of S. C., 2 Nott & M'Cord, 464; Martin v. United States
Bank, 4 Wash. 253; United States Bank v. Sill, 5 Conn. 106; Farmers' Bank v.
1 Lost and Destroyed Bills.—In England
it seems to be a general rule, that if a
negotiable bill, note, or check be lost, al-
though only negotiable by indorsement
and not yet indorsed, the loser cannot
recover at law against any one of the
parties to the instrument, either on the
instrument itself or on the consideration.
Byles on B. ch. 28, 10th ed. 373; Ramuz
v. Crowe, 1 Exch. 167; Crowe v. Clay, 9
Exch. 604; Price v. Price, 16 M. & W.
232, 243. Perhaps the same rule would
be applied in its full extent in America.
Savannah Nat. Bank v. Haskins, 101 Mass.
370, 376; Tuttle v. Standish, 4 Allen, 481;
Tower v. Appleton Bank, 3 Allen, 387.
But see Aborn v. Bosworth, 1 R. I. 401.
The matter is regulated by statute in
some states.
But relief will be given in equity on a
lost negotiable instrument when it is
within the power of the court to secure
the defendant from all appreciable injury.
Savannah N. Bank v. Haskins, sup.;
Wright. Lord Maidstone, 1 Kay & J.
701, 709.
Equity has refused to interfere with
regard to instruments which have been
destroyed, on the ground that there is a
complete remedy at law. Wright v. Lord
[162]
LECT. XLIV.]
* 115
OF PERSONAL PROPERTY.
8. Of the Measure of Damages. The engagement of the drawer
and indorser of every bill is, that it shall be paid at the proper
time and place; and if it be not, the holder is entitled to indem-
nity for the loss arising from this breach of contract. The
The gen-
eral law-merchant of Europe authorizes the holder of a protested
bill immediately to redraw from the place where the bill was
payable, and in the same direct or circuitous way, as the case
may be or require, on the drawer or indorser, in order to reim-
burse himself for the principal of the bill protested, the contin-
gent expenses attending it, and the new exchange which he pays.
Reynolds, 4 Rand. 186; Bullet v. Bank of Pennsylvania, 2 Wash. 172; Hinsdale v.
Bank of Orange, 6 Wend. 378. Contra, Mayor v. Johnson, 3 Camp. 324. The
owner of the two parts of a note cut in two for transmission was allowed to recover
in equity the whole amount, upon producing one half part, and showing the other
lost, and offering an indemnity. Allen v. State Bank, 1 Dev. & Batt. Eq. 1. See
Story on Promissory Notes, [§ 111,] where the conflicting authorities on this point
are noted. In Scotland, a very summary remedy is given to the holder of bills of
exchange and promissory notes, protested for nonpayment, by allowing the protest
to be recorded under an implied consent of the debtor. This authorizes a decree by
consent, called a decree of registration, and a summary execution. 1 Bell's Comm.
4,387. If a negotiable bill be lost, the acceptor or indorser is not bound at law to
pay without the production of the bill, even though an indemnity be offered. He is
entitled to the actual possession of the bill for his own security. This rule applies
equally to the case of promissory notes. But the tender of a' sufficient indemnity
would enable the holder to recover in equity. Hansard v. Robinson, 7 B. & C. 90;
Macartney v. Graham, 2 Sim. 285; Davis v. Dodd, 4 Taunt. 602; 4 Price, 176;
Smith v. Rockwell, 2 Hill (N. Y.), 482; Smith v. Walker, 1 Smedes & Marsh. Ch.
432; Story on Bills, [§ 449;] Story on Promissory Notes, [§§ 108, 445, et seq.] The
same necessity of indemnity is required by the French law, in the case of a lost or
missing bill. Code de Com. art. 151, 152. Mr. Justice Story shows the diversity of
opinion in the United States, in the courts of law, as to the remedy at law on a lost
note, but the weight of authority is in favor of the exclusive remedy in equity.
Maidstone, 1 Kay & J. 701. And an action
at law was maintained in Des Arts v. Leg-
gett, 16 N. Y. 582; Moore v. Fall, 42 Me.
450. See Dean v. Speakman, 7 Blackf.
317; Aborn v. Bosworth, 1 R. I. 401. A
different rule is laid down in Byles on B.
ubi sup.; and the cases last cited seem to
be inconsistent with the reason given for
denying an action on lost bills, which is,
that by the custom of merchants the ac-
ceptor on paying the bill has a right to it
for his own security and as a voucher,
&c. But if those cases are right, then
a distinction which has been taken, al-
lowing an action on bills lost after ma-
turity, would seem to be sound. Thayer
v. King, 15 Ohio, 242. And it would seem
to follow also that where, as in Ramuz v.
Crowe, sup., the instrument was payable
to the payee's own order and unindorsed,
the plaintiff ought to recover, although
the contrary was there decided. Wade v.
Wade, 12 Ill. 89; Moore v. Fall, 42 Me
450, 455; Torrey v. Foss, 40 Me. 74;
Branch Bank at Mobile v. Tillman, 12
Ala. 214; Depew ". Wheelan, 6 Blackf.
485.
J
[163]
* 116
[PART V.
OF PERSONAL PROPERTY.
His indemnity requires him to draw for such an amount as will
make good the face of the bill, together with interest from the
time it ought to have been paid, and the necessary charges of
protest, postage, and broker's commission, and the current rate of
exchange at the place where the bill was to be demanded
*116 or * payable, on the place where it was drawn or negotiated.
The law does not insist upon an actual redrawing, but it
enables the holder to recover what would be the price of another
new bill, at the place where the bill was dishonored, or the loss
on the reëxchange; and this it does by giving him the face of the
protested bill, with interest according to the law of the place
where the bill was drawn, and the necessary expenses, including
the amount or price of the reëxchange. (a) But the indorser of
a bill is not entitled to recover of the drawer the damages in-
curred by the nonacceptance of the bill, unless he has paid them,
or is liable to pay them. (6) Nor is the acceptor liable in ordi-
nary cases for the extra charges on the reëxchange. He is only
chargeable for the sum specified in the bill, with interest accord-
ing to the rate established at the place of payment. The claim
(a) Mellish v. Simeon, 2 H. Bl. 378; De Tastet v. Baring, 11 East, 265; Parsons,
C. J., in Grimshaw v. Bender, 6 Mass. 157; Code de Commerce, b. 1, tit. 3, art. 177,
186; Pardessus, Droit Com. ii. art. 437; Van Leeuwen's Commentaries, 440; Story
on Bills, [§§ 400-404.] The price of reëxchange by the purchase of a new bill
would sometimes render the damages enormous, as fifty per cent or two hundred per
cent. 2 H. Bl. 378; 3 Bos. & P. 335.
(b) Kingston v. Wilson, 4 Wash. 310. Taney, C. J., in the case of the Bank of
the United States v. The United States, 2 How. 764, 765, 767, s. p.
1 Damages. The liabilities incurred
by becoming a party to a negotiable in-
strument are strictly limited by the law
merchant, but it should be understood
that different rules may be applied to
parties to a special contract not negotiable,
and not constituting the relation of debtor
and creditor. There is some uncertainty
as to the exact form of the rule, but it
would seem that special damages may be
given in respect of any consequences rea-
sonably or probably arising out of the
breach complained of, e.g., not honoring
drafts according to the promise contained
in a letter of credit to the drawers and plain-
tiffs. Prehn v. Royal Bank of Liverpool,
L. R. 5 Ex. 92. See Ilsley v. Jones, 12
Gray, 260. So substantial damages may
be recovered against a banker for dis-
honoring a customer's checks, having suf-
ficient assets in his hands to meet them.
Rollin v. Steward, 14 C. B. 595. See
Marzetti v. Williams, 1 B. & Ad. 415; 88,
n. 1.
Reëxchange. It has been held that
however the law may be in cases between
the holder and acceptor, or on a claim for
reëxchange, a drawer who has been com-
pelled, under the law governing his con-
tract, to pay a liquidated sum in lieu of
reëxchange, on accepted bills dishonored
for nonpayment, can prove against the
acceptor for that sum in addition to the
amount of the bills. Walker v. Hamilton,
[164]
LECT. XLIV.]
*116
OF PERSONAL PROPERTY.
for the reëxchange is against the drawer, who undertakes to in-
demnify the holder if the bill be not paid, and the reëxchange is
the purchase of a new bill on the country where the drawer of
the protested bill lives. (c)
In this country a different practice from that of reëxchange
was introduced while we were English colonies, and it has con-
(c) Woolsey v. Crawford, 2 Camp. 445; Napier v. Schneider, 12 East, 420; Sibe-
ly v. Tutt, McMullan, Eq. 320. In France, the claim for the reëxchange is deemed
good against the acceptor. Pothier, Traité du Con. de Change, n. 117. See Story on
Bills, [§ 398, n.] Each successive party to a bill is liable for damages on its dishonor,
according to the law of the place where his contract was made; the drawer according
to the law of the place where he drew the bill, and each indorser according to the
law of the place of their respective indorsements; for each indorsement is a new
contract. Story on Bills, [§ 397.]
•
1 De G., F. & J. 602, approving Francis
v. Rucker, Amb. 672, and explaining and
qualifying the English cases cited 116,
n. (c).
The liability of the drawer and in-
dorsers for reëxchange is well settled.
And although in the English practice a
reëxchange bill is seldom drawn, the
principle on which the damages are com-
puted, remains the same, and an indorsee
is not allowed an option to recover the
amount which he gave for the bill instead.
Evidence of a custom giving the holder
such an election has been held inadmis-
sible. Suse v. Pompe, 8 C. B. N. s. 538.
It is common in America to allow a
fixed percentage in lieu of reëxchange.
The laws of the several states must be
consulted for the statutes later than those
mentioned by the author. There are
usages to a similar effect in other states
where the legislature has not interfered.
Wood v. Watson, 53 Me. 300.
Interest. The rate of interest to be
allowed on dishonored bills, if any, as an
express or implied term of the contract,
is universally admitted to depend on the
law governing the contract; as to which,
see 95, n. 1; cases infra, and Wharton
Conf. of L. § 503; Stickney v. Jordan,
58 Me. 106. And the law is the same as
to reëxchange or a liquidated sum pay-
able in lieu of it. Walker v. Hamilton, 1
De G., F. & J. 602. It has been held
that the ler fori will prevail when the in-
terest is allowed as damages independent
of any agreement. Ayer v. Tilden, 15
Gray, 178; Ives v. Farmers' Bank, 2
Allen, 236, 239. But see 117, n. (c); In
re State Fire Ins. Co., Ex parte Mere-
dith, 9 Jur. N. s. 298; Gibbs v. Fre-
mont, 9 Exch. 25, 31. Compare Porter v.
Munger, 22 Vt. 191; Lougee v. Wash-
burn, 16 N. H. 134; Chumasero v. Gil-
bert, 24 Ill. 293.
Currency. The law governing the
contract determines the currency in which
it is payable, and, in the absence of
special difficulties created by statute,
such as the Legal Tender Act, and the
questions raised in Adams v. Cordis and
other cases mentioned inf. 117, n. (c), if
the contract is sued on in a court rendering
judgments in a different currency, the
judgment will be for such a sum in the
latter currency as most nearly approxi-
mates to the value of the amount con-
tracted for. Inf. 117, n. (c); Benners v.
Clemens, 58 Penn. St. 24. Compare Cary
v. Courtenay, 103 Mass. 316.
Adams v. Cordis is still followed in
Massachusetts. Hussey v. Farlow, 9 Al-
len, 263; Bush v. Baldrey, 11 Allen, 367,
369; Burgess v. Alliance Ins. Co., 10 Allen,
221, 226; (compare Nickerson v. Soes-
man, 98 Mass. 364, 371;) Chumasero v.
Gilbert, 24 Ill. 651. But see Wood v.
Kelso, 27 Penn. St. 241.
[165]
* 117
[PART V.
OF PERSONAL PROPERTY.
•
tinued to this day. Our usages on this subject form an excep-
tion to the commercial law of Europe, and the established rates
of damages fixed by usage or by statute in lieu of reëxchange,
prevent the necessity and difficulty of proving the price of re-
exchange. They avoid the fluctuations of exchange, and the
occasional rigor of the law-merchant.
In New York, the rule had uniformly been, to allow twenty
per cent damages on the return of foreign bills protested for
nonacceptance or nonpayment; and the damages were com-
puted on the principal sum, with interest on the aggregate
amount of the bill and damages, from the time that notice of
the protest was duly given to the drawer or indorser. The
mercantile usage was, to consider the twenty per cent an indem-
nity for consequential damages, and to require the bill
* 117 *to be paid at the rate of exchange at the time of return,
or a new bill to be furnished upon the same principles.
But the Supreme Court (a) considered the twenty per cent to
be in lieu of damages in case of reëxchange, and the demand,
with that allowance, was to be settled at the par of exchange.
This doctrine was overturned by the Court of Errors, (b) and the
holder was held to be entitled to recover, not only the twenty
per cent damages, together with interest and charges, but also
the amount of the bill liquidated by the rate of exchange, or price
of bills on England, or other place of demand in Europe, at the
time of the return of the dishonored bill, and notice to the party
to be charged; and this rule was subsequently followed in the
courts of law. (c)
(a) Hendricks v. Franklin, 4 Johns. 119; Welden v. Buck, ib. 144.
(b) Graves v. Dash, 12 Johns. 17.
(c) Denston v. Henderson, 13 Johns. 322. The general rule, independent of stat-
ute, is, that damages on protested bills are governed by the lex loci contractus, and
consequently the drawer is responsible for damages according to the law of the place
where the bill is drawn, and the indorsers according to the law of the place where
their respective indorsements were made. See [supra,] ii. 460. The proper rule, in
cases of debts payable in a foreign country, in England, for instance, and sued in
the United States, is to allow that sum in the currency of the country which
approximates most nearly to the amount to which the party is entitled in the country
where the debt is payable, and calculated by the real or established, and not by the
nominal par of exchange. Mr. Justice Story (Story on Bills, [§ 150]) says that for
ordinary commercial purposes, the par of exchange between England and America
is to estimate the pound sterling at four dollars and forty-four cents. This is the
legal rule; but for revenue purposes, by the act of Congress, of July 27, 1842, c. 66,
it was declared, that in all payments by or to the treasury, whether made in the
[166]
LECT. XLIV.]
*117
OF PERSONAL PROPERTY.
The rate of damages on bills drawn and payable within the
United States, or other parts of North America, was, in 1819,
regulated in New York by statute, (d) and the damages fixed at
five, seven and a half, or ten per cent, according to the distance
or situation of the place on which the bill was drawn. But by
the new Revised Statutes, which went into operation on the 1st
of January, 1830, the damages on bills, foreign and inland, were
made the subject of a more extensive regulation. They pro-
vide, (e) that upon bills drawn or negotiated within the state, upon
any person, at any place within the six states east of New York,
or in New Jersey, Pennsylvania, Ohio, Delaware, Maryland,
Virginia, or the District of Columbia, the damages to be allowed
United States or in foreign countries, where it becomes necessary to compute the
value of the pound sterling, it should be deemed equal to four dollars and eighty-four
cents; and that the same rule should be applied in appraising merchandise imported,
where the value is by invoice in pounds sterling. The creditor is entitled to have an
amount equal to what he must pay, in order to remit the debt to the place where it
was payable. He ought to have just as much allowed him where he sues as he
could have had if the contract had been duly performed. He ought to have the rate
of exchange allowed, if the exchange be above par, and a proportionate deduction made
if the exchange be below par, in order to have his money replaced, in England, at
exactly the same amount which he would have been entitled to receive in a suit
there. This is the manifest equity and the better law of the case. All advances
of money or property, and sales of goods, are to be accounted for, if there be
no agreement to the contrary, at the place where they are made, or authorized
to be made. Scott v. Bevan, 2 B. & Ad. 78. Lord Eldon, in Cash v. Kennion,
11 Ves. 316; Story on the Conflict of Laws, [§§ 283-286;] Smith v. Shaw, 2 Wash.
167; Grant v. Healey, 3 Sumner, 523; Consequa v. Fanning, 3 Johns. Ch. 587,
610; s. c. 17 Johns. 511; Weed v. Miller, 1 McLean, 423; Story on Bills,
[§ 151;] Story on Promissory Notes, [§ 399, n.] The cases of Martin v. Franklin,
4 Johns. 124; Scofield v. Day, 20 id. 102; Adams v. Cordis, 8 Pick. 260, declared a
contrary rule, and that a debt payable in England, and recovered in the courts of
this country, was to be paid at the par, and not at the rate of exchange. But the
weight of authority, if we connect the English and American cases together, as well
as the justice of the point, is, however, in favor of the claim of a foreign creditor to
be paid at the rate of exchange. See supra, Smith v. Shaw, 2 Wash.; and Grant v.
Healey, 3 Sumner, and the other cases. Upon this rule only can the creditor be
put in the same situation as if the debtor had punctually complied with his con-
tract, and paid at the place where he had contracted to pay. The par of exchange
between two countries is the equivalency of a certain amount of the currency of the
one in the currency of the other, supposing the currency of both to be of the pre-
cise weight and purity fixed by their respective mints. M'Culloch's Com, Diction-
ary, tit. Par of Exchange. If not, it is the amount which the standard coin of either
country would produce when coined at the mint of the other. By this rule, the par
of exchange between England and the United States, taking the English covereign
of 1839 as a standard, is $4 86.01, because it will produce that amount at the mint
(d) Laws of New York, sess. 42, c. 34.
(e) New York Revised Statutes, i. 770, 771.
[167]
* 118
[PART V.
OF PERSONAL PROPERTY.
and paid upon the usual protest for nonacceptance or nonpay-
ment, to the holder of the bill, a purchaser thereof, or of some
interest therein for a valuable consideration, shall be
*118 * three per cent upon the principal sum specified in the
bill; and upon any person at any place within the states
of North Carolina, South Carolina, Georgia, Kentucky, and Ten-
nessee, five per cent; and upon any person in any other state or
territory of the United States, or at any other place on or adja-
cent to this continent, and north of the equator, or in any British
or foreign possessions in the West Indies, or elsewhere in the
Western Atlantic Ocean, or Europe, ten per cent. The damages
are to be in lieu of interest, charges of protest, and all other
charges incurred previous to and at the time of giving notice of
nonacceptance or nonpayment. But the holder will be entitled
to demand and recover interest upon the aggregate amount of the
principal sum specified in the bill, and the damages, from the
time of notice of the protest for nonacceptance, or notice of a
demand and protest for nonpayment. If the contents of the
bill be expressed in the money of account of the United States,
the amount due thereon, and the damages allowed for the non-
payment are to be ascertained and determined, without reference
to the rate of exchange existing between New York and the place
on which the bill is drawn. But if the contents of the bill be
expressed in the money of account or currency of any foreign
country, then the amount due, exclusive of the damages, is to
be ascertained and determined by the rate of exchange, or the
value of such foreign currency, at the time of the demand of
payment.
The laws and usages of the other states vary essentially on the
subject of damages on protested bills. (a) In some cases the reg-
ulations of states approximate to each other, while in others they
are widely different. In some cases the law or rule is unlike, but
the result is nearly similar; while between other states the result
varies from four and a half to fifteen per cent.
(a) The general rule is, that the drawer of a bill is liable to the damages provided
by the laws of the country in which it is drawn, and to no other. Astor v. Benn,
Stuart's Lower Canada. 69; [Price v. Page, 24 Mo. 65.] Lut this must be taken
with some explanation; for the holder of a foreign bill, protested for nonacceptance
or nonpayment, is entitled by the law-merchant to the settled rule of damages, (when
none other is agreed to,) on reëxchange at the place where the bill was dishonored.
Vide supra, 115, 116, and Bank of U. S. v. Daniel, 12 Peters, 33, 54.
[168]
LECT. XLIV.]
* 119
OF PERSONAL PROPERTY.
But *119
In Massachusetts, the usage was to recover the amount of the
protested bill, at the par of exchange and interest, as in England,
from the time payment of the dishonored bill was demanded of
the drawee, and the charges of the protest, and ten per
cent damages in *lieu of the price of exchange. (a)
this rule was changed by statute, in 1825, and now,
by the
revised code of 1835 and 1837; and bills drawn or indorsed in
that state, and payable without the limits of the United States,
and duly protested for nonacceptance or nonpayment, are now
settled at the current rate of exchange and interest, and five per
cent damages; and if the bill be drawn upon any place beyond
the Cape of Good Hope, twenty per cent damages. The rate of
damages in Massachusetts, on inland bills, payable out of the
state, and drawn or indorsed within the state, and duly protested
for nonacceptance or nonpayment, is two per cent in addition to
the contents of the bill, with interest and costs, if payable in any
other New England state or New York; and three per cent if
payable in New Jersey, Pennsylvania, Delaware, and Maryland;
and four per cent if payable in Virginia, District of Columbia,
North Carolina, South Carolina, or Georgia; and five per cent
if payable in any other of the United States or the territories
thereof.
In Rhode Island, the rule formerly was, according to the re-
vised code in 1776, on bills returned from beyond sea, protested
for nonacceptance or nonpayment, ten per cent damages, besides
interest and costs.
The rule of damages in Connecticut, on bills returned pro-
tested, and drawn on any person in New York, is two per cent
upon the principal sum specified in the bill; on New Hampshire,
Vermont, Maine, Massachusetts, Rhode Island, New York (city
of New York excepted), New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, or territory of Columbia, three per cent; on
North Carolina, South Carolina, Ohio, or Georgia, five per cent;
on any other part of the United States, eight per cent upon such
principal sum, and to be in lieu of interest and all other charges,
and without any reference to the rate of exchange. (b)
In Pennsylvania, the rule, for a century past, was twenty per
cent damages in lieu of reëxchange; but by statute, in 1821,
(a) Grimshaw v. Bender, 6 Mass. 157.
(b) Statutes of Connecticut, 1838, 477.
[169]
*119
[PART V.
OF PERSONAL PROPERTY.
five per cent damages were allowed upon bills drawn upon any
person in any other of the United States, except Louisiana; if
on Louisiana, or any other part of North America, except the
northwest coast and Mexico, ten per cent; if on Mexico, the
Spanish Main, or the islands on the coast of Africa, fifteen per
cent; and twenty per cent upon protested bills on Europe, and
twenty-five per cent upon other foreign bills, in lieu of all charges,
except the protest, and the amount of the bill is to be ascertained
and determined at the rate of exchange.
In Maryland, the rule, by statute in 1785, is fifteen per cent
damages, and the amount of the bill ascertained at the current
rate of exchange, or the rate requisite to purchase a good bill of
the same time of payment upon the same place.
In Virginia and South Carolina, the damages, by statute, are
fifteen per cent. (c)
In North Carolina, by statute, in 1828, and revised in 1837,
damages on protested bills, drawn or indorsed in that state, and
payable in any other part of the United States, except Louisiana,
are six per cent; payable in any other part of North America,
except the northwest coast of America, or in the West India
Islands, ten per cent; payable in South America, the African
Islands, or Europe, fifteen per cent; and payable elsewhere,
twenty per cent.
The damages in Georgia, by statute, in 1827, on bills drawn
on a person in another state, and protested for nonpayment,
are five per cent; and on foreign bills protested for nonpay-
ment, are ten per cent, together with the usual expenses and
interest, and the principal is to be settled at the current rate of
exchange. (d)
The damages on bills drawn in the state of Alabama, on any
person resident within the state, are ten per cent; and on any
person out of it, and within the United States, are fifteen per
cent; and on persons out of the United States, twenty per cent
(c) Revised Statutes of Virginia, ed. 1814, i. 158.
(d) See Griffith's Law Register, passim, under the head of "Bills of Exchange and
Promissory Notes;" Revised Laws of Illinois, 1833; Prince's Dig. of Statutes of
Georgia, 1837, 2d ed. 454, 462; Revised Statutes of Indiana, 1838. And see Report
of Mr. Verplanck, from the select Committee in the House of Representatives of the
Congress of the United States on the subject of foreign bills, made March 22d, 1826.
American Jurist, No. 4, p. 398; id. No. 6, 398; Merchants' Magazine, New York,
September, 1841, 265.
[170]
LECT. XLIV.]
* 120
OF PERSONAL PROPERTY.
on the sum drawn for, together with incidental charges and
interest. (e)
In Louisiana, in 1838, the rate of damages upon protest for
nonacceptance or nonpayment of bills of exchange drawn on
and payable in foreign countries, was declared by statute to be
ten per cent; and in any other state in the United States, five per
cent, together with interest on the aggregate amount of principal
and damages. On protested bills, drawn and payable within the
United States, the damages include all charges, such as premiums
and expenses, and interest on those damages, but nothing for the
difference in exchange. (ƒ)
The damages in Tennessee, by statute in 1827, on protested
bills, over and above the principal sum, and charges of protest,
and interest on the principal sum, damages and charge of protest
from the time of notice, are three per cent on the principal sum,
if the bill be drawn upon any person in the United States; and
fifteen per cent if upon any person in any other place or state in
North America bordering on the Gulf of Mexico, or in the
West Indies; and twenty per cent*if upon a person in *120
any other part of the world. These damages are in lieu
of interest, and all other charges, except the charges of protest.
to the time of notice of the protest and demand of payment.
In Kentucky, the damages on foreign bills protested for non
acceptance or nonpayment are ten per cent. (a)
In Mississippi, the damages on inland bills within the state pro-
tested for nonpayment are five per cent; if drawn on any person
resident out of the United States, ten per cent; no damages on
protested bills drawn on a sister state. (b)
In Missouri, the damages on bills of exchange drawn or nego-
tiated within the state, and protested for nonacceptance or non-
payment, as against the drawer and indorser, are four per cent
on the principal sum; if drawn on any person out of the state,
(e) Aikin's Alabama Dig. 2d ed. 328.
(f) Robert v. Comm. Bank, 13 La. 528.
(a) There have been conflicting decisions in Kentucky, under their act of 1798,
as to the character of the bills to which the ten per cent damages applied; and the
Supreme Court of the United States, in the case of The Bank of the U. S. v.
Daniel, 12 Peters, 33, 53, felt itself bound reluctantly to follow the narrowest of the
decisions.
(b) Digest of the Laws of Mississippi, ed. 1837, 834; Sadler v. Murrah, 3 How
[Miss.] 195; Act of Mississippi, 1837.
[171]
* 121
[PART V.
OF PERSONAL PROPERTY.
•
but within the United States, ten per cent; if out of the United
States, twenty per cent; the same rate of damages as against the
acceptor on nonpayment. (c)
The damages in Indiana and Illinois on foreign bills are ten
per cent; and on bills drawn on any person out of the state, and
within the United States, are five per cent, in addition to the costs
and charges.
In Ohio, the damages on protested bills drawn on persons
residing within the United States, but not in Ohio, are six per
cent; and if out of the United States, twelve per cent over and
above the principal and interest of the bill. (d)
The inconvenience of a want of uniformity in the rule of dam-
ages in the laws of the several states is very great, and has been
strongly felt. The mischiefs to commerce, and perplexity to our
merchants, resulting from such discordant and shifting regula-
tions, have been ably, justly, and frequently urged upon the con-
sideration of Congress; and the right of Congress to regulate, by
some uniform rule, the rate and rule of recovery of damages upon
protested foreign bills, or bills drawn in one state upon another,
under the power in the Constitution "to regulate commerce with
foreign nations, and among the several states," and the expe-
diency of the exercise of that right, have been well, and, I think,
conclusively shown, in the official documents which have been
prepared on that subject. (e)
*121 9. Of Mercantile Guaranties. * A guaranty, in its enlarged
sense, is a promise to answer for the payment of some debt,
or the performance of some duty, in the case of the failure of
another person, who, in the first instance, is liable. As this
engagement is a common one in mercantile transactions, and anal-
ogous, in many respects, to that of indorser of negotiable paper,
(c) Revised Statutes of Missouri, 1835, 98.
(d) Statutes of Ohio, 1831.
(e) See the Report of Mr. Verplanck, from the select committee already referred
to, and the Report of a Committee of the Chamber of Commerce of New York, in
February, 1828. In that last document, the Committee of the Chamber of Com-
merce approve of the principle of damages on foreign bills returned under protest,
and they state that the practice of reëxchanges, which are so easily made between
the great capitals of Europe, does not exist between Europe and the United States;
nor do our business operations require them; and, until some safe and satisfactory
substitute is established, the usage, in this country, of allowing damages on protested
bills, ought to be continued.
[172]
LECT. XLIV.]
* 122
OF PERSONAL PROPERTY.
a few remarks concerning its creation and validity will not be
altogether inapplicable to the subject. (a)
In Pillans v. Van Mierop, (b) it was held that a note of guar-
anty, being in writing, and in a mercantile case, came within the
reason of a bill or note, and did not require a consideration to
appear upon the face of it. But there was a sufficient apparent
consideration in that case, and the dicta of the judges were after-
wards considered as erroneous, in Rann v. Hughes, before the
House of Lords. (c) The doctrine in the latter case was, that all
contracts, if merely in writing, and not specialties, were to be con-
sidered as parol contracts, and a consideration must be proved.
The English statute of frauds, (d) which has been adopted
throughout this country, requires, that, "upon any special prom-
ise to answer for the debt, default, or miscarriage of another per-
son, the agreement, or some memorandum or note thereof, must
be in writing and signed by the party to be charged therewith, or
some other person thereunto by him lawfully authorized." An
agreement to become a guarantor or surety for another's en-
gagement is within the statute; and if it be a guaranty for the
subsisting debt or engagement of another person, not only the en-
gagement, but the consideration for it, must appear in the writing.
The word agreement, in the statute, includes the consideration for
the promise, as well as the promise itself, for without a
consideration there is no valid agreement. This was the *122
decision in the case of Wain v. Warlters; (a) and though
*
that decision has been frequently questioned, (b) it has since re-
ceived the decided approbation of the courts of law; (c) and the
Ch. J. of the C. B. observed, that he should have so decided if he
had never heard of the case of Wain v. Warlters. The English
construction of the statute of frauds has been adopted in New
York and South Carolina, and rejected in several other states. (d)
(a) The character of letters of guaranty as commercial instruments, and the liberal
manner in which they are dealt with by the courts, are stated by Mr. Justice Story
in Lawrence v. McCalmont, 2 How. 426.
(b) 3 Burr. 1663.
(d) 29 Charles II. c. 3, sec. 4.
(c) 7 Brown P. C. 550.
(a) 5 East, 10.
(b) See Ex parte Minet, 14 Ves. 190; Ex parte Gardom, 15 id. 286.
(c) Saunders v. Wakefield, 4 B. & Ald. 595; Jenkins v. Reynolds, 3 Brod. & B. 14 ;
Morley v. Boothby, 3 Bing. 107; Newbury v. Armstrong, 6 Bing. 201.
(d) Sears v Brink, 3 Johns. 210; Leonard v. Vredenburgh, 8 id. 29; 2 Nott &
M'Cord, 372, note; Packard v. Richardson, 17 Mass. 122; Levy v. Merrill, 4 Greenl.
180; s. p. ib. 387; Sage v. Wilcox, 6 Conn. 81; Miller v. Irvine, 1 Dev. & Batt
[173]
* 123
[PART V.
OF PERSONAL PROPERTY.
The decisions have all turned upon the force of the word agreement;
and where, by statute, the word promise has been introduced, by
requiring the promise or agreement to be in writing, as in Virginia,
Tennessee, and Mississippi, the construction has not been so strict,
and the consideration of the promise need not be in writing. (e)
Where the guaranty or promise, though collateral to the prin-
cipal contract, is made at the same time with the principal con-
tract, and becomes an essential ground of the credit given to the
principal debtor, the whole is one original and entire transaction,
and the consideration extends to and sustains the promise of the
principal debtor, and also of the guarantor. No other consider-
ation need be shown than that for the original agreement, upon
which the whole debt rested, and that may be shown by parol
proof, as not being within the statute. (f) If, however,
*123 the guaranty be of a previously existing * debt of another,
a consideration is necessary to be shown, and that must
appear in writing, as part of the collateral undertaking; for the
consideration for the original debt will not attach to this subse-
(N. C.) 103. The point was extensively discussed in this last case; and the majority
of the court, under the act of 1819, which followed the English statute of frauds,
held, that it was not requisite under that statute that the consideration of the contract
should be set forth in the written memorandum of it, and that the consideration
might be shown by parol proof. The N. Y. Revised Statutes, ii. 135, require the
special promise to answer for the debt, default, or miscarriage of another person, to
be in writing, and the consideration, as well as the agreement, to be expressed.
(e) Marshall, C. J., 5 Cranch, 151, 152; Taylor v. Ross, 3 Yerger, 330; Wren v.
Pearce, 4 Smedes & M. 91. The decisions in South Carolina have changed, and the
latest doctrine overrules the case of Wain v. Warlters, and the written agreement
need not contain the consideration, (Fyler v. Givens, 3 Hill (S.C.), 48,) and if it was
required, the words value received were held to imply it sufficiently. Woodward v.
Pickett, 1 Dudley Law and Eq. [S. C.] 30. So it is now held in New York, that in a
promise to pay for the debt, default, or miscarriage of another, the words value received
is a sufficient expression of the consideration. Douglass v. Howland, 24 Wend. 35;
Watson v. M'Laren, 19 id. 557; [Miller v. Cook, 23 N. Y. 495.] The principle is, that
the consideration must clearly appear upon the guaranty itself, either by express
statement, or by necessary implication, or just inference from the language used. The
English courts have latterly very much weakened the authority of the case of Wain v.
Warlters, and they have been disinclined to take the rule very strictly, and have con-
sidered many loose expressions as implying a consideration on the face of the instru-
ment. Newbury v. Armstrong, supra; Davies v. Wilkinson, [3 Jur. 405; 8 L. J.
N. 8. Q. B. 228; 2 Per. & D. 256.] The weight of American authority does not
coincide with the rule. See How v. Kemball, 2 McLean, 103.
(f) Leonard v. Vredenburgh, 8 Johns. 29; D'Wolf v. Rabaud, 1 Peters, 476.
The doctrine in 8 Johns. is confirmed in 11 id. 221, and 13 id. 175; and in Peters'a
Rep. the doctrine is said to be founded in good sense and convenience.
[174]
•
LECT. XLIV.]
*123
OF PERSONAL PROPERTY.
quent promise; and to such a case the doctrine in Wain v. Warlters
applies. (a)¹ But if the promise to pay the debt of another arises
(a) Manrow v. Durham, 3 Hill, 584. The words value received have been held to
be a sufficient expression of consideration in a guaranty. Watson v. M’Laren, 19
Wend. 557. But this appears to reduce the statute requisition of the setting forth a
consideration to a mere formality.
•
•
•
1 Guaranty.—Statute of Frauds.—“"The
question [in determining whether a case is
within the statute or not] is, What is the
promise, not what the consideration
for that promise is; for it is plain, that the
nature of the consideration cannot affect
the terms of the promise itself, unless
it be an extinguishment of the liability of
the original party." 1 Wms. Saund. 211
d, note (1). See Browne, St. of Fr. § 214
a, et seq., criticising Furbish v. Goodnow,
98 Mass. 296; Fullam v. Adams, 37 Vt.
391, an able opinion to the effect that an
oral promise to pay the debt of another
who still remains liable is only binding
when by the arrangement the promisor
becomes the holder of a fund or security
which is appropriated to the payment of
the debt, and clothed with a duty or
trust in respect thereto, which the law
will enforce in favor of the party to
whom the promise is made. See, further,
Stoudt v. Hine, 45 Penn. St. 30; Maule v.
Bucknell, 50 Penn. St. 39. No attempt is
made to collect all the authorities in this
note.
The statute applies, wherever the con-
tract, according to the intention of the
parties, is a contract of suretyship, al-
though in fact the principal is not legally
bound. Mountstephen v. Lakeman, L.
R. 5 Q. B. 613.
The doctrine of Wain v. Warlters was
followed in England (Powers v. Fowler, 4
El. & Bl. 511), until it was expressly
enacted by St. 19 & 20 Vict. c. 97, § 3,
that the consideration need not appear in
writing. Similar acts have been passed
in some of the United States, and for
various reasons the doctrine of Wain v.
Warlters is not of general application in
America. It is therefore not advisable to
do more than mention a question which
has been much debated in New York,
whether, when a negotiable instrument
expresses a consideration, a memorandum
of a guaranty of the instrument must ex-
press the consideration of the guaranty.
The tendency of the later cases seems to
be that when the same consideration sup-
ports the note and the guaranty, a refer-
ence to the note is sufficient. Howland
v. Aitch, 38 Cal. 133; Church v. Brown,
21 N. Y. 315, 329; Cardell v. McNiel, 21
N. Y. 336; Brewster v. Silence, 4 Seld.
(8 N. Y.) 207; Draper v. Snow, 20 N. Y.
331; Fowler v. Clearwater, 35 Barb. 143;
Dunning v. Roberts, 35 Barb. 463.
Negotiability. Whether a guaranty
written on the back of a negotiable instru-
ment is itself negotiable is perhaps still
not wholly settled. The principle applied
to letters of credit, &c., ante, 84, n. (c); 85,
n. 1; 89, n. 2, would seem to have some
application here. Such guaranties are
treated as negotiable in the absence of
words implying a restriction to the first
taker in Partridge v. Davis, 20 Vt. 499;
Jones v. Berryhill, 25 Iowa, 289. See
Nevius v. Bank of Lansingburgh, 10 Mich.
547, 549. But see True v. Fuller, 21
Pick. 140; Tuttle v. Bartholomew, 12
Metc. 452; Belcher v. Smith, 7 Cush. 482;
Irish v. Cutter, 31 Me. 536; Tinker v.
McCauley, 3 Gibbs (Mich.), 188; Ten
Eyck v. Brown, 4. Chandler (Wis.), 151;
Gallagher v. White, 31 Barb. 92; Beckley
v. Eckert, 3 (Barr) Penn. St. 292; post,
124, n. (c).
Notice. The rule of the text, 123,
124, as to notice of liability under a
guaranty of negotiable paper is confirmed
by Vinal v. Richardson, 13 Allen, 521,
530; Parkman v. Brewster, 15 Gray, 271,
[175]
*123
[PART V.
OF PERSONAL PROPERTY.
out of some new and original consideration of benefit or harm
moving between the newly contracted parties, it is then not a
case within the statute. (b)
(b) Leonard v. Vredenburgh, 8 Johns. 29; Bailey v. Freeman, 11 id. 221; Hunt v.
Adams, 5 Mass. 358; Williams v. Leper, 3 Burr. 1886; Atkinson v. Carter, 2 Chitty,
403; Clark v. Small, 6 Yerger (Tenn.), 418.
272; Bickford v. Gibbs, 8 Cush. 154;
Woodstock Bank v. Downer, 27 Vt. 539;
Bull v. Bliss, 30 Vt. 127; Bashford v.
Shaw, 4 Ohio St. 263; Farrow v. Respess,
11 Ired. 170. In some cases notice is said
to be unnecessary in general terms.
Brown v. Curtiss, 2 Comst. 225; Donley
v. Camp, 22 Ala. 659.
See, as to notice of acceptance of a
guaranty, Woodstock Bank v. Downer,
27 Vt. 539; Walker v. Forbes, 25 Ala.
139; Bell v. Kellar, 13 B. Mon. (Ky.)
381; Lawton v. Maner, 9 Rich. (S. C.)
335. But see Bright v. McKnight, 1
Sneed, 158; Yancey v. Brown, 3 Sneed,
89. In Parkman v. Brewster, 15 Gray,
271, 272, it is said that when the guaranty
is of a debt which is subsequently to be
created, — when the party cannot know
beforehand whether he is ultimately to be
liable or not, nor to what extent, it is
necessary, in order to charge him, that he
should have reasonable notice of the
amount of indebtedness incurred by the
principal debtor, and of his failure to pay
it. See Vinal v. Richardson, 13 Allen,
521, 527; Whiting v. Stacy, 15 Gray, 270;
Louisville Manuf. Co. v. Welch, 10 How.
461; Beebe v. Dudley, 6 Fost. (26 N. H.)
249, 255; McDougal v. Calef, 34 N. H.
534; Cahuzac v. Samini, 29 Ala. 288;
Long v. Beckwith, 14 B. Mon. (Ky.) 184.
But see Yancey v. Brown, 3 Sneed, 89,
96. In Vinal v. Richardson, 13 Allen,
521, 532, guaranties seem to be regarded
as standing on the same footing with other
contracts where the right of action accrues
upon the performance or nonperformance
of some act by a third party. When an
absolute guaranty is given for the per-
formance of a specific act by another, the
ground on which the guarantor is dis-
charged for want of notice of nonperform-
ance by the principal, is negligence on the
part of the holder of the guaranty in
permitting the claim to slumber, when
the guarantor might reasonably suppose
it had been paid when due, or in the
usual course of business.
It is delay
without notice, and not the bringing of a
suit without notice, that is fatal to the
holder. See Protection Ins. Co. v. Davis, .
5 Allen, 54; and the note to Lent v. Padel-
ford & Douglass v. Reynolds, 2 Am. L. C.
When Liable. It has been held that
one who guarantees the collection of a
certain sum as it becomes due is not liable
unless the principal debtor is first sued to
judgment and execution with due dili-
gence, even when the latter is insolvent.
Craig v. Parkis, 40 N. Y. 181; Mosier v.
Waful, 56 Barb. 80. But see Janes v.
Scott, 59 Penn. St. 178; Bashford v. Shaw,
4 Ohio St. 263; Louisville Manuf. Co. v.
Welch, 10 How. 461, 474; Cahuzac v.
Samini, 29 Ala. 288; Donley v. Camp, 22
Ala. 659; Jones v. Greenlaw, 6 Coldw.
342; Salem Manuf. Co. v. Brower, 4 Jones
(N. C.), 429; Woodstock Bank v. Downer,
27 Vt. 539; Bull v. Bliss, 30 Vt. 127;
Dana v. Conant, 30 Vt. 246; Harris v.
Pierce, 6 Ind. 162; Sanford v. Allen, 1
Cush. 473; and dissenting opinion in
Craig v. Parkis, sup.
Construction. It must not be inferred
from the text, 124, that a guaranty is to
be construed strictly; it is to be interpreted
in the same way as other contracts. Wood
v. Priestner, L. R. 2 Ex. 66, 70; ib. 282;
Rindge v. Judson, 24 N. Y. 64. Subject to
this explanation the text is sustained by
the later cases.
—
Discharge. It is impossible in this
note to go into the cases as to discharge
[176]
LECT. XLIV.]
*123
OF PERSONAL PROPERTY.
There are no such words in the statute of frauds as original and
collateral. The promise referred to is to answer for the debt or
default of another. The term debt implies that the liability of
the principal had been precedently incurred; but a default may
arise upon an executory contract; and a promise to pay for goods
to be furnished to another is a collateral promise to pay on the
other's default, provided the credit was in the first instance given
solely to the other. If the whole credit be not given to the per-
son who comes in to answer for another, his undertaking is col-
lateral, and must be in writing. (c) If the original debt remains
a subsisting debt, a promise by a third person to pay it, in con-
sideration of forbearance, is a collateral promise. (d)
After a valid guaranty has been made, the rights of the parties,
in the relative character of principal and surety, afford an interest-
ing subject of inquiry, and the doctrine in the case of negotiable
paper, as to demand and notice, has only a qualified application
to the guarantor. Thus it has been held, that the guarantor of a
note could be discharged by the laches of the holder, as by neglect
(c) Leland v. Creyon, 1 M'Cord, 100.
(d) Watson v. Randall, 20 Wend. 201.
of guarantors and sureties. The general
principle is, that if the person secured
does any act injurious to the surety or in-
consistent with his rights, or if he omits
to do any act which his duty enjoins him
to do, and the omission proves injurious
to the surety, the latter will be discharged.
Watts v. Shuttleworth, 5 Hurlst. & N.
235. The rights of the surety depend
rather on a principle of equity than upon
contract, for instance, the right of sub-
rogation mentioned in the text, 124, which
is said not to be affected by the surety's
ignorance of the existence of the securities.
Pearl v. Deacon, 24 Beav. 186, 191; 1 De
G. & J. 461; Newton v. Chorlton, 10 Hare,
646, 651; Lake v. Brutton, 8 De G., M. &
G. 440, 452; 39 Eng. L. & Eq. 436. Hid-
den v. Bishop, 5 R. I. 29. See Kramer's
Appeal, 37 Penn. St. 71. A subsequent
material variation of the contract with
the principal will discharge the surety;
General Steam Nav. Co. v. Rolt, 6 C. B.
N. s. 550; unless the surety concurs.
VOL. III.
12
Cases cited ante, 112, n. 1. But mere
delay of a creditor in enforcing payment
will not. Price v. Kirkham, 3 Hurlst. &
Colt. 437; Pittsburg, Fort Wayne, &
Chicago R. Co. v. Shaeffer, 59 Penn. St.
350.
The doctrine of Pain v. Packard, 124,
n. (c), is said in the note to that case, 2
Am. L. C. 5th ed. 415, to stand on the
loss of the debt through the delay and
subsequent insolvency of the principal,
where it is adopted, but to be generally
repudiated in this country, except when a
statute gives the surety the right to require
the creditor to proceed against the prin-
cipal on pain of forfeiting his remedy
against the surety. See, further, the note
to United States v. Howell; Harris v.
Brooks, &c., 2 Am. L. C.
A continuing guaranty until notice to
the contrary is not revoked by the death
of the guarantor. Bradbury v. Morgan,
1 Hurlst. & C. 249. But see Harriss v.
Fawcett, L. R. 15 Eq. 311.
[177]
i
* 124
[PART V.
OF PERSONAL PROPERTY.
**
to make demand of payment of the maker, and to give notice of
nonpayment to the guarantor, provided the maker was solvent when
the note fell due, and became insolvent afterwards. The
*124 rule is not * so strict as in the case of mere negotiable
paper, and the neglect to give notice must have produced
some loss or prejudice to the guarantor. (a) The indorser of
negotiable paper is entitled to strict notice, but the guarantor is
only entitled to notice when he may be prejudiced by the want
of it. (b) And in the case of the absolute guaranty of the act of
another, as of his promise to pay a debt, or perform a special
(a) A commercial guaranty is not a negotiable paper. See supra, ii. 549.
(b) Oxford Bank v. Haynes, 8 Pick. 423; Talbot v. Gay, 18 Pick. 534. The opin-
ion of Duncan, J., in Gibbs v. Cannon, 9 Serg & R. 202, is to the same point. See,
also, Philips v. Astling, 2 Taunt. 206; Warrington v. Furbor, 8 East, 242; Ruffin,
J., in Grice v. Ricks, 3 Dev. (N. C.) 65; Wildes v. Savage, 1 Story, 26. A guar-
antor not being a party to a promissory note, and who guarantees its payment if not
paid at maturity, is not entitled to demand or notice of its dishonor. Walton v.
Mascall, 13 M. & W. 72, 452; Cooper v. Page, 24 Me. 73. The cases are somewhat
contradictory on this point; but in Lewis v. Brewster, 2 McLean, 21, and in Foote v.
Brown, ib. 369, the cases were reviewed by Judge McLean; the rule was considered
as settled, that the guarantor of a promissory note was entitled to notice of nonpay-
ment by the drawer [holder] unless the drawer was insolvent at the time the note
became due, and the declaration must aver it. It was held, in Edmondston v.
Drake, 5 Peters, 624; Douglass v. Reynolds, 7 Peters, 113; Adams v. Jones, 12
Peters, 207; Craft v. Isham, 13 Conn. 28; Mussey v. Rayner, 22 Pick. 223; Lawson
v. Townes, 2 Ala. 373; Oaks v. Weller, 13 Vt. 106; and in Sollee v. Meugy, 1 Bailey
(S. C.), 620, that the party giving a letter of guaranty has a right to know, by notice
in a reasonable time, whether it is accepted or acted upon, and the amount of goods
or credit given on the faith of it, and more especially if it be a continuing guaranty.
Upon a guaranty for future advances, the party making the advances is bound to
give notice to the guarantor of his acceptance thereof, unless the agreement to
accept be contemporaneous with the guaranty. Wildes v. Savage, 1 Story, 26;
Lane v. Levillian, 4 Ark. 76; Howe v. Nickels, 22 Me. 175. In the case of a guar-
anty limited to a single transaction, the guarantor is entitled to notice of the advance
or credit given under it, within a reasonable time; whereas, in the case of a continu-
ing guaranty, in which a series of transactions is in contemplation, it will be sufficient
to give notice of the amount for which the guarantor is responsible, within a reason-
able time after the transactions are closed, and notice of each successive transaction
as it arises need not be given. Reasonable diligence to make demand, and, in case
of nonpayment, to give notice of nonpayment, is required, in the case of the guaranty
of a debt, or the guarantor will be discharged to the amount only of the loss or
damage he may have sustained from the want of such demand and notice. Doug-
lass v. Reynolds, supra; Bradley v. Cary, 8 Greenl. 234, s. P.; Adcock v. Fleming,
2 Dev. & Batt. 225; 16 La. 543, 8. P. On the other hand, the surety in a bond for
the fidelity of a party for an indefinite period cannot determine his liability at
pleasure by giving notice; and this is the English rule both at law and in equity
Calvert v. Gordon, 3 Mann. & R. 124; 2 Sim. 253; 4 Russ. 581.
[178]
LECT. XLIV.]
* 124
OF PERSONAL PROPERTY.
agreement, the doctrine of notice applicable to negotiable paper
does not apply. The guarantor must inquire of his principal, or
take notice of his default at his peril, unless notice be required
by the contract of guaranty, or there has been a negligence on
the part of the holder, and the guarantor has sustained damage
to himself. (c) But when the contract of a guarantor or surety
is duly ascertained and understood, by a fair and liberal construc-
tion of the instrument, the principle is well settled that the case
must be brought strictly within the terms of the guaranty, and
the liability of the surety cannot be extended by implication. (d)
(c) Somersall v. Barneby, Cro. Jac. 287; Brookbank v. Taylor, ib. 685; Birks v.
Trippet, 1 Saund. 32; Allen v. Rightmere, 20 Johns. 366; Douglass v. Howland, 24
Wend. 35; Whitney v. Groot, ib. 82; Breed v. Hillhouse, 7 Conn. 523; Thrasher v.
Ely, 2 Smedes & M. 139. A guaranty is not separately negotiable. It is a special
contract, which can be enforced only by a party to it. Gibson, C. J., in M'Doal v.
Yeomans, 8 Watts, 361; Watson v. M'Laren, 19 Wend. 557; s. c. 26 Wend. 425.
The guaranty is not negotiable so as to entitle an assignee to sue in his own name,
unless it be written upon the note, or be on a separate paper attached to it. As to a
guaranty on the face of a bill of exchange, not limited to any particular person, but
to the payee or his order, or to bearer, Mr. Justice Story (Story on Bills [§ 458])
thinks the better doctrine to be, that it is, upon general principles, as well as upon
the usage of the commercial world, a complete guaranty to every successive person
who shall become the holder of the bill. Many of the authorities go so far as to
maintain that the same doctrine applies to such a guaranty upon a separate paper.
Adams v. Jones, 12 Peters, 207; Walton v. Dodson, 3 C. & P. 163; Bradley v. Cary,
8 Greenl. 234; Verplanck, Senator, in M'Laren v. Watson, 26 Wend. 425. A
surety, after being sued, and before payment, may bring a suit for indemnity. So he
may, if the debtor is in a state of insolvency, or if the debt has become due and
remains unpaid. These are statute and just provisions in the Louisiana Civil Code,
art. 3026. See also, Webb v. Pond, 19 Wend. 423, s. P.; and by statute, in 1821, in
Alabama, the surety may require the creditor to put his bond in suit forthwith, and
proceed therein with due diligence, and in default thereof, the surety will be dis-
charged. So in Arkansas, by statute, the creditor must sue the principal debtor
within thirty days after notice, or the surety will be exonerated. This is an altera-
tion of the general rule, that a surety cannot require the creditor to sue the principal
debtor before resorting to him for payment. His remedy is to pay the debt, and
take the creditor's rights against the debtor by subrogation. Griffing v. Caldwell,
1 Rob. (La.) 15. This is the settled English equity doctrine; and the cases of Pain
v. Packard, 13 Johns. 174, King v. Baldwin, 17 id. 384, were evidently a departure
from it, and they have been followed by some other of the American cases. [Rem-
sen v. Beekman, 25 N. Y. 552.]
(d) In Birckhead v. Brown, 5 Hill (N. Y.), 635, it was held, that there must not be
any departure whatever from the strict terms of the contract, as regards a surety or
guarantor, and if he agreed to sustain drafts at sixty days' sight he is not bound by
drafts at ninety days' sight; and if the creditor by any valid agreement disables him-
self from suing the debtor even for a single day, the surety is released. On the other
hand, a creditor is not bound to active diligence to preserve his rights. He may merely
remain passive. Theobald on Principal and Surety, 80; King v. Baldwin, 2 Johns.
[179]
* 124
[PART V.
OF PERSONAL PROPERTY.
The claim against a surety is strictissimi juris; and it is a well-
settled principle, that a surety who pays the debt of his principal
will, in a clear case in equity, be substituted in the place of the
creditor to all liens held by him to secure the payment of his
debt, and the creditor is bound to preserve them unimpaired when
he intends to look to the surety for payment. (e) But a further
pursuit of this subject of guaranty would not strictly appertain to
the doctrine of negotiable paper; (ƒ) and I shall conclude the
present general outline of that subject with some notice of the
principal publications on bills and notes.
Ch. 559; Johnson v. The Planters' Bank, 4 Smedes & M. 165. This is the true
principle to be extracted from all the cases. 3 Meriv. 272-279; 8 Bing. 156; 17
Wend. 179. But for the better protection of the surety, it is a general rule that
there can be no recovery against him, where his character appears on the face of the
instrument, without declaring specially on the contract. Bronson, C. J., 1 Denio,
106. It was adjudged in the above case of Johnson v. The Planters' Bank, that the
surety was not discharged by a failure of the creditor to present his claim to the
administrator of the principal in due season.
(e) Bacon v. Chesney, 1 Stark. 192; Myers v. Edge, 7 T. R. 254; Combe v.
Woolf, 8 Bing. 156; Walsh v. Bailie, 10 Johns. 180; Lanuse v. Barker, ib. 327, 328;
Dobbin v. Bradley, 17 Wend. 422; Cheesebrough v. Millard, 1 Johns. Ch. 409, 413;
Goswiler's Estate, 3 Penn. 203; Hereford v. Chase, 1 Rob. (La.) 212; Wade v. Green,
3 Humph. (Tenn.) 547. See, also, infra, iv. 377; Bell's Principles of the Law of
Scotland, 77. But the substitution or subrogation exists, not in favor of all who pay
a debt, but only of those who, being bound for it, discharge it. Harrison v. Bisland,
5 Rob. (La.) 204.
There seems to be some confusion in the cases as to the construction and effect of
the word guaranty. It may be considered, as Mr. Justice Story observed, a clear prin-
ciple, that the contract of guaranty is not an absolute but a conditional contract, and
this strict construction is not to be departed from unless the contract requires it, and
the guarantor is entitled to demand and notice within a reasonable time, as in common
cases of guaranty. See Story on Promissory Notes, [§§ 470-474,] where the modern
American cases are criticised and examined. And on this subject of surety it is
adjudged, that a judgment obtained against him does not change the character of his
debt, nor his relation to his principal debtor, and delay granted to the latter will
release the former, in the same manner as if no judgment had been obtained. Gus-
tine v. Union Bank, 10 Rob. (La.) 412. But though the principal debtor be dis-
charged from his obligation by some personal disability, as coverture, infancy, the
surety will be held bound. Kimball v. Newell, 7 Hill (N. Y.), 116. This was also
the conclusion of the civil law. Domat, b. 3, iv. sec. 1, art. 10.
(f) The student will find the law concerning mercantile guaranties, and of principal
and surety, fully examined, and the substance of the numerous cases well digested, in
Fell's Treatise on Mercantile Guaranties, and in Theobald's Treatise on the Law of
Principal and Surety, published at London, in 1832, and at Philadelphia, in 1833.
Mr. Sedgwick, in his Treatise on the Measure of Damages, devotes a whole chapter
(ch. 11) to the rule of damages growing out of the contract of principal and surety,
and the numerous cases are fully and critically examined, with his usual acuteness
and candor.
[180]
LECT. X IV.]
* 126
OF PERSONAL PROPERTY.
10. Of the Principal Treatises on Bills and Notes. - It would have
been impossible to enter into greater detail of the distinctions
and minute provisions which apply to negotiable paper, without
giving undue proportion to this branch of these elementary
disquisitions. The treatises and leading cases must be *125
thoroughly understood before the student can expect to
*
be master of this very technical branch of commercial law; and
a brief notice of the best works on the subject will serve to direct
his inquiries.
The earliest English work on bills is in Malynes's Lex Merca-
toria. The author was a merchant, and the work was compiled
in the reign of King James I., and dedicated to the king. That
part relating to bills of exchange is brief, loose, and scanty, but
it contains the rules and mercantile usages then prevailing in
England and other commercial countries. It was required, at
that early day, that the bill should be presented for acceptance,
and again for payment, with diligence, and at seasonable hours,
and on proper days; and the default in each case was to be noted
by a notary, and information of it sent to the drawer with all ex-
pedition, to enable him to secure himself. If the drawee would
not accept, any other person was allowed to accept for the honor
of the bill. Malynes takes no notice of promissory notes or
checks, and he even laments that negotiable notes were unknown
to the law of England.
The next English treatise on the subject was that by Marius,
published in the year 1651, and that treatise has been referred
to by Lord Holt and Lord Kenyon, as a very respectable
work. * Marius followed the business of a notary public *126
at the Royal Exchange, in London, for twenty-four years,
and he had, of course, perfect experience in all the mercantile
usages of the times. His work is far more particular, formal,
and exact than that of Malynes. The three days of grace were
then in use; and Marius decides the very point which has been
again and again decided, and even in our own courts, that if the
third day of grace falls on Sunday, or a holiday, or on no day of
business, the money must be demanded on the second day, and
he lays down the rule of diligence in giving notice with more
severity than is consistent with the modern practice; (a) for he
stated, that the notice of the default of payment must be sent off
(a) See ante, 106.
[181]
* 127
[PART V.
OF PERSONAL PROPERTY.
by the very first post after the bill falls due. He says, likewise,
that verbal acceptances were good, and that you may accept for
part, and have the bill protested for the residue. It is quite
amusing to perceive that many of the points which have been liti-
gated, or stated in our courts, within the last thirty years, are to
be found in Marius; so true it is, that case after case, and point
after point, on all the branches of the law, are constantly arising
in the courts of justice, and discussed as doubtful or new points,
merely because those who raise them are not thorough masters of
their profession. (b) The next writer who treats on the subject of
bills is Molloy. He was a barrister in the reign of Charles II.;
and in his extensive compilation, De Jure Maritimo, which was
first published in 1676, he cast a rapid glance over the law con-
cerning bills of exchange; but that part of his work is far inferior
to the treatise of Marius.
Beawes's Lex Mercatoria Rediviva is a much superior work to
that of Malynes, and it appears, by its very title, to have been
intended as a substitute. It contains a full and very valuable
collection of the rules and usages of law on the subject of bills
of exchange. Promissory notes were then taken notice of, though
they had not been so much as alluded to in the formal and didac-
tic treatise of Marius. They were not introduced into general
use until near the close of the reign of Charles II., and for this
we have the authority of Lord, Holt in Buller v. Crips. (c)
*127 Beawes is frequently cited in our * books as an authority
on mercantile customs; and a new and enlarged edition
of his work was published by Mr. Chitty, in 1813. The next
work on the subject of bills and notes was by Cunningham, and
it was published about the middle of the last century. It con-
sisted chiefly of a compilation of adjudged cases, without much
method and observation. It was mentioned by the English judges
as a very good book; but it fell into perfect oblivion as soon as
Kyd's treatise on bills and notes appeared, in the year 1790. Mr.
Kyd made free use of Marius and Beawes, and he engrafted into
his work the substance of all the judicial decisions down to that
time. His work became, therefore, a very valuable digest to the
practising lawyer, and particularly as during the times of Lord
(6) Multa ignoramus, quæ nobis non laterent si veterum lectio nobis esset familiaris.
2 Inst. 166.
(c) 6 Mod. 29.
[182]
LECT. XLIV.]
* 128
OF PERSONAL PROPERTY.
Holt and Lord Mansfield the law concerning negotiable paper
was extensively discussed and vastly improved. Mr. Bayley, after-
wards a judge of the K. B., published in 1789, a little before the
work of Kyd, a small manual or digest of the principles which
govern the negotiability of bills and notes. As a collection of
rules, expressed with sententious brevity and perfect precision, it
is admirable. In a subsequent edition, he stated also the cases
from which his principles were deduced. A work of more full
detail and of a more scientific cast seemed to be still wanting on
the subject, and that was well supplied by Mr. Chitty's treatise
on bills, notes, and checks, first published in 1799. He had re-
course, though in a sparing degree, to the treatise of Pothier, for
illustration of the rules of this part of the general law-mer-
chant. (a) It is obvious that a more free and liberal spirit of
inquiry distinguishes the professional treatises of the present age
from those of former periods. The works of Park and Marshall
on Insurance, and Abbott on Shipping, and Chitty and Story on
Bills, and Jones and Story on Bailment, have all been enriched
by the profound and classical productions of continental Europe
on commercial jurisprudence.
*128
The treatise of Pothier on bills is finished with the same
order and justness of proportion, the same comprehensiveness
of plan and clearness of analysis which distinguish his
other * treatises on contracts. His work is essentially a
commentary upon the French ordinance of 1673; and he
had ample materials in the commentary of M. Jousse, and in the
treatises on the same subject by Dupuy de la Serra, and by
Savary, to which he frequently refers. He also cites two foreign
works of learning, on the doctrine of negotiable paper, and those
are Scacchaia de Commerciis et Cambio, and Heineccius's trea-
tise, entitled Elementa Juris Cambialis. The latter work contains
very full and satisfactory evidence of the professional erudition of
the Germans on subjects of maritime law. (a) Heineccius refers
(a) The Treatise on Bills of Exchange, by Mr. Justice Story, which appeared since
the fourth edition of this work, has copied largely from Chitty, and it is full and
methodical, and executed with his masterly ability.
(a) Mr. Justice Story, in his Treatise on Bills of Exchange and Promissory
Notes, has enriched his work with copious citations and illustrations drawn from
Heineccius, as well as from other continental civilians; and they are undoubtedly
the most elaborate and complete treatises extant on the elementary principles of the
subject.
[183].
* 128
[PART V.
OF PERSONAL PROPERTY.
to the ordinances of various German states, and of several of the
Hanse towns, relating to commercial paper, and he cites eight or
ten professed German treatises on bills of exchange. (b)
It has been a frequent practice on the European continent, to
reduce the law concerning bills, as well as concerning other mar-
itime subjects, into system, by ordinance. The commercial ordi-
nance of France, in 1673, digested the law of bills of exchange,
and it was, with some alterations and amendments, incorporated
into the commercial code of 1807. Since the publication of the
new code, M. Pardessus has written a valuable commentary on
this, as well as on other parts of the code. He writes without
any parade of learning, and with the clearness, order, and severe
simplicity of Pothier. There is also a clear and concise summary
of the law concerning negotiable paper in M. Merlin's Répertoire
de Jurisprudence, under the title of Lettre et Billet de Change.
Thompson's treatise on the law of bills and notes in Scotland
combines the Scotch and English law upon the subject, and is
spoken of in very high terms by persons entirely competent to
judge of its value. The law concerning negotiable paper has at
length become a science, which can be studied with infinite ad-
vantage in the various codes, treatises, and judicial decisions; for,
in them, every possible view of the doctrine, in all its branches,
has been considered, its rules established, and its limitations
accurately defined.
(b) See Heineccii Opera, vi. in fine.
[184]
LECT. XLV.]
* 130
OF PERSONAL PROPERTY.
LECTURE XLV.
OF THE TITLE TO MERCHANT VESSELS.
THE utility of an outline of the code of maritime law must con-
sist essentially in the precision, as well as in the perspicuity, with
which its principles are illustrated by a series of positive rules.
Every work on this subject will unavoidably become, in a degree,
dry and minute in the detail; but it would be destitute of real
value, unless it were practical in its design and application. The
law concerning shipping and seamen, negotiable paper, and ma-
rine insurance, controls the most enterprising and the most busy
concerns of mankind; and it consists of a system of principles and
facts, in the shape of usages, regulations, and precedents, which
are assimilated in the codes of all commercial nations, and are as
distinguished for simplicity of design and equity of purpose as
they are for the variety and minuteness of their provisions. I
have wished (and I hope not entirely without success) to be able
to give to the student a faithful summary of the doctrines of com-
mercial jurisprudence, and to awaken in his breast a generous
zeal to become familiar with the leading judicial decisions, and
especially with the writings of those great masters in the science
of maritime law whose talents and learning have enabled them
to digest and adorn it.
The law of shipping may be conveniently arranged under the
following general heads: 1. Of the title to vessels. 2. Of the per-
sons employed in the navigation of merchant ships. 3. Of the
contract of affreightment. This arrangement is very nearly the
same with that pursued by Lord Tenterden, in his trea-
tise on the subject, and which, * after comparing it with *130
the method in which these various topics have been dis-
cussed by other writers, I do not think can be essentially im-
proved. It has been substantially adopted by Mr. Holt, in his
[185]
# 180
[PART V.
OF PERSONAL PROPERTY.
66
System of the Shipping and Navigation Laws of Great Britain ;"
and still more closely followed by M. Jacobsen, the Danish civil-
ian, in his treatise on the "Laws of the Sea." The law of ship-
ping, as thus arranged and divided, will form the subject of this,
and of the two succeeding lectures.
1. Requisites to a Valid Title. The title to a ship, acquired by
purchase (for title by capture has been already considered), (a)
passes by writing. A bill of sale is the true and proper muni-
ment of title to a ship, and one which the maritime courts of all
nations will look for, and, in their ordinary practice, require. (b)
In Scotland, a written conveyance of property in ships has, by
custom, become essential; and, in England, it is made absolutely
necessary by statute, with regard to British subjects. (c) Pos-
session of a ship, and acts of ownership, will, in this, as in other
cases of property, be presumptive evidence of title, without the
aid of documentary proof, and will stand good until that pre-
sumption be destroyed by contrary proof; (d) and a sale and
delivery of a ship, without any bill of sale, writing, or instru-
ment, will be good at law, as between the parties. (e)¹ But the
(a) i. 101-104.
(b) Lord Stowell, in The Sisters, 5 C. Rob. 155; Story, J., 1 Mason, 139;
Weston v. Penniman, ib. 306; 2 id. 435; Ohl v. Eagle Insurance Company, 4 id. 390;
Code de Commerce, art. 195.
(c) Statute 34 George III. c. 68, and reënacted 3 and 4 William IV. c. 55, sec. 31.
See, also, Camden v. Anderson, 5 T. R. 709; The Sisters, 5 C. Rob. 155; Bell's
Commentaries on the Laws of Scotland, i. 152. By the act of Congress of December,
1792, c. 146, an instrument in writing is necessary to entitle the purchaser to a new
register.
(d) Robertson v. French, 4 East, 130; Sutton v. Buck, 2 Taunt. 302. Upon indict-
ment in the Circuit Court of the U. S. of seamen for a revolt, it was held, that the
ownership of the vessel determined her national character, and that the ownership
might be proved in the same manner as that of any other chattel. The vessel was
registered as an American vessel, and was on a whaling voyage without a license,
and the register was held to be sufficient evidence of title to sustain the indictment.
United States v. Jenkins, U. S. Cir. C. for New York, August, 1838.
(e) Taggard v. Loring, 16 Mass. 336; Wendover v. Hogeboom, 7 Johns. 308;
Bixby v. Franklin Ins. Co., 8 Pick. 86. The principle is, that property in a vessel
may be presumptively sustained by possession, or other indicia of ownership than
the production of the register. Abbott on Shipping, 5th Amer. ed. Boston, 1846,
113.
1 The Amelie, 6 Wall. 18, 30; Rice v.
McLarren, 42 Me. 157, 166; McMahon v.
Davidson, 12 Minn. 357, 369, 370; The
Active, Olcott, 286; Fontaine v. Beers,
19 Ala. 722.
•
[186]
LECT. XLV.]
* 132
OF PERSONAL PROPERTY.
presumption of title arising from possession may easily be de-
stroyed; and the general rule is, that no person can convey who
has no title; and the mere fact of possession by the vendor
is not, of itself, *sufficient to give a title. There is no case *131
in the English law in which it has been decided that a trans-
fer by parol is sufficient to pass the title. Though the master of
a ship, as we shall presently see, be clothed with great powers,
connected with the employment and navigation of the ship, he
has no authority to sell, unless in a case of extreme necessity;
and then he has an implied authority to exercise his discretion for
the benefit of all concerned. (a)
It has frequently been the case, that the sale of a ship has been
procured in foreign countries, by order of some admiralty court,
as a vessel unfit for service. Such sales are apt to be collusively
conducted; and the English courts of common law do not regard
them as binding, even though made bona fide, and for the actual
as well as the intended benefit of the parties in interest. They
hold, that there is no adequate foundation for such authority in
the legitimate powers of the admiralty courts. They have no such
power by the law of nations, and no such power is exercised by
the Court of Admiralty at Westminster. (b) Lord Stowell, on the
other hand, considered the practice which obtained in the vice-
admiralty courts abroad, of ordering a sale, under the superin-
tendence of the court, to be very convenient, when the fact of
necessity was proved; and he seemed to consider, that it would
be a defect in the law of England, if a practice so conducive to
the public utility could not legally be maintained. The Court of
Admiralty, feeling the expediency of the power, would go far to
support the title of the purchaser. (c) The proceeding, which is
condemned by the courts of law, is a voluntary proceeding, in-
stituted by the master himself on petition for a sale, founded on
a survey, proof, and report of the unnavigable and irrepa-
rable condition of the vessel. It is essentially the act of *132
the master, under the auxiliary sanction of the court,
founded merely upon a survey of the ship, to see whether she
*
(a) Hayman v. Molton, 5 Esp. 65; Reid v. Darby, 10 East, 143; Robertson
v. Clarke, 1 Bing. 445. And see infra, 171.
(b) Reid v. Darby, 10 East, 143; Morris v. Robinson, 3 B. & C. 196.
(c) Fanny and Elmira, 1 Edw. Adm. 117; The Warrior, 2 Dods. 288, 293, 295;
Story, J., in the case of the schooner Tilton, 5 Mason, 474.
[187]
* 133
[PART V.
OF PERSONAL PROPERTY.
be seaworthy; and it is to be distinguished from the case in
which the admiralty has regular jurisdiction of the subject, by a
proceeding in rem, founded on some adverse claim. In such cases,
the power of sale, in the sound discretion of the court, is indis-
putable, and binds all the world. This is a proposition of univer-
sal law, founded on the commercial intercourse of states, and the
jus gentium. (a) So, as we have already seen in a former vol-
ume, (b) capture by a public enemy devests the title of the true
owner, and transfers it to the captor, after a regular condemna-
tion by a prize court of the sovereign of the captor. (c)
Upon the sale of a ship in port, delivery of possession is requi-
site to make the title perfect. If the buyer suffers the seller to
remain in possession, and act as owner, and the seller should be-
come bankrupt, the property would be liable to his creditors, and,
in some cases, also to judgment creditors on execution. The same
rule exists in the case of the mortgage of a ship; but where a sale
is by a part owner, it is similar to the sale of a ship at sea, and
actual delivery cannot take place. (d) Delivery of the muniments
of title will be sufficient, unless the part owner be himself in the
actual possession. (e) If the ship be sold while abroad, or at sea,
a delivery of the grand bill of sale, and other documents, transfers
the property, as in the case of the delivery of the key of a ware-
house. It is all the delivery that the circumstances of the case
admit of; and it is giving to the buyer or mortgagee the ability
to take actual possession, and which he must do as soon as
*133 possible * on the return of the ship. If the buyer takes
possession of a ship sold while at sea, within a reasonable
time after her arrival in port, his title will prevail against that of
a subsequent purchaser or attaching creditor. (a) But the buyer
(a) The Court of Admiralty has an undoubted right, in cases of bottomry, sal-
vage, and wages, brought before the court, to sell the vessel, and to confer a good
title valid against all the world, and without a delivery of the ship's register. This
is the municipal law of England, and the maritime law of the civilized world. Dr.
Lushington, in the case of the Tremont, Am. Jur. for April, 1841; [1 Wm. Rob.
Adm. 163.]
(b) See i. 102.
(c) In the case of The Attorney General v. Norstedt, 3 Price, 97, a judicial sale of
a vessel as derelict by the Instance Court of the Admiralty was held to bind even
the Crown's right of seizure for a previous forfeiture.
(d) Winsor v. McLellan, 2 Story, 492.
(e) Addis v. Baker, 1 Anst. 222; Abbott on Shipping, 5th Am. ed. 1846, 34.
(a) Ex parte Matthews, 2 Ves. 272; Hall v. Gurney, Cooke's B. L. [ch. 8, § 11,
842; Mair v. Glennie, 4 M. & S. 240; Joy v. Sears, 9 Pick. 4; Abbott on Shipping,
5th Am. ed. 1846, 37.
[188]
LECT. XLV.]
* 134
OF PERSONAL PROPERTY.
takes subject to all incumbrances, and to all lawful contracts
made by the master respecting the employment and hypotheca-
tion of the ship prior to notice of the transfer. (b)
The English cases speak of the transfer of a ship at sea by the
assignment of the grand bill of sale, and that expression is under-
stood to refer to the instrument whereby the ship was originally
transferred from the builder to the owner, or first purchaser. But
the American cases speak simply of a bill of sale, and usually refer
to the instrument or transfer from the last proprietor while the
vessel is at sea, and which is sufficient to pass the property, if
accompanied by the act of taking possession as soon as conven-
iently may be after the vessel arrives in port. (c)
2. Who is liable as Owner. There is no doubt that the owner
is personally liable for necessaries furnished and repairs made to
a ship, by order of the master; (d) and the great point for dis-
cussion is, who is to be regarded as contracting party and owner,
pro hac vice. (e) The ownership in relation to this subject is not
determined by the register, and the true question, in matters rel-
ative to repairs, is, " upon whose credit was the work done?" (ƒ)¹
Nor is a regular bill of sale of the property essential to
exempt the former owner * from responsibility for supplies *134
furnished. But where the contract of sale is made, and
possession delivered, the circumstance that the naked legal title
(b) Mair v. Glennie, 4 M. & S. 240; Hay v. Fairbairn, 2 B. & Ald. 193; Atkinson
v. Maling, 2 T. R. 462; Portland Bank v. Stubbs, 6 Mass. 422; Putnam v. Dutch,
8 Mass. 287; Badlam v. Tucker, 1 Pick. 396. As to debts which are, by the French
law, privileged, and liens on the ship, see infra, 168.
(c) Portland Bank v. Stacey, 4 Mass. 663; Wheeler v. Sumner, 4 Mason, 183. A
bill of sale of a ship, with her apparel, appurtenances, &c., includes all things that
are necessary and incidental to the working of the ship. Abbott on Shipping, 7, 8,
5th Am ed. 1846.
(d) Webster v. Seekamp, 4 B. & Ald. 352. The owner is, of course, liable, unless
the credit is given to others. So, the captain is liable, if he orders the repairs,
unless the credit was given to the owner. Essery v. Cobb, 5 C. & P. 358; Cox v. Reid,
1 id. 602. For necessary supplies to a vessel, the owner, master, and charterer are
all liable; and the remedy against each remains good, unless credit be given to one
exclusively. Henshaw v. Rollins, 5 La. 335. The owner, who has the mere legal
title, but not the control and management of the vessel, or the right to receive her
freight and earnings, is not responsible for supplies and necessaries. Duff v. Bayard,
4 Watts & S. 240.
(e) Briggs v. Wilkinson, 7 B. & C. 30.
(ƒ) Lord Tenterden, in Jennings v. Griffiths, Ryan & M. 43; Reeve v. Davis,
1 Ad. & El. 312.
1 But see 138, n. 1.
[189]
* 135
[PART V.
OF PERSONAL PROPERTY.
remains in the vendor for his security, does not render him liable
as owner on the contracts, or for the conduct of the mas-
ter. (a)
It has been a disputed question, whether the mortgagee of a
ship, before he takes possession, be liable to the burdens and
entitled to the benefits belonging to the owner. In the case of
Chinnery v. Blackburne, (b) it was held by the K. B. that the
mortgagor in such a case, and not the mortgagee, was to be
deemed owner, and entitled to the freight, and liable for the
repairs and other expenses. The same decision was made by
the C. B. in Jackson v. Vernon. (c) But Lord Kenyon, in
Westerdell v. Dale, (d) entertained a different opinion, and he
considered the mortgagee, whether in or out of possession, to be
the owner, and entitled to the freight, and bound for the ex-
penses of the ship. The weight of our American decisions has
been in favor of the position, that a mortgagee of a ship out of
possession is not liable for repairs or necessaries procured on the
order of the master, and not upon the particular credit of the
mortgagee, who was not in the receipt of the freight; though
the rule is otherwise when the mortgagee is in possession, and the
vessel employed in his service. (e)¹ The case of Fisher v.
*135 Willing (ƒ) has a strong bearing * in favor of the decisions
which go to charge the mortgagor; for it was held that a
mortgagee of a ship at sea did not, merely by delivery of the doc-
uments, acquire such a possession as to be liable to the master for
wages accruing after the date of the mortgage. The contract
was with the mortgagor, and there was no privity between the
master and the mortgagee, before possession taken, sufficient to
(a) Wendover v. Hogeboom, 7 Johns. 308; Leonard v. Huntington, 15 id. 298;
Thorn v. Hicks, 7 Cowen, 697.
(b) 1 H. Bl. 117, note.
(c) 1 H. Bl. 114.
(d) 7 T. R. 306. In Dean v. M'Ghie, 4 Bing. 45; s. c. 12 J. B. Moore, 185, it
was held, that on a mortgage of a ship at sea, and possession taken, the accruing
freight passed to the mortgagee, as incident to the ship.¹
(e) M'Intyre v. Scott, 8 Johns. 159; Champlin v. Butler, 18 id. 169; Ring v.
Franklin, 2 Hall (N. Y.), 1; Tucker v. Buffington, 15 Mass. 477; Colson v. Bonzey,
6 Greenl. 474; Winslow v. Tarbox, 18 Me. 132; Cutler v. Thurlo, 20 id. 213; Miln
v. Spinola, 4 Hill (N. Y.). 177.
(ƒ) 8 Serg. & R. 118. A mortgagor in possession of a vessel may pledge the
freight. Keith v. Murdoch, [2 Wash. 297.]
1 Post 138, n. 1.
[190]
LECT. XLV.]
* 136
OF PERSONAL PROPERTY.
•
raise an assumption. A similar decision was made by Ch. J.
Abbott in Martin v. Paxton, and cited in the Pennsylvania case.
The case of The Mohawk Insurance Company v. Eckford, decided
in the Court of Common Pleas in the city of New York, in 1828,
and the cases of Thorn v. Hicks and Lord v. Ferguson, (a) show
that the rule is considered to be settled in New York and New
Hampshire, that a mortgagee out of possession is not liable for
services rendered, or necessaries furnished to a vessel, on the
credit of the mortgagor, or other person having the equitable
title. The question seems to resolve itself into the inquiry,
whether the circumstances afford evidence of a contract, express
or implied, as regards mortgagees not in possession. If the claim-
ant dealt with the mortgagor solely as owner, he cannot look to
the mortgagee. To whom was the credit given, seems to be the
true ground on which the question ought to stand. (b)¹ In a case
before Lord Ellenborough, in 1816, (c) he ruled, that a mortgagee
not in possession, and not known to the plaintiff, was not liable
for stores supplied by the captain's order. The weight of au-
thority is decidedly in favor of the mortgagee, who has not taken
possession; and if he has left the possession and control of the
ship to the mortgagor, he will not be liable to the master for
wages or disbursements, or to any other person for repairs and
necessaries done or supplied by the master's order, where the
mortgagor has been treated as owner. If, however, there
has been no such dealing with * the mortgagor, in the char- *136
acter of owner, but the credit has been given to the person
who may be owner, it is a point still remaining open for discussion,
whether the liability will attach to the beneficial or to the legal
owner. The principle of the decision in Trewhella v. Row (a) was,
that a vendee of a ship, whatever equitable title might exist in
him, was not liable for supplies furnished before the legal title was
conveyed to him, and registered in the manner prescribed by the
Registry Acts, and when he was unknown to the tradesmen who
supplied the materials. (b)
(a) 7 Cowen, 697; Ring v. Franklin, 2 Hall, 1, s. p. ; 9 N. H. 380.
(b) Baker v. Buckle, 7 J. B. Moore, 349.
(c) Twentyman v. Hart, 1 Starkie, 366.
(a) 11 East, 435.
(b) The same principle governed the decision in Harrington v. Fry, 2 Bing. 179;
1 But see 138, n. 1.
[191]
* 137
[PART V.
OF PERSONAL PROPERTY.
There are analogous cases which throw light upon this subject.
Thus, in Young v. Brander, (c) the legal title remained for a
month after the sale in the vendor upon the face of the register,
because the vendee had omitted to comply with the forms pre-
scribed by the Registry Acts. But it was held, that he was not
liable during that interval for repairs ordered by the captain,
under the direction of the vendee, and who had no authority,
express or implied, from the legal owner. The vendee ordered
the repairs in his own right, and there was no privity of interest
between him and the legal owner, and the credit was actually
given to the vendee. So, again, the regular registered owner of
a ship was held not to be liable for supplies furnished by order
of the charterer, who had chartered the ship at a certain rent
for a number of voyages, the owner had divested himself, in
that case, of all control and possession of the vessel during the
existence of the charter party, and he had no right under
*137 * it to appoint the captain. (a)¹ The question in these
cases is, whether the owner, by reason of the charter party,
has devested himself of the ownership pro hac vice, and whether
there has been any direct contract between the parties, varying
the responsibility.
In Valejo v. Wheeler, (b) the court proceeded on the ground
that the charterer was owner pro hac vice, inasmuch as he ap-
pointed the master. The subject was much discussed in M'Intyre
v. Bowne, (c) and it was held, that where, by the terms of the
charter party, the ship-owner appoints the master and crew, and
and by the English statutes of 4 George IV. c. 41, and of 6 George IV. c. 110, on a
transfer of a ship, or any interest therein, by mortgage or assignment in trust by way of
security for a debt, the entry in the book of registry is so to state it, and the mortgagee
or trustee shall not, by reason thereof, be deemed owner, nor the mortgagor cease to
be owner, except so far as to render the security available. Under these statutes,
the interest of the mortgagor and mortgagee are more distinctly severed than they
were before, and a mortgagor does not cease to be owner. Irving v. Richardson,
2 B. & Ad. 193. No act of bankruptcy, committed by the mortgagor, after the
registry of the mortgage or assignment, to affect the security. This provision is con-
tinued in the consolidated registry statute of 3 and 4 William IV. c. 55, secs. 42, 43.
(c) 8 East, 10.
(a) Frazer v. Marsh, 13 East, 238. Registered ownership is prima facie evidence
of liability for the repairs of a ship, but it may be rebutted by showing that the
credit was given elsewhere. Cox v. Reid, Ryan & M. 199.
(b) Cowp. 143.
(c) 1 Johns. 229.
1 Post, 138, n. 1.
[192]
LECT. XLV.]
* 138
OF PERSONAL PROPERTY.
retains the management and control of the vessel, the charter was
to be considered as a covenant to carry goods. But where the
whole management is given to the freighter, it is more properly a
hiring of the vessel for the voyage, and in such case the hirer is to
be deemed owner for the voyage. In Hallet v. The Columbian
Insurance Company, (d) the owner of the vessel, by the charter
party, let the whole vessel to the master, who was to victual and
man her at his own expense, and have the whole management
and control of her, and he was held to be the owner for the voy-
age; and a similar decision was made in Taggard v. Loring. (e)
The case of Fletcher v. Braddick (ƒ) adopted the same principle
which had been laid down by Ch. J. Lee, in Parish v. Crawford, (g)
and it was declared that the ownership, in respect to all third
persons, remained with the original proprietor, when the vessel
was supplied and repaired by the owner, and navigated by a
master and sailors provided and paid for by him. In that
case, the ship was chartered by the * commissioners of the *138
navy, who placed a commander in the navy, on board, and
the master was to obey his orders; but with regard to third
persons, it was still, notwithstanding that very important fact,
considered to be the ship of the owners, and they were held an-
swerable for damage done by the ship. This highly vexed ques-
tion, and so important in its consequences to the claim of lien,
and the responsibilities of ownership, depends on the inquiry,
whether the lender or hirer, under a charter party, be the owner of
the ship for the voyage. It is a dry matter-of-fact question, who,
by the charter party, has the possession, command, and naviga-
tion of the ship. If the general owner retains the same, and
contracts to carry a cargo on freight for the voyage, the charter
party is a mere affreightment sounding in covenant, and the
freighter is not clothed with the character or legal responsibility
of ownership. The general owner, in such a case, is entitled to
the freight, and may sue the consignee on the bills of lading in
the name of the master, or he may enforce his claim by detain-
ing the goods until payment, the law giving him a lien for freight.
But where the freighter hires the possession, command, and nav-
igation of the ship for the voyage, he becomes the owner, and is
responsible for the conduct of the master and mariners; and the
(d) 8 Johns. 272.
(ƒ) 5 Bos. & P 182.
VOL. III.
13
(e) 16 Mass. 336.
(g) Str. 1251.
[ 193 ]
* 138
[PART V.
OF PERSONAL PROPERTY.
general owner has no lien for the freight, because he is not the
carrier for the voyage. This is the principle declared and acted
upon in the greatly litigated and very ably discussed case of
Christie v. Lewis; (a) and it is the principle declared by the
Supreme Court of the United States, in Marcardier v. The Chesa-
peake Insurance Company, (b) and Gracie v. Palmer, (c) and
followed generally by the courts of justice in this country. (d)
It may be considered as the sound and settled law on the sub-
ject. (e) 1
(a) 2 Brod. & B. 410.
(b) 8 Cranch, 39.
(c) 8 Wheat. 605.
(d) Pitkin v. Brainerd, 5 Conn. 451; Clarkson v. Edes, 4 Cowen, 470; Reynolds
v. Toppan, 15 Mass. 370; Emery v. Hersey, 4 Greenl. 407; Lander v. Clark, 1 Hall,
(N. Y.), 355; Lord Tenterden, in Colvin v. Newberry, 6 Bligh (N. s.), 189; The
Schooner Volunteer and Cargo, 1 Sumner, 568, 569. In the case of Certain Logs
of Mahogany, 2 Sumner, 596, 597, it was decided, that where the owner of a char-
tered vessel has a lien for freight, the consignee cannot, by a writ of replevin, with-
draw the cargo from the jurisdiction of the admiralty court; and that the owner
of the vessel is presumed to be the owner for the voyage, unless the charter party
contains clear evidence of an intention to make the charterer owner for the voyage;
and that the owner has a lien on the cargo for the amount due by the charter party,
unless, by the terms of the instrument, delivery of the cargo is to precede payment
of the freight, and the owner is devested of the possession of the goods, without the
right to claim inmediate payment; that a stipulation that the freight is to be paid in
five days after the return and discharge of the vessel, is not a contract to give credit,
so as to displace the lien; and that the stipulation to discharge the cargo is simply to
unlade, and not to deliver it.
(e) In Massachusetts, the charterer of a vessel is declared to be the owner, in
respect to the responsibility for embezzlements by the crew, in case he navigates
1 Liability and Rights of Owners and
Ship.-The text is confirmed by Reed
v. United States, 11 Wall. 591, 601,
Donahoe v. Kettell, 1 Cliff. 135; Eames
v. Cavaroc, Newb. 528; Adams v. Home-
yer, 45 Mo. 545; post, 164, n. 1.
Charterers are to be deemed owners of
the vessel within the meaning of the act
limiting the liability of ship owners, in
case they shall man, victual, and navigate
such vessel at their own expense, or by
their own procurement. Act of Congress,
March 3, 1851, ch. 43, § 5; 9 St. at L.
635; post, 217, n. 1. So when a master
hires a vessel on shares, and has control
of her, he becomes owner pro hac vice.
Bonzey v. Hodgkins, 55 Me. 98; Sproat
v. Donnell, 26 Me. 185; Webb v. Peirce,
1 Curtis, 104; Mayo v. Snow, 2 Curtis,
102; Baker v. Huckins, 5 Gray, 596;
Tucker v. Stimson, 12 Gray, 487. See
Thomas v. Osborn, 19 How. 22, 30; post,
164, n. 1; 172, n. 1.
Sandeman v. Scurr, L. R. 2 Q. B. 86,
was decided on the ground that the charter
party did not amount to a demise of the
ship (p. 96), and that although the char-
terers might be bound by the bill of lading
and liable for bad stowage (p. 91), the
plaintiffs having delivered their goods to
be carried in ignorance of the vessel being
chartered, and having dealt with the
master as clothed with the ordinary au-
thority of a master to receive goods and
give bills of lading on behalf of his owners,
were entitled to look to the owners as
responsible for the safe carriage of the
goods. The St. Cloud, Brown. & Lush. 4,
[194]
LECT. XLV.]
* 139
OF PERSONAL PROPERTY.
* 3. Of Custom-house Documents.
The United States *139
have imitated the policy of England and other commercial
the vessel at his own expense. Revised Statutes of 1836, part 1, c. 32, sec. 3. The
litigated question, who are to be considered as the responsible owners of the ship
for repairs and necessaries, is considered, and the numerous authorities cited and
reviewed in Abbott on Shipping, 5th Am. ed. Boston, 1846, pp. 38-70. In that same
work, pp. 377-379, the learned editor, Sergeant Shee, observes, on a review of the
English decisions respecting the ship-owner's lien for freight, that there is great con-
trariety, and almost inextricable conflict in the construction of the charter party; that
the maritime law is founded upon the principle, that the master is the servant of the
owner, and is intrusted with authority over the property in his charge; and by his con-
tract with sub-freighters the owner of a chartered ship is bound, and for misconduct
in him, or in the mariners engaged by him, the owners are responsible to the extent
and value of the ship and freight; and yet, that by subtle distinctions, the possession
of the master is made out not to be the possession of the owner, and learned judges
have determined against the ship-owner's lien for freight, and against his liability for
the acts of the master; that the maritime law of France and England is founded upon
the civil law; and Pothier (Charte Partie, p. 1, sec. 5) holds, that in the locatio rei et
operarum and the locatio operis, the obligations of the master and the merchant are the
same. In the French charter party, the proprietor of the ship engages to employ her
in the same service of the freighter, in the same way as the owner of a coach engages
to carry goods or passengers. (Code de Commerce, art. 273.) The service of the
master and mariners goes with the service of the ship, but they do not cease to be the
servants of the owner, to whom the lien for freight and the responsibilities of owner
attach. The learned sergeant seems to think most favorably of the latter doctrine;
and for the removal of doubts, he recommends an express agreement in the charter
party, as was done in the case of Small v. Moates, 9 Bing. 574, which avoided the
vexatious question, and vested the ownership fully in the original owner, and gave
him a right of lien, without considering the question whether the possession of the
ship remained in him, or had passed to the charterer.
15; Figlia Maggiore, L. R. 2 Ad. & Ec.
106 (in this case the bill of lading had
been assigned for value); The Patria, L.
R. 3 Ad. & Ec. 436, 459; post, 207, n. 1.
So when a charter party does amount
to a demise of a ship, it is said in this
country that contracts of affreightment
entered into with the master, in good
faith, and within the scope of his apparent
authority as master, bind the vessel to the
merchandise for the performance of such
contracts, whether the master be the agent
of the general or the special owner. The
Freeman v. Buckingham, 18 How. 182,
189. See The Canton, 1 Sprague, 437;
Highlander, ib. 510; post, 207, n. 1; 218.
So the master does not lose his power to
create a lien on the vessel for necessary
repairs and supplies in a foreign port, by
having taken her on a "lay," and so
having become owner pro hac vice.
Thomas v. Osborn, 19 How. 22, 30; post,
164, n. 1; The City of New York, 3
Blatchf. 187; The Monsoon, 1 Sprague,
37; Fox v. Holt, 36 Conn. 558, 570. On
the other hand, it has been held that
the owners would not be personally liable
although the demise was unknown to the
plaintiff. Swanton v. Reed, 35 Me. 176;
Stirling v. Loud, 33 Md. 436, 440. See
Fox v. Holt; Thomas v. Osborn, sup.
But see 1 Sprague, 195, note; Durst v.
Burton, 47 N. Y. 167, 173. As to the
effect of a transfer of the ship during the
voyage without the master's knowledge,
Mercantile & Exchange Bank v. Glad-
stone, L. R. 3 Ex. 233. In a case where
the vessel was let to the master on shares
[195]
* 139
[PART V.
OF PERSONAL PROPERTY.
nations (a) in conferring peculiar privileges upon American built
ships, and owned by our own citizens; and I shall now examine
(a) Mr. Prescott refers to a Spanish law, or pragmatic, as early as the year 1500,
prohibiting all persons, whether natives or foreigners, from shipping goods in foreign
bottoms from a port where a Spanish ship could be obtained. The object of the law,
like the English famous navigation act, was to exclude foreigners from the carrying
trade. Another pragmatic, of 1501, prohibited the sale of vessels to foreigners.
Prescott's Ferdinand and Isabella, iii. 453.
Mr. Justice Ware held the general owners
liable for wages to seamen who had not
been informed that they were to look to
the master as the only owner. Skolfield
v. Potter, Daveis, 392. See Webb v.
Peirce, 1 Curt. 104, 113; The Canton, 1
Sprague, 437; The Highlander, ib. 510;
Giles v. Vigoreux, 35 Me. 300; Harding
v. Souther, 12 Cush. 307; McCabe v. Doe,
2 E. D. Smith, 64.
Some of the above cases seem to be
relics of the medieval principle that the
vessel was primarily liable, and that the
owner was not liable at all outside of his
interest in her. She was treated as a
legal person. The China, 7 Wall. 53, 68,
70; Miller v. Woodfall, 8 El. & Bl. 493,
499, 500; post, 167, n. 1; 176, n. 1; 218,
n. 1; 161, n. (b). The tendency of the
English cases, perhaps under the influence
of common law notions, seems to have
been to reduce the power of the master to
bind the vessel, as well as his power to
bind the owners, to a simple question of
agency in most instances. The Druid, 1
Wm. Rob. 391, 399, commented on 18
How. 189; The Troubadour, L. R. 1 Ad.
& Ec. 302; The Halley, L. R. 2 P. C. 193,
201. But see 164, n. 1; 218, n. 1. And
there are exceptions even in England: ib.
and 232, n. 1. So it seems that a claim
for salvage binds the ship only and not
the owners until the property be restored.
248, n. 1.
Personal liability for supplies is now
reduced to an ordinary case of agency.
It would seem that the register is prima
facie evidence that the persons in charge
of the ship were employed by those
whose names appear on the register
as owners; Hacker v. Young, 6 N. H.
95; Hibbs v. Ross, L. R. 1 Q. B. 534;
see Brooks v. Minturn, 1 Cal. 481; Pear-
son v. Nell, 13 W. R. 967; Lincoln v.
Wright, 23 Penn. St. 76. Contra, Dyer v.
Snow, 47 Me. 254; United States v. Brune,
2 Wall. Jr. 264; but the right of persons
making repairs or furnishing supplies to
recover payment does not depend on the
registry or enrolment, but on the authority
of the person with whom they deal to
bind the owners by his contracts; How-
ard v. Odell, 1 Allen, 85, 87; and cases
cited below; and it is said to be now
settled that the liability to pay for supplies
to a ship depends on the contract to pay
for them, and not on the ownership of the
ship. The person ordering them must
have acted as the defendant's master of
the ship with his privity and consent, and
they must have been furnished not merely
upon the credit of the owner, by the bona
fide orders of the master given with the
privity of the owner, but as on a contract
with the owner on orders given by the
master as for him. Mitcheson v. Oliver, 5
El. & Bl. 419, 443, 445; Howard v. Odell,
1 Allen, 85, 88; Blanchard v. Fearing, 4
Allen, 118; Myers v. Willis, 17 C. B. 77,
92; Brodie v. Howard, ib. 109; Hackwood
v. Lyall, ib. 124; 18 C. B. 886; Macy v.
Wheeler, 30 N. Y. 231; Kenzel v. Kirk,
32 How. Pr. 269; Dorgan v. Pentz, 1
Chic. Leg. News, 225; Pearson v. Nell, 13
W. R. 967; Mackenzie v. Pooley, 11 Exch.
638; The Great Eastern, L. R. 2 Ad. &
Ec. 88. So as to the power of one part
owner to bind his coöwners, post, 155, n. 1.
On these principles the mortgagee of a
vessel, not having her in his possession or
[ 196]
LECT. XLV.]
* 139
OF PERSONAL PROPERTY.
the acts of Congress, so far as they go, to ascertain the title to
American ships, and the mode of transferring that title. The
object of the registry acts is to encourage our own trade, navi-
gation, and ship-building, by granting peculiar or exclusive priv-
ileges of trade to the flag of the United States, and by prohibiting
the communication of those immunities to the shipping and mari-
ners of other countries. These provisions are well calculated to
prevent the commission of fraud upon individuals, as well as to
advance the national policy. The registry of all vessels at the
custom-house, and the memorandums of the transfers, add great
security to title, and bring the existing state of our naviga-
tion and marine under the view of the general government. By
these regulations, the title can be effectually traced back to its
origin. (b)
"(
(b) A historical view of the laws of England with regard to shipping and naviga-
tion, is given, with admirable clearness, method, and accuracy, by Mr. Reeves, in his
History of the Law of Shipping and Navigation," published in 1792; and the policy
of that system he considers to have been vindicated and triumphantly sustained, in
the increase of the English shipping, the extension of their foreign navigation and
trade, and the unrivalled strength of their navy. The policy of the British statutes
was to create skilful and hardy seamen, and to confine the privileges of English trade,
as far as was consistent with the extent of it, to British built shipping. But the quan-
tity of British built shipping was not at first adequate to carry on the whole trade
of the country, and it became a secondary object to confer privileges on foreign built
control, is not liable for supplies and re-
pairs furnished at the request of the master
or mortgagor. Nor does the fact that he
appears on the register as absolute owner
of itself make him liable. Howard v.
Odell, 1 Allen, 85, 86; Myers v. Willis,
18 C. B. 886; Macy v. Wheeler, 30 N. Y.
231; Weber v. Sampson, 6 Duer, 358.
And even a mortgagee in possession would
not, it seems, be liable unless the master in
ordering the necessaries was acting as his
agent. The Troubadour, L. R. 1 Ad. &
Ec. 302. But see above as to the liability
of the vessel. Post, 164, n. 1; 172, n. 1;
174, n. 1; 185, n. 1.
delivery of the cargo transfers accru-
ing freight. Pelayo v. Fox, 9 (Barr)
Penn. St. 489; Lindsay v. Gibbs, 22 Beav.
522; 3 De G. & J. 690. It is also settled
that if a mortgagee takes possession be-
fore delivery of the cargo he will be en-
titled to the freight. The prevailing
opinion seems to be that this stands on
the ground that it passed by the mortgage,
and that taking possession is merely a
form of giving notice to the person from
whom it is due, who could otherwise make
a good payment to the mortgagor. Rus-
den v. Pope, L. R. 3 Ex. 269; Gardner v.
Cazenove, 1 Hurlst. & N. 423; Gumm v.
As to suits against masters and owners, Tyrie, 6 Best & S. 298, 301; Brown v.
see 161, n. 1.
The law is still perhaps a little per-
plexed as to the right of mortgagees of
a ship to freight. It is settled that
the transfer of a general ship before
Tanner, L. R. 3 Ch. 597; Cato v. Irving,
5 De G. & Sm. 210. But it has been
thought to depend on freight being earned
after possession taken. Bramwell, B.,
Rusden v. Pope, sup.
[197]
*139
[PART V.
OF PERSONAL PROPERTY.
The Acts of Congress of 31st December, 1792, and 18th Feb-
ruary, 1793, constitute the basis of the regulations in this
ships in British ownership. In proportion as British built shipping increased, the privi-
leges conferred on foreign built ships in British ownership were from time to time
restricted. The English navigation laws prior to the famous navigation act of the
republican parliament of 1651, and adopted by the statute of 12 Charles II. c. 18,
were crude and undigested. They commenced with the statute of 5 Richard II., and
in the earlier acts, the preference of English ships and mariners, in English imports
and exports, was given in simple and absolute terms, and they kept improving in
accuracy of description and justness of policy, down to the time of the registry acts.
The navigation act of Charles II. described what were English built and English
owned ships, and in what cases a foreign built ship, owned by an English subject,
should have the privileges of an English ship. The act did not require any foreign
ships to be registered; but a foreign built ship, unless registered, was to be treated as
an alien ship, though owned by a British subject. The statute of 26 George III.
c. 60, was framed by the elder Lord Liverpool, and it gave rise to the treatise of Mr.
Reeves, who dedicated his work to that distinguished nobleman. The navigation act
of Charles II. only required ships to be the property of British subjects; but in the
progress of the system, the qualification of being British built was added. The one
encouraged British seamen and merchants, but the other encouraged also British ship-
building. The statute of 26 George III. declared that the time had come when the
policy of employing British built shipping exclusively in the commerce of that country,
ought to be carried to the utmost extent; and it accordingly enacted, that no foreign
built ship, except prizes, nor any ship built upon a foreign bottom, although British
owned, should be any longer entitled to any of the privileges or advantages of a
British built ship, or of a ship owned by British subjects. This statute likewise
introduced into the European trade the necessity of a register, which had been intro-
duced into the plantation trade by the statute of 7 and 8 William III. c. 22. The
general principle established by the act of 16 George III. was, that all British ships,
with some few exceptions, should be registered, and a certificate of the registry
obtained in the port to which the ship belonged. All ships entitled and required to be
registered were made subject to forfeiture for attempting to proceed to sea without a
British register. All ships not entitled to the privileges of British built or British
owned ships, and all ships not registered, although owned by British subjects, were
to be deemed alien ships, and liable to the same penalties and forfeitures as alien
ships. British subjects might still employ foreign ships in neutral trade, subject
only to the alien duties. The statute further required that, upon every alteration of
the property, an indorsement was to be made upon the registry, and a memorandum
thereof entered at the custom-house; and that upon every transfer, in whole or in part,
the certificate of the registry was to be set out in the bill of sale. The statute of 34
George III. c. 68 was an enlargement of the statute of 26 George III., and it con-
tained several provisions for granting new certificates upon a transfer of property,
and it regulated those cases only in which a title to a certificate had been given, and
a certificate was required to be obtained; and it required all registered vessels to be
navigated by a British master, and a crew of whom three fourths were British. The
existing British regulations respecting the registration and enrolment of ships are
embodied in the act of 3 and 4 William IV. c. 54, and the acts of 8 and 9 Victoria,
c. 88, 89, for the encouragement of British shipping and navigation, and for the registering of
British vessels. Vessels under fifteen tons, navigating rivers, &c., or under thirty tons,
in the Newfoundland fishery, need not be registered. Foreign ships were those of
[198]
LECT. XLV.]
* 142
OF PERSONAL PROPERTY.
* country for the foreign and coasting trade, and for the *141
fisheries of the United States; and they correspond very
closely with the provisions of the British statutes in the reign of
George III.
* 142
No vessel is to be deemed a vessel of the United States, or
entitled to the privileges of one, unless registered and wholly
owned and commanded by a citizen of the United States. The
American owner, in whole or in part, ceases to retain
*his privileges as such owner, if he usually resides in a
foreign country, during the continuance of such residence,
unless he be a consul, or an agent for and a partner in some
American house, carrying on trade within the United States. (a)
The register is to be made by the collector of the port to which
such ship shall belong, or in which it shall be, and founded on
the oath of one of the owners, stating the time and place where
the build or prize of the country, or British built, and owned and navigated by sub
jects of the country; and natives of India are not deemed to be British seamen.
And by the act of 8 and 9 Victoria, c. 93, for regulating the trade of British posses-
sions abroad, the Queen may grant free ports in discretion, and give or withhold the
privileges of the reciprocity system.
The navigation laws of Great Britain now form a permanent and regular code; and
they were involved in a labyrinth of statutes, and not easily rendered simple and intel-
ligible to practical men, until the statutes of 4 George IV. c. 44, 6 George IV. c. 109,
110,7 George IV. 48, and 3 and 4 William IV. c. 54, 55, successively displacing each
other, reduced all the former provisions, with alterations and improvements, into one
consolidated system. The registry acts have peculiar simplicity and legal precision
for statute productions of that kind, and they are regarded by English statesmen and
lawyers as highly honorable to the talents, experience, and vigilance of Lord Liver-
pool, who established on solid foundations the naval power and commercial superiority
of his country. The code of laws constituting the navigation system of England
may be considered as embodied in the statutes of 3 and 4 William IV., and which
are said to owe much of the merit of their compilation to the industry and talents of
Mr. Hume, of the Board of Trade. As the code previously existed, it was well
digested, not only in the history of Mr. Reeves, to which I have alluded, but by Lord
Tenterden, in his accurate and authoritative "Treatise of the Law relative to Mer-
chant Ships and Seamen;" and still more extensively and very ably, in Holt's "Sys-
tem of the Shipping and Navigation Laws of Great Britain." That work contains
all the laws on the subject, brought down to the year 1820. His introductory essay
is a clear but brief synopsis of the history and policy of the navigation system. In
the sixth and seventh chapters of the first volume of Mr. Chitty's ample "Treatise
on the Laws of Commerce and Manufactures, and Contracts relating thereto," we
have also a condensed digest of the same code of navigation laws. An abstract is
given in the last Am. edition of Abbott on Shipping, by Sergeant Shee, pp. 75 to 123,
of the enactments of the last English Registry Acts; and the American editor, Mr.
Perkins, has added to the notes the corresponding sections in the American Registry
and Navigation Acts.
(a) Act of Congress, 31st December, 1792, secs. 1, 2.
[199]
* 143
[PART V.
OF PERSONAL PROPERTY.
she was built, or that she was captured in war by a citizen, as
prize, and lawfully condemned or forfeited, for a breach of the
laws of the states; and stating the owners and master, and that
they are citizens, and that no subject of a foreign power is, directly
or indirectly, by way of trust or otherwise, interested therein.
The master is, likewise, in certain cases, to make oath touching
his own citizenship. (b) Previous to the registry, a certificate of
survey is to be produced, and security given, that the certificate
of such registry shall be solely used for the ship, and shall not
be sold, lent, or otherwise disposed of. If the vessel, or any
interest therein, be sold to any foreigner, and the vessel be within
the United States, the certificate of the registry shall, within
seven days after the sale, be delivered up to the collector of the
district, in order to be cancelled; and if the sale be made when
the vessel is abroad, or at sea, the certificate is to be delivered
up within eight days after the master's arrival within the United
States; (c) and if the transfer of a registered vessel be made to a
foreigner in a foreign port, for the purpose of evading the revenue
law of a foreign country, it works a forfeiture of the vessel, unless
the transfer be made known within eight days after the return
of the vessel to a port in the United States, by a delivery of the
certificate of registry to the collector of the port. (d) So,
*143 if a registered ship be sold in whole or in part, * while
abroad, to a citizen of the United States, the vessel, on her
first arrival in the United States thereafter, shall be entitled to
all the privileges of a ship of the United States, provided a new
certificate of registry be obtained within three days after the
master makes his final report upon her first arrival. (a) If the
vessel be built within the United States, the ship-carpenter's
ccrtificate is requisite to obtain the register; and when the ship
is duly registered, the collector of the port shall grant an abstract
or certificate of such registry. (b) There are several minute reg-
ulations respecting the change of the certificate, and the granting
of a new register, which need not here be detailed; (c) but when
a vessel, duly registered, shall be sold or transferred, in whole or
(b) Ib. secs. 3, 4, 11.
(c) Ib. secs. 6,
7.
(d) Act of Congress, 31st December, 1792, secs. 7, 16; The Margaret, 9 Wheat.
421.
(a) Act of the United States, March 2, 1803, sec. 3.
(b) Law of the United States, 31st December, 1792, sec. 9.
(c) Ib. secs. 12, 13.
[200]
LECT. XLV.]
* 143
OF PERSONAL PROPERTY..
in part, to a citizen of the United States, or shall be altered in
form or burden, she must be registered anew, and her former
certificate of registry delivered up, otherwise she will cease to be
deemed a vessel of the United States, or entitled to any of the
privileges of one. In every case of sale or transfer there must
be some instrument of writing, in the nature of a bill of sale,
which shall recite at length the certificate of registry, and with-
out it the vessel is incapable of being registered anew. (d) Upon
every change of master the owner must report such change to
the collector, and have a memorandum of such change indorsed
upon the certificate of registry; and if any ship so registered be
sold, in whole or in part, by way of trust or otherwise, to a
foreigner, and the sale be not made known as above directed,
the whole, or at least the share owned by the citizen who sells,
becomes forfeited. (e) ¹
(d) Ib. sec. 14.
1
(e) Law of the United States, 31st December, 1792, secs. 15, 16.
1 Registry and Enrolment. - By act of
Congress of July 29, 1850, c. 27, § 1, 9 St. at
L. 440, “no bill of sale, mortgage, hypoth-
ecation, or conveyance of any vessel, or
part of any vessel, of the United States,
shall be valid against any person other
than the grantor or mortgagor, his heirs,
and devisees, and persons having actual
notice thereof; unless such bill of sale,
mortgage, hypothecation, or conveyance
be recorded in the office of the collector of
customs where such vessel is registered or
enrolled: Provided, that the lien by bot-
tomry on any vessel created during her
voyage, by a loan of money or materials,
necessary to repair or enable such vessel
to prosecute a voyage, shall not lose its
priority, or be in any way affected by the
provisions of this act." There are later
statutes which should be consulted. See,
also, The Mohawk, 3 Wall. 566. The
above act is constitutional. White's Bank
v. Smith, 7 Wall. 646. And under it the
record should be made in the home port
of the vessel, although that is not the port
of last registry. Ib. It does not apply to
a sail boat of sixteen tons burden which
is kept and used in connection with a
hotel, and which is neither registered, en-
rolled, nor licensed under the laws of the
United States. Veazie v. Somerby, 5
Allen, 280. By § 5 the part or propor-
tion belonging to each owner is to be
sworn to and inserted in the register.
It may as well be mentioned here as
anywhere, that by the act of Feb. 10,
1866, 14 St. at L. 3, no ship or vessel,
which has been recorded or registered as
an American vessel, pursuant to law, and
which shall have been licensed or other-
wise authorized to sail under a foreign
flag, and to have the protection of any
foreign government during the existence
of the rebellion, shall be deemed or regis-
tered as an American vessel, or shall have
the rights and privileges of American
vessels, except under the provisions of an
act of Congress authorizing such regis-
try.
The act of Congress of March 2, 1831,
c. 98, 4 St. at L. 487, regulating the for-
eign and coasting trade on the northern,
north-eastern, and north-western frontiers
of the United States, in order to enable a
class of vessels which are engaged in both
the foreign and the coasting trade at the
[201]
* 145
[PART V.
OF PERSONAL PROPERTY.
Vessels enrolled and licensed, or licensed only, if under
*144 *twenty tons, are entitled to the privileges of vessels em-
ployed in the coasting trade or fisheries. (a) Vessels, to
be enrolled, must possess the same qualifications, and the same
requisites, in all respects, must be complied with, as are made.
necessary for the registry of ships and vessels; and the same
duties are required in relation to such enrolments; and the ships
enrolled, with the master and owner, are subject to the same reg-
ulations as are in those respects provided for registered vessels. (b)
Any vessel may be enrolled and licensed, that may be registered,
upon the registry being given up; and any vessel that may be
enrolled may be registered, upon the enrolment and license being
given up. (c) In order to obtain a license for carrying on the
coasting trade, or fisheries, the owner, or ship's husband and mas-
ter, must give security to the United States that the vessel be not
employed in any trade whereby the revenue of the United States
may be defrauded; and the master must make oath that he is a
citizen, and that the license shall not be used for any other vessel
or any other employment; and if the vessel be less than twenty tons
burden, that she is wholly the property of a citizen of the United
States. The collector of the district thereupon grants a license for
carrying on the coasting trade, or fishery. (d) Vessels engaged
in such a trade or business, without being enrolled and licensed,
or licensed only, as the case may be, shall pay alien duties, if in
ballast, or laden with goods the growth or manufacture of the
United States, and shall be forfeited if laden with any articles of
foreign growth or manufacture, or distilled spirits. (e) If any
vessel enrolled or licensed proceed on a foreign voyage, without
first surrendering up her enrolment and license, and being
*145 duly registered, she shall, with her cargo imported into
the United States, be subjected to forfeiture. (a) ¹ The
other general provisions relative to the rights and duties apper-
(a) Act of Congress, February 18th, 1793, sec. 1.
(b) Ib. sec. 2.
(d) Ib. sec. 4.
(a) Ib. sec. 6.
*
same time, to do so without the necessity
of taking out both a register and an en-
rolment, makes the enrolment in those
cases equivalent to both register and en-
rolment. In giving the enrolment this
(c) Ib. sec. 3.
(e) [Ib.] sec. 6.
1
effect, it subjects the vessel to all the reg-
ulations and penalties relating to regis
tered vessels. The Mohawk, 3 Wall.
566, 573.
1 See 143, n. 1, ad finem.
[202]
LECT. XLV.]
* 146
OF PERSONAL PROPERTY.
taining to the coasting trade and the fisheries need not here be
enumerated, as my object is to consider the subject merely in
reference to the documentary title to American vessels.
·
It is further provided, by the act of March 2, 1797, that when-
ever any vessel is transferred by process of law, and the register,
certificate of enrolment, or license is retained by the former
owner, a new one may be obtained upon the usual terms, with-
out the return of the outstanding paper. Vessels captured and
condemned by a foreign power, or by sale to a foreigner, whereby
there becomes an actual divesture of the title of the American
citizen, are to be considered as foreign vessels, and not entitled
to a new register, even though they should afterwards become
American property, unless the former owner regain his title, by
purchase or otherwise, and then the law allows of the restoration
of her American character, by a sort of jus postliminii. (b) Every
registered or unregistered vessel, owned by a citizen of the United
States, and going to a foreign country, and an unregistered
vessel, sailing with a sea-letter, is entitled to a passport, to be
furnished by the collector of the district. (c) But no sea-letter,
certifying any vessel to be the property of a citizen of the United
States, can be issued, except to ships duly registered, or enrolled
and licensed, or to vessels wholly owned by citizens of the United
States, and furnished with, or entitled to, sea-letters or other
custom-house documents. (d)
The English registry acts of 26 Geo. III. and 34 Geo. III.
c. 68, required the certificate of the registry to be truly recited at
length in every bill of sale of a British ship to a British subject;
otherwise such bill of sale was declared to be utterly null and
void to all intents and purposes; and this was held to be neces-
sary, even though the ship was at sea at the time, and the
vendee took * the grand bill of sale and possession of the *146
ship immediately on her arrival in port. (a) The laws of
the United States do not go to that rigorous extent; and the
only consequence of a transfer, without a writing containing a
recital at length of the certificate of registry, is, that the vessel
cannot be registered anew, and she loses her privilege as an
(b) Act of Congress, June 27, 1797; Op. Att. Gen., i. [523.]
(c) Acts of Congress, June 1, 1796, and March 2, 1803.
(d) Act of Congress, March 26, 1810.
(a) Rolleston v. Hibbert, 3 T. R. 406.
[203]
* 147
[PART V.
OF PERSONAL PROPERTY.
American vessel, and becomes subject to the disabilities incident
to vessels not registered, enrolled, or licensed as the statute pre-
scribes. But where an American registered vessel was in part
sold, by parol, while at sea, to an American citizen, and again
resold, by parol, to her original owner, on her return into port
and before entry, that transaction was held not to deprive the
vessel of her American privileges, or subject her to foreign
duties, for in that case no new register was requisite. It would
have been, except in date, a duplicate of the old one, and per
fectly useless. (b)
If a ship be owned by American citizens, and be not docu-
mented according to the provisions of the registry acts, it is not
liable to any forfeitures or disabilities which are not specially
prescribed. The want of a register is not a ground of forfeiture,
but the cause only of loss of American privileges. (c) Every
vessel, wherever built, and owned by an American citizen, is
entitled to a custom-house document for protection, termed a
passport, under the act of June 1, 1796; for it applies to "every
ship or vessel of the United States, going to any foreign country.'
As our registry acts do not declare void the sale or transfer,
and every contract or agreement for transfer of property in any
ship, without an instrument in writing, reciting at large the cer-
tificate of registry; and as they have not prescribed any precise
""
form of indorsement on the certificate of registry, and
*147 rendered it indispensable in every* sale, as was the case
under the British statutes of 26 Geo. III. c. 60, and 34
Geo. III. c. 68, we are happily relieved from many embarrassing
questions which have arisen in the English courts relative to the
sale and mortgage of ships.
There have been great difficulty, and some alternation of
opinion, in the English courts, in the endeavor to reconcile the
strict and positive provisions of the statute with the principles
of equity, and the good faith and intention of the contracting
parties. (a) It has even been a question of much discussion,
(b) United States v. Willings, 4 Cranch, 48.
(c) Hatch v. Smith, 5 Mass. 42; Philips v. Ledley, 1 Wash. 226; Willing v. United
States, ib. 125. The register is the only document which need be on board in time
of peace, in compliance with a warranty of national character. Catlett v. Pacific Ins.
Co., 1 Paine, 594.
(a) The cases of Rolleston v. Hibbert, 3 T. R. 406; Camden v. Anderson, 5 id.
[ 204 ]
LECT. XLV.]
*148
OF PERSONAL PROPERTY.
whether the statutes of 26 and 34 Geo. III. had not destroyed
the common law right of conveying a ship by way of mortgage,
like other personal property, and whether the mortgagee had
not a complete title beyond the power of redemption, after the
transfer of the legal title according to the prescribed form
of the indorsement on the certificate of registry. *The *148
language, in many of the cases, (a) was in favor of the
conclusion, that there could be no equitable ownership of a ship
distinct from the legal title, and that upon a transfer under the
forms of the registry acts, the ship becomes the absolute prop-
erty of the intended mortgagee, and that the terms and the policy
of the registry acts were incompatible with the existence of
any equity of redemption. But these opinions or dicta have been
met by a series of adjudications, which assume the laws to be
otherwise, and that the registry acts related only to transactions
between vendor and vendee, and to cases of real ownership;
and that an equitable interest in a ship might exist by operation
of law, and by the contract of the parties, distinct from the legal
estate; and that, notwithstanding the positive and absolute terms
of the indorsement upon the certificate of register, a mortgage
of a ship is good and valid, according to the law as it existed
before the registry acts, provided the requisites of the statutes
709; Westerdell v. Dale, 7 id. 306; Moss v. Charnock, 2 East, 399; Heath v. Hubbard,
4 East, 110; Moss v. Mills, 6 id. 144; Hayton v. Jackson, 8 id. 511; Hibbert v. Rol-
leston, 3 Bro. C. C. 571; and the opinions of Wood, B., and Heath, J., in Hubbard v.
Johnstone, 3 Taunt. 177, and of Lord Eldon, in Ex parte Yallop, 15 Ves. 60, and Ex
parte Houghton, 17 Ves. 251, and of Sir William Grant, in 11 Ves. 642, may be
selected as samples of the strictness with which the statutes are construed, and of the
defeat of bona fide transfers of vessels, by failure to comply with the literal terms of
the statutes. The cases of Rolleston v. Smith, 4 T. R. 161; Capadose v. Codnor, 1
Bos. & P. 483; Ratchford v. Meadows, 3 Esp. 69; Bloxham v. Hubbard, 5 East,
407; Kerrison v. Cole, 8 East, 231; Robinson v. Macdonnell, 5 M. & S. 228; Curtis
v. Perry, 6 Ves. 739; Mestaer v. Gillespie, 11 Ves. 621, 637, may be selected, on the
other hand, as containing evidence of the influence of equity upon the severity of
those provisions. But the British registry act of 6 Geo. IV. c. 110, sec. 31, and
again the further amended and substituted statute of 3 and 4 William IV. c. 54,
mitigated the strictness of the, former provision. It required the bill of sale, or other
instrument of writing of the sale of a ship after registry, to contain a recital of the
certificate of registry, or the principal contents thereof, to render the transfer valid ;
but with a proviso that no bill of sale should be deemed void by reason of any error
in such recital, or by the recital of any former certificate of registry, instead of the
existing certificate.
(a) Lord Eldon scattered ambiguas voces to that effect in Curtis v. Perry, 6 Ves.
739; Campbell v. Stein, 6 Dow, 116; Ex parte Yallop, 15 Ves. 60; Ex parte Houghton,
17 Ves. 251; Dixon v. Ewart, 3 Meriv. 333.
[205]
*149
[PART V.
OF PERSONAL PROPERTY.
be complied with. (b) The opinion of Sir Thomas Plumer, in
Thompson v. Smith, (c) contained a very clear and masterly
vindication of the validity of the mortgage of a ship consistently
with the preservation of the forms of the registry acts. He
effectually put to flight the alarming proposition, that since the
registry acts, there could be no valid mortgage of a ship; and
he insisted that the defeasance annexed to the bill of sale ought
to be fully indorsed as part of the instrument on the certificate
of registry, if the ship be mortgaged in port; or if mortgaged
while at sea, a copy of the whole transmitted to the custom-
house; and that though the defeasance should not be
*149 noticed * in any of the forms adhered to at the office of
the customs, and the instrument should be registered as
an absolute bill of sale, the mortgagor's right of redemption
would not suffer by the omission. But as no such questions can
possibly arise under the registry acts of Congress, these discus-
sions in the English courts are noticed only as a curious branch
of the history of the English jurisprudence on this subject. (a)
The registry is not a document required by the law of nations
as expressive of a ship's national character. (b) The registry
(b) Mair v. Glennie, 4 M. & S. 240; Robinson v. Macdonnell, 5 id. 228; Hay v.
Fairbairn, 2 B. & Ald. 193; Monkhouse v. Hay, 2 Brod. & B. 114. A mortgage of a
ship is good as between the parties to the mortgage, without a registry, under the
statute of 3 and 4 William IV. c. 55; Lister v. Payn, 11 Sim. 348.
(c) 1 Mad. 395.
(a) In 1823, Mr. Trollope published, at London, a distinct treatise, for the very pur
pose of vindicating the validity of mortgages of ships. It was entitled, "A Treatise
on the Mortgage of Ships, as affected by the Registry Acts;" and it contains a view of
all the discussions on the question. The same doctrine is maintained in Mr. Patch's
late Practical Treatise on the Law of Mortgages, 34. Mr. Holt, in a note to his
Reports of Cases at Nisi Prius, i. 605, n., fell into the current error, that upon a con-
tract of mortgage, in respect to a British registered ship, there was no equity of
redemption, and that the ship became absolutely the property of the mortgagee, with-
out any relief to be afforded at law or in equity; but subsequently, in his elaborate
treatise on shipping, he adopts the doctrine in Thompson v. Smith, as being in con-
formity with the letter and spirit of the registry acts. Holt on Shipping, i. 306–312.
The statute of 6 George IV. c. 110, removed the difficulties which attended the doc-
trine of mortgages under the former statutes, by declaring that the transfer of ships,
by way of mortgage, or by assignment in trust for payment of debts duly registered,
should be valid, and pass the interest according to the purposes of the transfer. The
act of 3 and 4 William IV. c. 54, which was a substitute for the former, has a similar
provision. The treatise of Mr. Wilkinson, on "The Law of Shipping, as it relates to
the Building, Registry, Sale, Transfer, and Mortgages of British Ships," &c., is recom-
mended to the profession as a very useful work.
(b) Le Cheminant v. Pearson, 1 Taunt. 367.
[206]
LECT. XLV.]
* 150
OF PERSONAL PROPERTY.
acts are to be considered as forms of local or municipal institu-
tions, for purposes of public policy. They are imperative only
upon the voluntary transfer of parties, and do not apply to trans-
fers by act or operation of law. (c) They are said to be peculiar
to England and to the United States, whose maritime and navi-
gation system is formed upon the model of that of Great
Britain. But by various French ordinances, *between *150
1681 and the era of the new code, it was requisite that
all vessels, in order to be entitled to the privileges of French
vessels, should be built in France, under some necessary excep-
tions, and should be owned exclusively by Frenchmen, and
foreigners were prohibited from navigating under the French
flag; and a Frenchman forfeited his privileges as such owner, by
marrying a foreign wife, or residing abroad, unless in connection
with a French house. (a) The register is not of itself evidence
of property, unless it be confirmed by some auxiliary circum-
stance to show that it was made by the authority or assent of
the person named in it, and who is sought to be charged as
owner. Without proof to connect the party with the register,
as being his direct or adopted act, the register has been held not
to be even prima facie evidence to charge a person as owner;
and even then it is not conclusive evidence of ownership. (b)
The cases of The Mohawk Insurance Company v. Eckford, decided
in the New York Court of Common Pleas in 1828, and of Ring v.
Franklin, in the Superior Court of that city in 1829, (c) went
upon the same ground, that the register, standing in the name of
a person, did not determine the ownership of the vessel, though
it might, perhaps, be presumptive evidence, in the first instance.
An equitable title in one person might legally exist, consistently
with the documentary title at the custom-house in another. (d) ¹
(c) 6 Ves. 739; 15 id. 68; Bloxham v. Hubbard, 5 East, 407.
(a) Pardessus, Cours de Droit Com. iii. 11, 12; Boulay-Paty, i. 257-260.
1
(b) Tinkler v. Walpole, 14 East, 226; M'Iver v. Humble, 16 id. 169; Fraser v.
Hopkins, 2 Taunt. 5; Sharp v. United Insurance Company, 14 Johns. 201; Colson v.
Bonzey, 6 Greenl. 474; Bas v. Steele, 3 Wash. 381; 1 Greenleaf on Evidence, sec.
494. The interest that appears upon the registry is held to estop the owner from
setting up a claim to any other interest; but if he deals as owner of a larger share, he
is liable to others in that proportion. This is the English rule upon the policy of the
registry acts. Ex parte Yallop, 15 Ves. 60.
(c) 2 Hall, 1.
(d) By the French law, a verbal sale of a ship may do as between the parties, but
1 Hall v. Hudson, 2 Sprague, 65 As to the effect of the register as evidence of
ownership, see 138, n. 1.
[207]
* 152
[PART V.
OF PERSONAL PROPERTY.
*151
4. Of Part Owners. The several part owners of a
ship are not partners, but tenants in common. (a) Each
has his distinct, though undivided interest; and when one of
them is appointed to manage the concerns of the ship for the
common benefit, he is termed the ship's husband. Valin strongly
recommends the utility of these associations of part owners, in
the business of navigation and maritime enterprises, in order to
unite the wisdom of joint counsels, as well as to divide the risks
and losses incident to a very extended maritime commerce, which
is exposed to so many hazards and revolutions: tua omnia uni
nunquam navi credito. (b) The marine law of England, respect-
ing part owners of vessels, is distinguished for the wisdom and
equity of its provisions, and it has an undoubted preeminence
over the common law doctrine concerning a tenancy in common
in chattels. If there be no certain agreement among themselves
respecting the employment of the ship, the Court of Admiralty,
under its long established and salutary jurisdiction, authorizes a
majority in value of the part owners to employ the ship upon any
probable adventure, and at the same time takes care to secure
the interest of the dissenting minority. The admiralty
*152 practice is dictated by the plain reason, * that "ships were
made to plough the ocean, and not to rot by the wall.” (a)
Ownership in a ship is, ordinarily, not like the case of joint con-
not as respects the claims of third persons. It has been, at all times, the policy of
their law to require the written evidence of a sale. Formerly, every sale was required
to be attested before a notary, but now a private instrument is sufficient. But the
law of France places very material checks upon the transfer of ships; for, in order to
bar the rights and claims of third persons, it is requisite that the vessel make one
voyage at sea at the risk of the purchaser, and without opposition from the creditors
of the vendor; otherwise their claims are preferred to the title of the purchaser. If
the vessel be sold while on a voyage, that voyage is not computed, and it requires a
new voyage subsequent to such sale to bar the rights of privileged creditors. This
privilege, under the French ordinance of 1681, applied to creditors of every description
existing at the time of the sale; but under the new code of commerce it would rather
seem to be confined to the specified class of privileged creditors. Ord. b. 2, tit. 10,
Des Navires, art. 2, 3, and Valin's Comm. id. i. 602; Code de Com. art. 193, 194, 196;
Boulay-Paty, Cours de Droit Com. i. 168, 170.
(a) Ex parte Young, 2 Ves. & B. 242; 2 Rose, 78, note; Ex parte Harrison, [ib.] 76;
Ex parte Gibson, 1 Montagu on Partn. 102, note; Nicoll v. Mumford, 4 Jolins. Ch.
526. See, also, supra, 39, 40.
(b) Valin's Comm. i. 584.
(a) In the same way the fir tree, though originally rooted in the mountain soil,
was, according to the beautiful prosopopoeia of the poet, destined to witness the perils
of the deep, casus abies visura marinos.
[208]
LECT XLV.]
* 152
OF PERSONAL PROPERTY.
cern or partnership; nor does the English law, like some of the
ordinances of other countries, give power to the majority in
value to control, in their discretion, the whole concern. The
Court of Admiralty takes a stipulation from the majority, in a
sum equal to the value of the shares of the minority, either to
bring back and restore the ship, or pay the minority the value
of their shares. In that case, the ship sails wholly at the charge
and risk and for the benefit of the majority, and they appoint
the officers and crew, and it must be done in good faith. (b) 1
This security the minority obtain upon a warrant issued upon
their application to arrest the ship. This is the only safe pro-
ceeding to the minority; for if the ship be sent to sea by the
majority without this security, and she be lost without any tor-
tious act in the majority, the minority have no remedy in law or
equity. If the minority have possession of the ship, and refuse
to employ her, the majority, on a similar warrant, may obtain
possession, and send the ship to sea, on giving the like security.
The jurisdiction of the admiralty extends to the taking a vessel
from a wrong-doer, and delivering her over to the rightful owner;
and this is a most useful part of the jurisdiction of the court,
and one recognized in the courts of law. (c) The Court of
Chancery exercises this sort of equitable jurisdiction in cases
(b) Card v. Hope, 2 B. & C. 661, 675.
(c) Graves v. Sawcer, T. Raym. 15; Strelly v. Winson, 1 Vern. 297; Anon., 2 Ch.
Cas. 36; Ouston v. Hebden, 1 Wils. 101; Abbott on Shipping, pt. 1, c. 3; The Sis-
ters, 4 C. Rob. 275; The New Draper, ib. 287; The Experiment, 2 Dods. 38; The
John, of London, 1 Hagg. Adm. 342; The Pitt, ib. 240; The Margaret, 2 Hagg. Adm.
276, 277; In the Matter of Blanchard, 2 B. & C. 244. In Willings v. Blight, Peters
Adm. 288, the general jurisdiction of the admiralty, as stated, seemed to have been
assumed. See, also, The Apollo, 1 Hagg. Adm. 306; Steamboat Orleans v. Phœbus,
11 Peters, 175.
1 Southworth v. Smith, 27 Conn. 355.
The practice of some of our district
courts is to take security in double the
estimated value of the shares of the mi-
nority. The Marengo, 1 Sprague, 506;
The Lodemia, Crabbe, 271. When secu-
rity is thus given to the dissenting part
owner, he is not entitled to compensation
for the use of his part of the vessel during
the voyage, or to a share of the profits.
VOL. III.
14
The Marengo, 1 Am. Law Rev. 88; Davis
v. Johnston, 4 Simons, 539; Anon., 2 Cha.
Cas. 36; 2 Wynne's Life of Sir L. Jen-
kins, 792; Willings v. Blight, inf. n. (c).
See Sturdivant v. Smith, 29 Me. 387.
The power of the majority extends to
the removal of a master having an inter-
est in the vessel. Ward v. Ruckman, 36
N. Y. 26; 34 Barb. 419; post, 162.
[209]
* 153
[PART V.
OF PERSONAL PROPERTY.
where the admiralty cannot, as where the shares are not ascer-
tained. (d)
*
If the part owners be equally divided in opinion in
*153 respect to the employment of the ship, either party may
obtain the like security from the other seeking to employ
her. (a) It is said that the Court of Admiralty has no jurisdic-
tion to compel an obstinate part owner to sell his share; (b) and
yet it was considered, in the District Court of Pennsylvania, as
still an unsettled point, whether the court might not compel a
sale of the shares of the minority who unreasonably refused to
act. (c) If a part owner sells, he can only sell his undivided
right. The interest of part owners is so far distinct, that one of
them cannot dispose of the share of another; and this may be
considered as a settled principle. (d) The language in the Court
(d) Haly v. Goodson, 2 Meriv. 77.
(a) Abbott on Shipping, ub. sup. sec. 6.
(b) Ouston v. Hebden, 1 Wils. 101. In the case of the Apollo, 1 Hagg. Adm. 306,
Lord Stowell vindicated the legality of the initiatory measure of arresting a ship, on
the application of a part owner who dissents from her intended employment, and
compelling security for the safe return of the vessel, or for the estimated value of his
share. And while he was extremely cautious of enlarging his jurisdiction on this
subject, he decreed immediate payment of the entire amount of the stipulated sum,
upon the loss of the ship. The jurisdiction of the admiralty, in case of part owners
having unequal interests and shares, never has been applied to direct a sale upon any
dispute between them as to the navigation of the ship engaged in maritime voyages.
The majority of the owners have a right to employ the ship, on giving the requisite
stipulation in favor of the minority, if they require it. So the minority may employ
the ship in like manner, if the majority decline to employ her. Steamboat Orleans
v. Phœbus, 11 Peters, 175.
(c) Willings v. Blight, ub. sup. A sale was decreed upon the petition of one part
owner of a vessel against another, in the District Court of South Carolina. Skrine v.
The Sloop Hope, Bee's Adm. 2. The remedy for the dissenting owners, in Scot.
land, is to compel a sale, or that the other owners shall give or take at a price put.
Mr. Bell intimates that the English method is less harsh and perilous. Bell's Comm.
on the Laws of Scotland, i. 503. Mr. Justice Story (Comm. on Partn. [§§ 435–439])
strenuously contends for the lawful exercise, by the courts of admiralty, of the power
to decree a sale of the vessel, on a disagreement of the part owners of a ship upon a
particular voyage, whether the ship be owned in equal or unequal shares. This is
the rule of the maritime law abroad, and is sustained by the decision of Judge
Washington, in the case cited infra, 154, n. a, and by general convenience and
policy.
(d) It was so declared by Abbott on Shipping, part 1, c. 3; and Lord Ch. J. Dal-
las observed, in 8 Taunt. 774, that one part owner of a ship could not bind the rest,
as in partnership cases. The general understanding at the common law is, says Mr.
Justice Story, (Partn. [§§ 421, 427,]) that if there be no express or implied agree-
ment inter se, one part owner of a ship cannot bind the others as to repairs and expen
ditures. But the continental jurists and ordinances generally follow what is deemed
[210]
LECT. XLV.]
* 154
OF PERSONAL PROPERTY.
of Errors of New York, in the case which has been already men-
tioned, does not lead to an opposite conclusion. (e) That
* case only admitted that a ship might be held, not only *154
by part owners, as tenants in common, but in partnership,
by partners, as any other chattel. And though a part owner can
sell only his share, yet one partner can dispose of the entire sub-
ject; and the case of vessels does not form an exception, when
they are owned by a partnership, in the commercial sense, and so
it has frequently been held. (a)
The cases recognize the clear and settled distinction between
part owners and partners. Part ownership is but a tenancy in
common, and a person who has only a part interest in a ship,
is generally a part owner, and not a joint tenant or partner. As
part owner he has only a disposing power over his own interest
the more equitable doctrine, that all the part owners of a ship are bound to contribute
ratably to each other for the expenses of necessary reparations incurred by one or
more of them. The decisions of the Rota of Genoa, the Consolato del Mare, Straccha,
Roccus, Pothier, Emerigon, Valin, Code de Com., Pardessus, &c., are referred to by
Mr. Justice Story, (on Partn. [§§ 424-426, 429,]) in support of the foreign law.
(e) See ante, 40. The ordinance of Rotterdam, of 1721, gave the owners of above
half the ship the power to sell the same for the general account, as well as to freight
her and outfit her at the common expense, and against the consent of the minority.
(Art. 171, 172; 2 Magens on Insurance, 108.) On the other hand, the French ordi-
nance of 1681 prohibited one part owner of a ship from forcing his companions to a
sale, except in case of equality of opinions upon the undertaking of a voyage, and
limited the powers of the majority to matters strictly connected with the ordinary
employment of the vessel. Liv. 2, tit. 8, Des Propriétaires, art. 6; Valin, ib.; Par-
dessus, Droit Com. iii. 47. Valin vindicates this interdiction as conducive to the
benefit of the trade, though he admits it has its inconveniences, and that such is the
destiny of all human laws.
(a) Wright v. Hunter, 1 East, 20; Lamb v. Durant, 12 Mass. 54. In the case of
Davis v. The Brig Seneca, decided in the Circuit Court of the United States
for the District of Pennsylvania, in May, 1829, on appeal from the District Court, the
part owners were equally divided in opinion as to the employment of the vessel. One
party, having equal interest, wished to employ her on his own terms, and by his own
master, and the other party claimed the same right; and neither would recede. The
District Court decided that it had no power to award a sale of the vessel. Gilpin, 10.
The Circuit Court reversed that decision, and decreed a sale. Judge Washington
admitted that the English Admiralty had no such jurisdiction; but he went upon
broader ground, and held that the court had jurisdiction of all cases of a maritime
nature, and was governed by the general maritime law of nations, and was not con-
fined to that of England. He considered the 5th and 6th articles of the marine
ordinance of Louis XIV. (2, tit. 8, Des Propriétaires), and Valin's Commentary
thereon (i. 585), to be evidence of the maritime law of nations, that the court could
award a sale of the ship when the part owners were equally divided, as in that case.
The articles in the ordinance were agreeable to the Roman law. See the report of
the case in the American Jurist for January, 1838, 486.
[ 211]
* 155
[PART V.
OF PERSONAL PROPERTY.
in the ship, and he can convey no greater title. But there may
be a partnership, as well as a cotenancy, in a vessel; and,
*155 in that case, one part owner, in the character of * partner,
may sell the whole vessel; and he has such an implied
authority over the whole partnership effects, as we have already
seen. The vendee, in a case free from fraud, will have an inde-
feasible title to the whole ship. When a person is to be con-
sidered as a part owner or as a partner in a ship, depends upon
circumstances. The former is the general relation between ship
owners, and the latter the exception, and requires to be specially
shown. (a) But as the law presumes that the common possessors
of a valuable chattel will desire whatever is necessary to the pres-
ervation and profitable employment of the common property,
(a) If part owners join in a particular adventure on which the ship is sent, they
become quasi partners in the adventure. Holderness v. Shackels, 8 B. & C. 612;
Mumford v. Nicoll, 20 Johns. 611. Supra, 40. Part owners in a cargo and common
adventure have, like partners, a specific lien for their disbursements and advances, as
well as for their share of the profits. Abbott on Shipping, part 1, c. 3; Holderness v.
Shackels, 8 B. & C. 612, 618; Story on Partn. [§§ 441-444.]
1 Part Owners. The text is confirmed
by Macy v. De Wolf, 3 Woodb. & M. 193;
Merritt v. Walsh, 32 N. Y. 685; Hopkins
v. Forsyth, 14 Penn. St. 34; Patterson v.
Chalmers, 7 B. Monroe, 595; Wetherell
v. Spencer, 3 Mich. 123.
The principles stated ante, 138, n. 1,
apply to the case of part owners. A part
owner has not a general authority to bind
his coöwners; but the liability of a co-
owner may result either from express
authority or by implication; for instance,
he may so conduct himself as to have held
himself out to the party contracted with
as one upon whose credit the work was to
be done. Brodie v. Howard, 17 C. B.
109, 118. See Hardy v. Sproule, 31 Me.
71; 29 Me. 258; Sawyer v. Freeman, 35
Me. 542; Patterson v. Chalmers, sup.
The managing owner may bind his co-
owner by a bailbond in order to obtain
the release of the vessel arrested in the
admiralty court, in a suit for collision.
Barker v. Highley, 15 C. B. N. s. 27. See
Merritt v. Walsh, 32 N. Y. 685. And he
may appoint himself agent to collect and
distribute the freight. Smith v. Lay, 3
Kay & J. 105. See further as to com-
missions, price of supplies furnished by
him, &c., Rennell v. Kimball, 5 Allen,
356; Miller v. Mackay, 31 Beav. 77;
Ritchie v. Couper, 28 Beav. 344; post, 157.
Although part owners are tenants in
common of the ship, they are jointly in-
terested in her use and employment, and
the law as to her earnings, whether as
freight, cargo, or otherwise, follows the
law of partnership. As between the part
owners, whatever expenses are properly
incurred by one of them for the purposes
of a joint adventure must come out of
the earnings of the ship in that adventure
before the earnings are divided, although
the expenses have resulted in the perma-
nent improvement of the ship. Green v.
Briggs, 6 Hare, 395; Alexander v. Simms,
5 De G., M. & G. 57; Lindsay v. Gibbs,
22 Beav. 522, 532; 3 De G. & J. 690;
Guion v. Trask, 1 De G., F. & J. 373;
The Larch, 2 Curtis, 427, 433.
buck v. Shaw, 10 Gray, 492;
Walsh, 32 N. Y. 685.
As to power of majority, see 152, n. 1.
As to registry, see 143, n. 1.
See Star-
Merritt v.
[ 212 ]
LECT. XLV.]
* 156
OF PERSONAL PROPERTY.
part owners, on the spot, have an implied authority from the
absent part owners, to order for the common concern whatever
is necessary for the preservation and proper employment of the
ship. They are analogous to partners, and liable under that
implied authority for necessary repairs and stores ordered by one
of themselves; and this is the principle and limit of the liability
of part owners. (b)
Whether part owners who render their companions liable for
supplies furnished, or repairs made upon a ship, are to have their
accounts taken, and the assets distributed, as if the ship was
partnership property, or as if they had each a distinct, separate
interest in the vessel as tenants in common, depends, as we have
already seen, upon the fact, whether the ship was held by them,
in the particular case, as part owners or as partners. The laws
of Holland and of France consider it to be prejudicial to trade,
to carry the responsibility of part owners to the extent of the
English law; and the rule in those countries is, that each part
owner shall be answerable in relation to the ship no further
than to the extent of his share. (c) The English and
* Scotch law, on the other hand, as well as our own,
render part owners, in all cases, responsible in solido as
partners, for repairs and necessary expenses relating to the ship
and incurred on the authority of the master or ship's husband. (a)
* 156
(b) Holt on Shipping, Int. 23, and i. 367-369; Wright v. Hunter, 1 East, 20;
Scottin v. Stanley, 1 Dallas, 129; but see, supra, 153, n. d, where the general rule at
common law is otherwise, without there be ground to infer an agreement or consent.
The place where the repairs are made becomes a material circumstance; for if the
repairs are made at the port where the owners reside, they are usually considered to
be made upon the credit of the owners, exclusively of the master. Farrel v. M'Clea,
1 Dallas, 393; James v. Bixby, 11 Mass. 34.
(c) Van Leeuwen's Comm. on the Roman Dutch Law, b. 4, c. 2, sec. 9; Vinnius,
not. in Comm. Peckii, tit. De Exerc. 155. The latter says, it is neither agreeable to
natural equity nor public utility, that each part owner should be bound in solido, or
beyond his share. By the French law, part owners, equally with the English and
Scotch law, are liable in like manner as partners, for their proportion of all the neces-
sary debts and reasonable expenses incurred for the common benefit. Pothier, de
Société, n. 185, 187; Abbott on Shipping, part 1, c. 3. In Louisiana, it is held, that
joint owners of a boat are not, merely from that circumstance, responsible in solido;
though, if they be associated for the purpose of carrying goods for hire, they become
responsible jointly and severally. David v. Eloi, 4 La. 106. The law of Louisiana
follows the French law on this point. Civil Code of Louisiana, art. 2796.
(a) Bladney v. Ritchie, 1 Starkie, 338; Westerdell v. Dale, 7 T. R. 306; Bell's
Comm. i. 520, 524; Chapman v. Durant, 10 Mass. 47; Schermerhorn v. Loines, 7
[213]
* 157
[PART V.
OF PERSONAL PROPERTY.
But where a ship has been duly abandoned to separate insurers,
they are not responsible for each other as partners, but each one
is answerable for the previous expenses of the ship, ratably to the
extent of his interest as an insurer, and no further. (b) By the
French law, the majority in interest of the owners control the rest;
and in that way one part owner may govern the management
of the ship, in opposition to the wishes of fifty other part owners,
whose interests united are not equal to his, and make the other
part owners to contribute ratably for repairs and expenses. (c)
This control relates to the equipment and employment of the
ship, and the minority must contribute; but they cannot be com-
pelled to contribute against their will for the cargo laden on board,
though they will be entitled to their portion of the freight. (d)
If the part owners be equally divided on the subject, the opinion
in favor of employing the ship prevails, as being most favorable
to the interest of navigation. (e) Many of the foreign jurists
contend, that even the opinion of the minority ought to prevail,
if it be in favor of employing the ship on some foreign voyage.
Emerigon, Ricard, Straccha, Kuricke, and Cleirac are of that
opinion; but Valin has given a very elaborate consideration to
the subject, and he opposes it on grounds that are solid, and he
is sustained by the provisions of the old ordinance and of the
new code. (ƒ) Boulay-Paty (g) follows the opinion of Valin and
of the codes, and says, that the contrary doctrine would enable
the minority to control the majority, contrary to the law of every
association, and the plainest principles of justice. The
* 157 majority *not only thus control the destination and equip-
ment of the ship, but even a sale of her by them will
bind the right of privileged creditors after the performance of
one voyage by the purchaser, but not the other part owners. (a)
Johns. 311; Muldon v. Whitlock, 1 Cowen, 290; Thompson v. Finden, 4 Carr. & P.
158; Story on Partn. [§§ 420, 440.]
(b) The United Insurance Company v. Scott, 1 Johns. 106.
(c) 1 Valin's Comm. 575-584; Code de Com. art. 220.
(d) 1 Valin's Comm. 576-580.
(e) Abbott on Shipping, part 1, c. 3; Molloy, de Jure Marit. b. 2, c. 1, sec. 2,
308; Story on Partn. [§ 435. But see 7 Phila. 336.]
(ƒ) Ord. de la Marine, 2, tit. 8, art. 5, tit. Des Propriétaires, and Valin's Comm.
ib. i. 573-584; Code de Commerce, art. 220.
(g) Cours de Droit Commercial Maritime, i. 339-347; M. Pardessus, Cours de
Droit Com. iii. 48, speaks with less decision on the question.
a) Boulay-Paty, ub. sup. 351. [Ante, 152, n. 1.] Pardessus, ii. 27, is, however, of
[214]
LECT. XLV.]
* 157
OF PERSONAL PROPERTY.
The ship's husband may either be one of the part owners or a
stranger, and he is sometimes merely an agent for conducting the
necessary measures on the return of the ship to port; but he may
have a more general agency for conducting the affairs of the ves-
sel in place of the owners, and his contracts, in the proper line
of a ship's husband's duty, will bind the joint owners.
His duty
is, generally, to see to the proper outfit of the vessel, as to equip-
ment, provisions, and crew, and the regular documentary papers;
and though he has the powers incidental and necessary to the
trust, it is held that he has no authority to insure or borrow
money for the owners, or bind them to the expenses of law-
suits. (b) 1
The rights of tenancy in common among part owners apply to
the cargo as well as to the ship, and they have not a community
of interest as partners, so as to enable one to dispose of the whole
interest, and bind the rights of his cotenants. (c)
opinion, that they are equally concluded with the creditors by the sale, after one
voyage. If the ship be seized for the debt of one of the part owners, and the claim
of the others be put in before judgment, the right only of the part owner can be sold;
but if not until after judgment, the entire right to the ship is sold, and the other part
owners reclaim their share of the proceeds. Boulay-Paty, i. 227, 228.
(b) French v. Backhouse, 5 Burr. 2727; Sims v. Brittain, 4 B. & Ad. 375; Bell v.
Humphries, 2 Stark. 345; Campbell v. Stein, 6 Dow, 134; Bell's Comm. i. 504;
Bell's Principles of the Law of Scotland, sec. 449; Collyer on Partnership, [b. 5,
c. 3, § 4;] Story on Agency, [§ 35.]
(c) Jackson v. Robinson, 3 Mason, 138. The concluding part of Collyer on Part-
nership, and of Story on Partnership, have each a valuable chapter on the law of
part owners of ships, in which the established law and doctrine of the cases on the
subject are clearly and skilfully condensed.
1 McCready v. Woodhull, 34 Barb. 80; ante, 155, n. 1.
[215]
* 160
[PART V.
OF PERSONAL PROPERTY.
LECTURE XLVI.
OF THE PERSONS EMPLOYED IN THE NAVIGATION OF MERCHANT SHIPS.
1. Of the Authority and Duty of the Master. The captain of a ship
is an officer to whom great power, momentous interests, and
enlarged discretion are necessarily confided; and the continental
ordinances and jurists have, in a very special manner, required
that he should possess attainments suitable to the dignity and
the vastness of his trust. He must be a person of experience and
practical skill, as well as deeply instructed in the theory of the
art of navigation. He is clothed with the power and discretion
requisite to meet the unforeseen and distressing vicissitudes of the
voyage; and he ought to possess moral and intellectual, as well
as business qualifications, of the first order. His authority at sea
is necessarily summary, and often absolute; and if he chooses to
perform his duties or to exert his power in a harsh, intemperate,
or oppressive manner, he can seldom be resisted by physical or
moral force. He should have the talent to command in the midst
of danger, and courage and presence of mind to meet and sur-
mount extraordinary perils. He should be able to dissipate fear,
to calm disturbed minds, and inspire confidence in the breasts of
all who are under his charge. In tempests as well as in battle,
the commander of a ship "must give desperate commands; he
must require instantaneous obedience." He must watch for the
preservation of the health and comfort of the crew, as well as for
the safety of the ship and cargo. It is necessary that he should
maintain perfect order, and preserve the most exact disci-
*160 pline, under the guidance of justice, moderation, and
good sense. Charged frequently with the sale of the cargo,
and the reinvestment of the proceeds, he should be fitted to
superadd the character of merchant to that of commander; and
he ought to have a general knowledge of the marine law, and of
the rights of belligerents, and the duties of neutrals, so as not to
[216]
LECT. XLVI.]
* 160
OF PERSONAL PROPERTY.
expose to unnecessary hazard the persons and property under his
protection. (a)
(a) The master of a vessel is liable for indecent and inhuman conduct towards a
passenger; and he is responsible, in damages, for injuries resulting from the want of
reasonable care, prudence, and fidelity. Abbott on Shipping, 5th Amer. ed. Boston,
1846, 152, note, 218, and note; and see infra, 162, n. (e). As to his duty as master
of a neutral ship in time of war, see the cases collected in Abbott on Shipping, supra,
221, 222, notes. The owner of a vessel carrying passengers for hire is liable for
breaches of duty of the officer to the passengers, equally as he is in the case of
merchandise committed to their care. Keene v. Lizardi, 5 La. 431. Cleirac, in his
Jugemens d'Oleron, c. 1, says, that the title of master of a ship implies honor,
experience, and morals: reverendum honorem sumit quisquis magistri nomen acceperit.
The French ordinances of 1584, 1681, and 1725, and the ordinances of the Hanse
Towns, of Bilboa, of Prussia, and Sweden, have all required the master to be pre-
viously examined and certified to be fit by his experience, capacity, and character.
He was, formerly, when trade was constantly exposed to lawless rapacity, required
to possess military as well as ordinary nautical skill: omnibus privilegiis militaribus
gaudet. Roccus de Navibus et Nauto, note 7; Emerigon, Traité des Ass. i. 192;
Valin's Comm. 2, tit. du Capitaine, passim; Jacobsen's Sea Laws, by Frick, b. 2,
c. 1; Boulay-Paty, Cours de Droit Mar. i. 368, 376, 379; Répertoire de Jurisprudence,
tit. Capitaine de Vaisseau Marchand.
The English writers go directly to the discussion of these subjects, which they
handle dryly and with mathematical precision; while the foreign, and especially the
French jurists, not only rival their neighbors in the accuracy of their minute details
of judicial proceedings and practical rules, but they occasionally relieve the exhausted
attention of the reader by the vivacity of their descriptions, and the energy and elo-
quence of their reflections. It must be admitted, however, that the decisions of Lord
Stowell are remarkable for taste and elegance, and they are particularly distinguished
for the justness and force with which they describe the transcendent powers, and
define the delicate and imperative duties of the master. And the duties of the mas-
ter, and particularly the necessity of kind, decorous, and just conduct on the part of
the captain to the passengers and crew under his charge, and the firm purpose with
which courts of justice punish, in the shape of damages, every gross violation of such
duties, are nowhere more forcibly stated than in Chamberlain v. Chandler, 3 Mason,
242, in our American admiralty. In the English statutes of 5 and 6 Wm. IV. (see
infra, 196) the master is defined to mean every person having the charge or com-
mand of any ship belonging to a subject of Great Britain; and seaman means every
person employed or engaged to serve in any capacity on board the same; and ship
comprehends every description of vessel navigating on the sea; and steam-Fessels
employed in carrying passengers or goods are trading ships.
1 By the act of Aug. 30, 1852, ch. 106,
§ 30, 10 St. at L. 72, the master, the
owner, and the vessel are made liable for
all damage sustained by any passenger
on vessels propelled by steam, or his bag
gage, if it happens through neglect to
comply with the provisions of that statute,
or through known defects of the steaming
apparatus or hull. The act of March 24,
1860, ch. 8, 12 St. at L. 3, punishes seduc-
tion of female passengers by any person
employed on board any vessel of the
United States; and forfeits such persons'
wages to the ship for frequenting the part
of the vessel assigned to emigrant passen-
gers without orders. See 179, n. 1, fɔr
other statutes relating to passengers.
See, also, 218.
[ 217 ]
* 161
[PART V.
OF PERSONAL PROPERTY.
*
*
(1) His Power to bind the Owner, and the Owner's Power
161 over him. As the master is the confidential agent of
the owners, he has an implied authority to bind them,
without their knowledge, by contracts relative to the usual em-
ployment of a general ship. (a) This is a reasonable rule, and
founded on just principles of commercial policy. It is to be
traced to the Roman law, which gave to the master, on the voyage,
in whatever matter concerned the ship, the powers of the exercitor
or employer, and he could bind him by his acts as master; and
all the foreign marine ordinances give this power, but with
greater precision and more exact regulation. (b) The master is
appointed by the owner, and the appointment holds him forth to
the public as a person worthy of trust and confidence, and the
appointment may be revoked at discretion. The master is always
personally bound by his contracts, and the person who deals with
the captain in a matter relative to the usual employment of the
ship, or for repairs or supplies furnished her, has a double remedy.
He may sue the master on his own personal contract, and he may
sue the owner on the contract made on his behalf, by his agent,
the master.¹ The latter may, however, exempt himself from
(a) Boson v. Sandford, Carth. 58; Rich v. Coe, Cowp. 636; Ellis v. Turner, 8 T.
R. 531; Reynolds . Toppan, 15 Mass. 370; Webster v. Seekamp, 4 B. & Ald. 352;
Abbott on Shipping, 5th Am. ed. 1846, pp. 162–166.
(b) By the civil law, the master was the propositus, or agent of the owner or exer-
citor, and could bind his principal in all matters relating to the employment. The
exercitor was bound for the acts of the master ex contractu and ex delicto. Voet, Com.
ad Pand. 14. 1. 7. He was the employer, or person who received the earnings of the ves-
sel. Exercitorem autem eum dicimus ad quem obventiones et reditus omnes perveniunt.
Dig. 14. 1. 1. 15; ib. 14. 1. 1. 7; ib. 14. 1. 7. The general maritime law of Europe
does not allow the master to bind the owners personally at all, and only to the
extent of their interest in the ship and freight. The foreign ordinances and jurists
are referred to on this point by Mr. Justice Story, in the case of Pope v. Nickerson,
3 Story, 479, 480, where the marine law is discussed on the liabilities of the owners
and power of the master, with his usual ability and learning. And when, by the
charter party, the charterer takes the vessel into his own possession and control, and
navigates her by his own master and crew, the liability of the general owner ceases,
1 But when he has sued the master to
judgment, he cannot afterwards sue the
owners, although the judgment has not
been satisfied. There is no distinction in
this respect between this and other cases of
principal and agent. Priestly v. Fernie,
3 Hurlst. & C. 977. The master is not in
general liable except in case of a contract
made with him, or some act done by him
or the crew, for which he is responsible.
Blaikie v. Stembridge, 6 C. B. N. s. 894,
916; Sack v. Ford, 13 C. B. N. s. 90;
post, 206, n. 1.
See D. 14. 1. 1. § 24.
[218]
LECT. XLVI.]
* 162
OF PERSONAL PROPERTY.
personal responsibility, by expressly confining the credit to the
owner, and stipulating against his personal liability. (c)
If there was no special agreement in the case, the French law,
both in the ordinance of 1681 and in the new code, gave to the
owner the power to discharge the master in his discretion, and
without being responsible in damages for the act. M. Delvin-
court and M. Pardessus, in their commentaries on the new code,
condemn the existence of such a power, while M. Boulay-Paty
vindicates it on the ground that the appointment of the mas-
ter is an act of pure and voluntary confidence, and *the *162
principal necessarily has that control over an agent, for
whose acts he is accountable, and it is in the power of the mas-
ter to provide for the case by a special contract for indemnity in
case of dismission. (a) In England, if the master be not an owner,
the majority of the owners may remove him at pleasure; but if
he be part owner, some special reason, to be judged of by the
Court of Admiralty, though not minutely or severely, is requisite
before the court will interpose. (b) In the Scottish admiralty it
is also held, that ship owners may dismiss the master at any time,
without cause assigned, and the majority may dismiss him in his
character of master, even if he be a joint owner. (c)¹ The master
is bound to conduct himself, in all respects, with good faith, dili-
gence, and competent skill, and he is responsible to the owners, as
and the charterer becomes owner pro hac vice, and he alone is responsible for the acts
of the master. Thompson v. Snow, 4 Greenl. 264; Emery v. Hersey, ib. 407; The
Phebe, Ware, 265, 268.
(c) Hoskins v. Slayton, Cases temp. Hardw. 360; Lord Mansfield, Farmer v. Davies,
1 T. R. 108; Lord Ellenborough, Hussey v. Christie, 9 East, 432.
(a) Ord. de la Mar. des Propriétaires, art. 4; Code de Commerce, art. 218; M.
Pardessus, ii. 35; M. Delvincourt, Inst. Droit Com. ii. 294; Boulay-Paty, i. 324–329.
In the fourth edition of his Cours de Droit Com. iii. n. 626, M. Pardessus seems to
have withdrawn his objection to the owner's discretionary power to dismiss the
master.
(b) The New Draper, 4 C. Rob. 287; Johan & Siegmund, 1 Edw. Adm. 242.
(c) Bell's Comm. i. 506, 508. Mr. Curtis concludes, from an examination of the
subject, that by the maritime law the owners have a right to remove the master, who
is a part owner, at their pleasure, paying him for his share of the vessel; but if he
be removed without good cause, after an engagement for a particular voyage, he
thinks they are bound to pay him damages for his losses and responsibilities incurred
as master. Treatise on the Rights and Duties of Merchant Seamen, Boston, 1841,
165.
1 Ward v. Ruckman, 36 N. Y. 26; 34
Barb. 419; ante, 152, n. 1; St. 17 & 18
Vict. c. 104, § 240; The Royalist, Brown
& Lush. 46.
[219]
* 163
[PART V.
OF PERSONAL PROPERTY.
their agent, for his conduct. (d) 2 His misconduct will subject
him to the forfeiture of his wages, if it be gross in its circum-
stances, and attended with serious damage to the owner; and in
cases of a venial nature, the damages which his unwarrantable acts
may have produced will be a charge upon his wages. (e)
(2) Ship and Freight. The master may, by a charter party,
bind the ship and freight. This he may do in a foreign port in
the usual course of the ship's employment; and this he may also
do at home, if the owner's assent can be presumed. The ship
and freight are, by the marine law, bound to the performance of
the contract. (ƒ) As the admiralty has no jurisdiction in this
case, unless according to the unsettled doctrine laid down in
De Lovio v. Boit, (g) ³ and as the courts of common law cannot
carry into effect the principle of the marine law, by which the
3
ship itself, in specie, is considered as security to the char-
*163 terer, it was * supposed by Abbott that the owners may be
made responsible for the stipulations in a charter party so
made by the master, by a special action on the case, or by a suit
in equity. (a)
(3) To hypothecate Ship, Cargo, and Freight. — The master
can bind the owners, not only in respect to the usual employ-
(d) The French law will not allow the master, in a foreign port, to pass a night
from his ship, unless it be necessary in the business of his employers. Pardessus, iii.
67. The master cannot quit the vessel on the voyage, unless from necessity or on due
notice. Whether he be employed for a specific voyage, or the vessel be a general
trading vessel, it is his duty to perform his contract, and finish the voyage, or bring
the vessel home if possible; and in cases of capture, to remain with the ship until
recovery be hopeless. Willard v. Dorr, 3 Mason, 161. See infra, 213.
(e) Willard v. Dorr, 3 Mason, 161; Freeman v. Walker, 6 Greenl. 68. The master
of a steamboat, employed in the transportation of passengers, like the master of a
vessel engaged in the merchant service, can bind the owners in a contract for freight
to be carried according to the usual course of the boat; and he is answerable person-
ally for the diligence of all persons, even for a pilot appointed by the owners, and for
injuries resulting from want of due care. Denison v. Seymour, 9 Wend. 1; Porter v.
Curry, 7 La. 233; Patton v. Magrath, 1 Rice (S. C.), 162. In this respect, the master
of a merchant vessel or steamboat differs from the commander of a ship of war in the
public service. Nicholson v. Mounsey, 15 East, 384.
(f) Ord. de la Mar. 3, tit. 1, art. 11, and Valin, id. i. 629. But the master cannot,
merely in the character of master, bind the owners by a charter party under seal, so
as to subject them to an action of covenant. Pickering v. Holt, 6 Greenl. 160.
(g) See i. 367.
(a) Abbott on Shipping, 5th Am. ed. Boston, 1846, 161.
2 Mephams v. Biessel, 9 Wall. 370; decision. New England Ins. Co. v. Dun
The Atlantic, 9 Jur. N. s. 183.
ham, 11 Wall. 1; ante, i. 369, n. 1.
3 Now settled in accordance with that
[ 220 ]
LECT. XLVI.]
* 164
OF PERSONAL PROPERTY.
ment of the ship, but in respect to the means of employing her.
His power relates to the carriage of the goods, and the supplies
requisite for the ship, and he can bind the owners personally as
to the repairs and necessaries for the ship; and this was equally
the rule in the Roman law. But the supplies must appear to be
reasonable, or the money advanced for the purchase of them to
have been wanting, and there must be nothing in the case to
repel the ordinary presumption that the master acted under the
authority of the owners. (b) If the moneys be advanced to the
master while abroad, it will be incumbent on the creditor, if he
means to charge the owner, to show the apparent or presumed
necessity of the repairs or supplies for which the money was
advanced; and this strictness, requisite to the exercise of the
master's authority, arises from the facility of misapplication, and
the temptation to abuse, to which the power is incident. But
if the money was fairly and regularly lent to supply the necessi-
ties of the ship, the misapplication of it by the master will not
affect the lender's claim upon the owner. This is equally the
language of the civil law, and of all the foreign civilians. (c)
The great case of Cary v. White, which underwent much discus-
sion, established the principle of the personal responsibility of
the owners, provided the creditor could show the actual existence
of the necessity of those things which gave rise to his
demand; and this * doctrine is considered to be equally *164
well established in the jurisprudence of this country. (a)
Under the French ordinance of 1681, the master might hypoth-
(b) Dig. 14. 1. [§§] 8, 10, 11; Speerman v. Degrave, 2 Vern. 643; Samsun v. Brag-
gington, 1 Ves. 443; Ross v. The Ship Active, 2 Wash. 226; Abbott on Shipping, 5th
Amer. ed. 1846, 169; Webster v. Seekamp, 4 B. & Ald. 352; The Ship Fortitude, 3
Sumner, 228; The Law Reporter, i. [124.] But it is an established principle that
the authority of the master as to the employment of the ship, or repairing the ship,
or supplying the ship with provisions, abroad as well as at home, is limited by the
express or implied authority of the laws of his own country, or the usage of trade, or
the business of the ship, or the instructions of the owner, and he cannot bind the
ship or owner beyond these limits. Story, J., Pope v. Nickerson, 3 Story, 477, 480.
Judge Story, in this case, after citing and reasoning on the foreign authorities, arrives
at the conclusion that the master can make no contract in a foreign country which
shall bind the owners of a ship, except as to what they expressly authorize, or the
general law of his own country has recognized, and that then it will bind them no
further than that law binds them, whether it be in personam or in rem.
(c) Dig. 14. 1. 9; Loccenius, lib. 2, c. 6, n. 12; 2 Emerig. 440; Boulay-Paty, Cours
de Droit Com. i. 119; Roccus, de Navibus, not. 23, 24. See, infra, 171, 172, n.
(a) 1 Bro. P. C. 284, ed. 1784; s. c. Abbott on Shipping, 5th Am. ed. 1846, 173;
[221]
* 164
[PART V.
OF PERSONAL PROPERTY.
ecate the ship and freight, and sell the cargo to raise moneys for
the necessities of the ship in the course of the voyage, but he
could not charge the owners personally.¹ He could only bind
Rocher v. Busher, 1 Starkie, 27; Wainwright v. Crawford, 4 Dallas, 225; Milward v.
Hallett, 2 Caines, 77; James v. Bixby, 11 Mass. 34; The Jane, 1 Dods. 461; The
Ship Fortitude, 3 Sumner, 228; The Law Reporter, i. 124. Good faith and an apparent
necessity, under the exercise of the judgment at the time, are sufficient to justify the
bottomry loan. This mitigated necessity was allowed by Mr. Justice Story in the
case last cited, after great research, to be sufficient.
1 Power of the Master.— (a) Agency. —
It has already been intimated that under
our admiralty law the master may bind
the vessel in some cases where he could
not have bound the general owners; The
Freeman v. Buckingham, 18 How. 182,
189, and other cases, ante, 138, n. 1, quali-
fying the language of some English cases;
The City of New York, 3 Blatchf. 187;
Fox v. Holt, 36 Conn. 558, 572. See also
the act of March 3, 1851, ch. 43, 9 U. S.
St. at L. 636, § 5, ad finem. But the power
of the master to bind his owners per-
sonally has been shown to be only a
branch of the general law of agency.
138, n. 1. See 172, n. 1.
(b) Law of the Flag. The flag of the
ship is thought to be notice to all the
world that the master's authority is that
conferred by the law of that flag. Post,
174, n. 1. That law governs, as be-
tween the parties to
parties to a contract of
affreightment, in respect of sea damage
and its incidents, unless the contract
provides otherwise. Lloyd v. Guibert,
6 Best & S. 100, 117, 142; L. R. 1 Q. B.
115, citing 163, note (b), and approving
Pope v. Nickerson. See 217, n. (e).
But compare The Hamburg, infra. The
same principles were applied to the case
of a bottomry bond given under peculiar
circumstances to raise money to pay
for necessary supplies. The Karnak,
L. R. 2 P. C. 505, affirming L. R. 2 Ad. &
Ec. 289. See, further, The Bahia, Brown.
& Lush. 292; 11 Jur. N. s. 90. Ante, ii.
459, n. 1. In The Hamburg, 2 Moore,
F. C. N. s. 289, Brown. & Lush. 253, the
validity of a bottomry bond on a foreign
ship, freight, and English cargo, and pay-
able in England, was said to be determined,
so far as the cargo was concerned, not by
the law of the ship or of the port where
the bond was given, but by the general
maritime law as administered in England.
This was explained by Willes, J., in giving
the judgment of the Exchequer Chamber
in Lloyd v. Guibert, as only meaning that
the rule of evidence by which the neces-
sity of the bond was to be shown was to
be determined by the lex fori. But see
The Patria, L. R. 3 Ad. & Ec. 436, 461.
(c) As to Necessary Supplies.—When a
material man asserts a claim against the
owners only, the necessity of repairs need
not be shown affirmatively, and in any
case a material man is not held to the
same diligence in inquiry concerning the
necessity of them as the lender on bot-
tomry. The Grapeshot, 9 Wall. 129, 136,
140; post, 172, n. 1. Contra, Ford v.
Crocker, 48 Barb. 142; Whitten v. Tisdale,
43 Me. 451. Even if a lien upon the ves-
sel is asserted by an admiralty proceeding
in rem, the presumption is that the ship,
as well as master and owner, is liable,
and that credit to the vessel was neces-
sary, when it appears that the repairs
and supplies were ordered by the master,
and that they were necessary for the ship
when lying in port, or to fit her for an in-
tended voyage, unless it is shown that
the master had funds, or that the owners
had sufficient credit, and that the furnisher
or lender knew it, or knew other facts
sufficient to put him on inquiry. The
[ 222 ]
LECT. XLVI.]
* 164
OF PERSONAL PROPERTY.
their property under his charge; and the new code of commerce
has followed the same regulation. It declares, that the owner is
civilly responsible for the acts of the master, in whatever relates.
to the vessel and the voyage, but the responsibility ceases on the
abandonment of the vessel and freight. The power of the master
is limited to raise money for the necessities of the voyage, by bor
rowing on bottomry, or pledging, or selling goods to the amount
of the sum wanted. (b) The French civilians are zealous in the
vindication of the equity and wisdom of their law, which, on
abandonment of the ship and freight, discharges the owners as to
the contracts, as well as to the defaults of the master. Emerigon
has bestowed an elaborate discussion on the point; and this was
equally the maritime law of the middle ages. (c) The law on this
(b) Ord. liv. 2, tit. 8, Des Propriétaires, art. 2; Code de Commerce, art. 216, 234.
(c) Code, art. 216; Emerigon, Cont. a la Grosse, c. 4, sec. 11; Boulay-Paty, i.
272-278.
Lulu, 10 Wall. 192, 203; The Kalorama,
ib. 204; The Grapeshot, sup., qualifying
the language of Thomas v. Osborn, 19
How. 22; Pratt v. Read, ib. 359. See The
Washington Irving, 2 Benedict, 318; The
Sarah Starr, 1 Sprague, 453; The A. R.
Dunlap, cited 4 Am. Law Rev. 673; The
Perla, Swabey, 353; 4 Jur. N. s. 741. The
necessity for the supplies is proved where
such circumstances of exigency are shown
as would induce a prudent owner, if
present, to order them, or to provide
funds for the cost of them on the security
of the ship. The Lulu, 10 Wall. 192, 201;
The Grapeshot, sup.; post, 172, n. 1. See
Bliss v. Ropes, 9 Allen, 339; Negus v.
Simpson, 99 Mass. 388; Whitten v. Tis-
dale, 43 Me. 451. Indeed, it is said, 9
Wall. 141, that the necessity for them is
proved by the master's ordering them on
the credit of the ship, in favor of the
material man, or of the ordinary lender of
money, to meet the wants of the ship,
who acts in good faith. Compare 172, n.
1, as to bottomry.
(a) When Owners are present. It has
been held that the owners of a ship though
in a home port (i. e. generally the port of
the owner's residence; White's Bank v.
Smith, 7 Wall. 646, 651; Hill v. Steamer
Golden Gate, Newb. Adm. 308; Donnell v.
The Starlight, 103 Mass. 227, 231; com-
pare Weaver v. The S. G. Owens, 1 Wall,
Jr. 359, 366, with Thomas v. Osborn, 19
How. 22, 29) are responsible for necessary
supplies furnished on the order of the cap-
tain, unless it should appear that they were
so furnished exclusively on his credit.
Provost v. Patchin, 5 Seld. 235; Glading v.
George, 3 Grant's Cases, 290; Winsor v.
Maddock, 64 Penn. St. 231. Contra, Dyer
v. Snow, 47 Me. 254. And it is laid down
by the Supreme Court of the United
States that although the presence of the
owner in a foreign port (i.e. of another
state than that to which the vessel be-
longs; The Lulu, 10 Wall. 192, 200; ib.
213; Negus v. Simpson, 99 Mass. 388)
defeats the implied authority of the mas-
ter, it would not destroy such credit as is
necessary to furnish food to the mariners,
and save the vessel and cargo from the
perils of the seas. The Kalorama, 10
Wall. 204, 214. See The Guy, 9 Wall.
758; 5 Blatchf. 496; 1 Ben. 112.
As to master's power to give a bot
tomry bond, see 172, n. 1.
[223]
* 165
[PART V.
OF PERSONAL PROPERTY.
subject is the same in Holland as in France; (d) and the learned
Grotius, in a work where we should hardly have expected to find
such a municipal provision, (e) condemns the rule in the Roman
law making part owners personally bound, in solido, for these
pecuniary contracts of the master, as very improperly introduced,
and as being equally contrary to natural equity and public
utility.
* 165
*Sir William Scott, in the case of the Gratitudine, (a)
doubts whether the master has authority, even in a case of
consummate distress, and in a foreign port, to bind the owners
beyond the value of the ship and freight. But he admits, in that
case, after an admirable discussion of the principles and authori-
ties in the marine law on the subject, that the master has power
to hypothecate the cargo in a foreign port, in a case of severe ne-
cessity, for the repairs of the ship, and that the Court of Admiralty
would enforce the lien. However, from the cases already referred
to, it would seem to be settled in the English and American law,
that the owner may be personally bound by the act of the master,
in respect to the repairs and supplies necessary for the ship while
abroad, and without other means to procure them; and if the
owner be personally bound, it must be, as it was in the Roman
law, to the extent of the requisite advances. Emerigon, while he
admitted that the master might hypothecate the ship and sell the
cargo, to raise money to meet the necessities of the ship, denied
that he could bind the owners personally by a bill of exchange
drawn on them for the moneys raised. But Valin held otherwise;
and Boulay-Paty is of opinion that the new code gives the captain
a discretion on this point, and he concurs with Valin and the
ancient nautical legislation. (b)
(d) Van Leeuwen's Comm. on the Dutch Law, b. 4, c. 2, sec. 9.
(e) Grot. de Jure Belli et Pacis, b. 2, c. 11, sec. 13.
(a) 3 C. Rob. 240, 274.
(b) 2 Emerigon, 458; Valin, Comm. tit. du Capitaine, art. 19; Boulay-Paty, ii. 73,
74. There is a difference in the foreign ordinances and among the foreign jurists on
the question whether the owners of the goods sold during the voyage, for the neces-
saries of the ship, when the ship subsequently perishes in the voyage, by reason of
which all remedy upon the ship is gone, have a remedy against the master or owners
of the ship personally. Mr. Justice Story, in Pope v. Nickerson, 3 Story, 493,-494,
concludes, that in justice the owners ought to be personally bound for the contracts
of the master, not exceeding their interest in the ship and freight.
[224]
LECT. XLVI.]
* 166
OF PERSONAL PROPERTY.
*
It has
(4) Lien in England for Wages and Expenditures.
been a question of some doubt, and even contrariety of opinion
in the books, whether the master had a lien on the ship or freight
for his wages, supplies, or advances on account of the ship, either
at home or abroad. But the question appears to be now clearly
and definitely settled in England, that the master contracts upon
the credit of the owners, and not of the ship, and he has no lien
on the ship, freight, or cargo, for any debt of his own, as for
wages, or stores furnished, or repairs done at his expense,
either at home or on the voyage. The principle was set- *166
tled by Lord Mansfield, in the case of Wilkins v. Carmi-
chael, (a) against the master's claim to a lien on the ship for wages,
or money expended for stores, or repairs done in England, and it
was there shown to have been the previous law and usage. (b) It
was afterwards solemnly adjudged, in Hussey v. Christie, (c) that
the master had no lien on the ship for money expended, or debts
incurred, for repairs made to it on the voyage; and in Smith v.
Plummer, (d) it was decided by equal authority, that the master
had no lien on the freight for his wages or disbursements on
account of the ship during the voyage, or for the premiums paid by
him abroad for the purpose of procuring the cargo. The captain
is distinguished from all other persons belonging to the ship, and
he is considered as contracting personally with the owner, while
the mate and mariners contract with the master on the credit of
the ship. The rule has its foundation in policy and the benefit
of navigation, and it would be a great inconvenience, if, on the
change of captain for misbehavior, or any other reason, he would
be entitled to keep possession of the ship until he was paid, or to
enforce the lien while abroad, and compel a sacrifice of the ship. (e)
Sir William Scott, in the case of the Favorite, (f) observed, that
it had been repeatedly decided, that the master could not sue in
the admiralty for his wages, because he stood on the security of
(a) Doug. 101.
(b) Ragg v. King, Str. 858; Read v. Chapman, ib. 937.
(c) 9 East, 426. Contra, Watkinson v. Bernardiston, 2 P. Wms. 367, and Lora
Eldon's opinion; Abbott on Shipping, 5th Am. ed. Boston, 1846, 185; but see infra,
169, 171.
(d) 1 B. & Ald. 575. See, also, to the same point, Atkinson v. Cotesworth, 5 Dowl.
& Ry. 552; [Gibson v. Ingo, 6 Hare, 112, 122.]
(e) Lord Mansfield, in Wilkins v. Carmichael, Doug. 105.
(ƒ) 2 C. Rob. 232.
VOL. III.
15
[225]
* 167
[PART V.
OF PERSONAL PROPERTY.
his personal contract with his owner, not relating to the bottom
of the ship. The language of the case of Smith v. Plummer was
equally that he had no lien on the cargo for money expended,
*
or debts incurred by him for repairs, or the necessary pur-
*167 poses of the voyage. He can hypothecate and create a
lien in favor of others, but he himself must stand on the
personal credit of his owners.1
(5) Lien in the United States. The doctrine before us in
the English law remains yet to be definitely declared and settled
in this country.
The case of the ship Grand Turk (a) is a decision in the
(a) 1 Paine, 73.
Master's Lien. In Bristow v. Whit-
more, 4 De G. & J. 325, 334, the reasons
for denying the master's lien are thought
to be, that he is only the servant of the
owner, and cannot, as against him, have
any possession of the ship or the freight;
(but it should be remembered that ad-
miralty liens do not depend on posses-
sion;) the inconvenience of depriving the
owner of his ship and his freight until he
has first settled all accounts with the mas-
ter, and the power which the master has
of pledging the credit of the owner and of
hypothecating the vessel, together with
the fact that he might have protected
himself by bargain with the owners.
These principles were admitted in the
House of Lords, but the decision was re-
versed on the ground that in the particular
case the contract was prima facie unau-
thorized, and that, therefore, the ordinary
rules between principal and agent applied,
and that if the owner adopted the special
contract by which the master incurred
special expenses, he must bear the bur-
dens of it also, in equity, and was only en-
titled to the net freight. 9 H. L. C. 391.
See The Larch, 2 Curtis, 427, 432. By
the Merchant Shipping Act, 1854 (17
& 18 Vict. c. 104, § 191), the master is
given the same lien for wages that sea-
men have. And this lien has been en-
forced in the admiralty courts of the
United States. The Havana, 1 Sprague,
402. On the other hand, in England, this
section has been treated as only regulat
ing the remedy, and has on that ground
been applied in favor of the master of an
American vessel. The Milford, Swabey,
362; 4 Jur. N. s. 417; post, 170, n. 1.
The later American cases deny that
the master has a lien on the ship for
wages. The Dubuque, 2 Abbott, U. S.
20; Ex parte Clark, 1 Sprague, 69, 70;
Revens v. Lewis, 2 Paine, 202; Tisdale v.
Grant, 12 Barb. 411. And the same was
held as to advances and disbursements
abroad in The Larch, 2 Curtis, 427; but
the lien was recognized in Ex parte Clark,
sup. & note; Kelly v. Cushing, 48 Barb.
269; Sorley v. Brewer, 18 How. Pr. 276;
Sturtevant v. Brewer, 4 Bosw. 628, 630..
As the master has no lien for his wages
on the one hand, so the maxim that freight
is the mother of wages does not apply to
him on the other, and the owners are
liable for them up to the time of the dis-
solution of the contract by capture or
shipwreck. Moore v. Jones, 15 Mass. 424;
Hawkins v. Twizell, 5 El. & Bl. 883; McGil-
very v. Stackpole, 38 Me. 283. The expla-
nation is to be found sup. 166; 138, n. 1.
Miller v. Woodfall, 8 El. & Bl. 493,499, 500.
And he is entitled to reasonable compensa-
tion for services necessarily rendered after
the wreck. Duncan v. Reed, 39 Me. 415.
[226]
LECT. XLVI.]
* 167
OF PERSONAL PROPERTY.
Circuit Court of the United States for New York, on the point
that the master's wages and perquisites were no lien on the ship;
and it was so ruled, also, in Fisher v. Willing. (b) In those
cases, the English authorities were reviewed and cited by the
court, and the principle advanced in them was not questioned,
and seemed to be assumed as settled law. But in the case of
Gardner v. The Ship New Jersey, (c) it was rather loosely men-
tioned, that the master's claim for disbursements abroad was a
lien on the ship; and more recently, in the Circuit Court of the
United States for Massachusetts, (d) the rule was laid down that
the master had a lien upon the freight for all his advances and
responsibilities abroad upon account of the ship, and it seemed
to be the strong inclination of the court to acknowledge the
master's lien on the ship for the same object. The question,
therefore, though considered to be settled in England, is still a
vexed and floating one in our own maritime law. (e)
(b) 8 Serg. & R. 118.
(d) Ship Packet, 3 Mason, 255.
(c) 1 Peters Adm. 227.
(e) In the case of the Ship Packet there is no reference to the decision in Smith
v. Plummer, though that decision contained a critical review of all the authorities, and
put at rest, in Westminster Hall, the very point as to the lien on freight, and in oppo-
sition to the rule laid down in The Ship Packet. In Ingersoll v. Van Bokkelin, 7
Cowen, 670, 5 Wend. 315, s. c., it was decided, after a review of the American author-
ities, that a master had a lien on the freight and cargo for his necessary advances
made, and responsibilities incurred, for the use of a ship in a foreign port. The same
principle had been previously assumed and declared by the Supreme Court of Massa-
chusetts, in Lane v. Penniman, 4 Mass. 92; Lewis v. Hancock, 14 id. 72; Cowing v. Snow,
ib. 415; and was also declared by the Supreme Court of New Hampshire, in Shaw v.
Gookin, 7 N. H. 19. The general current and language of the American cases seem now
to have settled the question, that the master has such a lien for his advances and respon-
sibilities as against the owner, though there should be no question as to the owner's
solvency and personal responsibility. The American cases have taken the most
reasonable side of the question. In Drinkwater v. Brig Spartan, Ware, 149, it was
adjudged, in the District Court of Maine, after a full and learned examination of the
cases, that the master had a lien on the freight for his necessary disbursements for
incidental expenses, and the liabilities which he contracts for these expenses during
the voyage, and also for his own wages. But, by the case of Ingersoll v. Van Bokkelin,
as settled in the Court of Errors of New York, the English law was recognized, that
the master had no lien on the freight, nor on the vessel, for his wages. See, also, to
8. P., Phillips v. Scattergood, Gilpin, 1; Steamboat Orleans v. Phoebus, 11 Peters,
175. By the general maritime law, every contract of the master within the scope of
his authority, as the contract of affreightment by charter party, or bill of lading, binds
the vessel, and gives the creditor a lien upon it for his security. The Paragon, Ware,
322. It seems at length to be the established doctrine in this country, that the master
can sue in the admiralty in personam, and, to a qualified extent, in rem, when he has a
[227]
* 169
[PART V.
OF PERSONAL PROPERTY.
* 168
(6) Lien of Material Men. - * The civil law, and the
law of those countries which have adopted its principles,
give a lien upon the ship, without any express contract for such
a claim, to the person who repairs or fits out the ship, or advances
money for that purpose, whether abroad or at home. (a)
*169 The English law allows of such a lien, from the neces-
*
sity of the case, for repairs and necessaries while the ship
is abroad; but it has not adopted such a rule as to repairs made,
and necessaries furnished to the ship while at home, (a) except
it be in favor of the shipwright who has repaired her, and has
not parted with the possession. In that case, he is entitled to
retain possession until he is paid for his repairs. But if he has
once parted with the possession of the ship, or has worked upon
it without taking possession, he is not deemed a privileged cred-
itor having a claim upon the ship itself. (6) In this country, it
lien on the freight, or on any fund in court. Willard v. Dorr, 3 Mason, 91; Ham-
mond v. Essex F. & M. Ins. Co., 4 id. 196; The Brig George, 1 Sumner, 151, 157;
Drinkwater v. The Brig Spartan, Ware, 149; Abbott on Shipping, 5th Am. ed. Bos-
ton, 781.
(a) Dig. 14. 1. 1; ib. 42. 5. 26, 34; 1 Voet's Comm. 20, 2, 29; Casaregis, Disc. 18;
1 Valin's Comm. 363, 367. The new French code, art. 191, gives the order of privi-
leged debts which are liens upon the ship, and take preference of each other, and to
all other debts, in the order in which they are placed. The first four items which
have preference, relate to costs of suit and port charges, as, (1.) Legal costs; (2.)
Pilotage; (3.) Expenses of guarding the vessel; (4.) Storage. Then follow, (5.) The
expenses of repairing the vessel at the last port; (6.) Wages of the master and crew
in the last voyage; by the Consolato, and the ordinances of Oleron, and of 1681, the
wages of sailors, for the last voyage, had the preference over all other claims; (7.)
Moneys borrowed by the captain in the last voyage for the necessary expenses of the
ship, and the reimbursement of the price of the goods sold by him for the same object;
if the captain made successive loans, or sales of cargo, from necessity, the last loan
and sale, in point of time, is preferred, if made at a different port; (8.) Debts due to
the vendor, material men and shipwrights, if the ship has not made a voyage, and to
those who furnish stores and necessary supplies before her departure, if she had
already made a voyage; the Consolato and the ordinance of 1681 gave those cred-
itors a preference to all others; the vendor loses his preference after the ship has
sailed; (9.) Sums lent on bottomry for the reparation and equipment of the vessel
before her departure; (10.) Premiums of insurance on the ship for the last voyage.
Code de Commerce, art. 191; Pardessus, Droit Com. iii. n. 954; Boulay-Paty, Cours
de Droit Com. i. 110-124. When the master is ready to sail, the ship is not liable to
attachment, except for debts relative to the voyage about to be commenced. Par-
dessus, Droit Com. iii. 32.
(a) Watkinson v. Bernardiston, 2 P. Wms. 367; Buxton v. Snee, 1 Ves. 154; Ex
parte Shank, 1 Atk. 234; Wilkins v. Carmichael, Doug. 101; Hussey v. Christie, 13
Ves. 594; s. c. 9 East, 426.
(b) Franklin v. Hosier, 4 B. & Ald. 341; Ex parte Bland, 2 Rose, 91. Abbott on
[228]
LECT. XLVI.]
* 170
OF PERSONAL PROPERTY.
was formerly, and rather loosely declared, in some of the admi-
ralty courts of the United States, that the person who repaired,
or furnished supplies for a ship, had a lien on the ship for his
demand. (c) But the doctrine was examined, and the rule
declared, with great precision, by the Supreme Court of the
United States, in the case of the General Smith, (d) and reas-
serted in the case of the St. Jago de Cuba. (e) The rule of the
English common law (ƒ) is explicitly adopted, that material
men and mechanics, furnishing repairs to a domestic ship, have
no particular lien upon the ship itself, or its proceeds, in court,
under a decree and sale, for the recovery of their demands,
with the exception of the shipwright who has possession of the
ship. As long as he retains possession, he has a lien for his
repairs. The distinction is, that if repairs have been
made, or * necessaries furnished, to a foreign ship, or to a *170
ship in the port of a state to which she does not belong,
the general marine law, following the civil law, gives the party
a lien on the ship itself for its security, and he may maintain a
suit in rem, in the admiralty, to enforce his right. (a) But in
respect to repairs and necessaries in the port or state to which
the ship belongs, the case is governed by the municipal law of
that state, and no lien is implied, unless it has been recognized
by that law. (b) If a material man gives personal credit, even
Shipping, part 2, c. 3, secs. 9-14, contains a history of the English cases on the point.
The rule is settled in Scotland in perfect conformity to the English law. See Ham-
ilton v. Wood, and Wood v. Creditors of Weir, 1 Bell's Commentaries, 527, who says
that the deviation in England from that maritime rule which prevails with other
nations has proceeded rather from peculiar notions of jurisdiction than from any
general principle of law or expediency, and that it has been established in Scotland
by mere adoption.
(c) Stevens v. The Sandwich, District Court for Maryland, 1 Peters Adm. 233, note;
Gardner v. The Ship New Jersey, ib. 223.
(d) 4 Wheat. 438.
(e) 9 Wheat. 409. See, also, Peyroux v. Howard, 7 Peters, 324, s. p.
(ƒ) Buxton v. Snee, 1 Ves. 154; 3 Knapp, 95.
respect to the power of the master, in a
6 Dana (Ky.), 27, 28.
(a) The Ship Fortitude, 3 Sumner, 228; Law Reporter, i. 124. It has been sug-
gested in some of the cases, that any place where the vessel and the owner are not
together is to be deemed a foreign port, in
proper case, to subject the vessel to a lien.
(b) The General Smith, 4 Wheat. 438; Story, J., in the case of the Brig Nestor,
1 Sumner, 74, 79; The Schooner Marion, 1 Story, 68; Read v. The Hull of a New
Brig, ib. 246. See, also, supra, i. 379, 380. The question concerning the extent of the
admiralty jurisdiction in the United States, in the case of service bestowed, and
supplies or moneys furnished for a vessel, was elaborately and interestingly consid
[229]
• 170
[PART V.
OF PERSONAL PROPERTY.
in the case of materials furnished to a foreign ship, he loses his
lien so far as to exclude him from a suit in rem, yet he will be
entitled, upon petition, to be paid out of the remnants and sur-
plus remaining in the registry. (c) This rule is subject to the
qualification that an express contract for a stipulated sum is not
of itself a waiver of the lien, unless the contract contain some
ered in Davis v. Child, in the District Court of Maine. 3 N. Y. Leg. Obs. 147,
[Daveis, 71.] It was declared that by the general maritime law of Europe mate-
rial men had a privileged lien on a vessel for repairs and supplies, but that in this
country they had no such lien for repairs made or supplies furnished, in a port of
the state to which the vessel belonged, unless allowed by the local law; though, if
the vessel was in the port of a state to which she did not belong, she was con-
sidered a foreign vessel, and the general maritime law applied. It was further
adjudged, that the lender of money, or one whose goods were sold in the course
of the voyage for the necessary wants of the vessel, had the same privilege as the
material men, and the ship stood hypothecated for his security. They were con-
sidered as giving credit to the vessel and to the owner, and could maintain a
libel in the Admiralty in rem against the vessel, and in personam against the
owner. References were made to the civil law and to the foreign maritime jur-
ists in support of these established positions, by the learned judge; but it was
further observed, that the admiralty had no direct jurisdiction over trusts, nor as
to matters of accounts, merely as accounts, even in maritime affairs. The admiralty
takes cognizance of accounts only as incidental to other matters within its jurisdic-
tion. Nor could the admiralty enfcrce the specific performance of any agreement
relative to maritime affairs. These are matters of equity jurisdiction. This declara-
tion as to the limitations of admiralty jurisdiction is important, and clears doubts
and difficulties that may have been loosely started on the point. State laws fre-
quently make provision for the security of material men. Thus, in Illinois, boats,
and vessels of all descriptions, built or repaired or equipped in that state, are liable
to be attached for debts contracted by the owner, master, supercargo, or assignee, for
work and supplies by mechanics, tradesmen, &c. Revised Laws of Illinois, ed. 1833,
95. A similar law exists in Indiana, Revised Statutes of Indiana, 1838, 120; and in
Pennsylvania, Purdon's Dig. 79; and in Missouri, by statute, in 1838, and in Maine,
by statute of 19th February, 1839, and in England, by statute, in 1840. In Con-
necticut no such lien exists by their municipal law. Buddington v. Stewart, 14
Conn. 404. A specific lien on chattels, in the hands of a tradesman, or artificer, or
bailee, for the labor and skill bestowed on them, was a part of the common law.
Chapman v. Allen, Cro. Car. 271; Jackson v. Cummins, 5 M. & W. 349; M'Intyre v.
Carver, 2 Watts & S. 392. The Supreme Court of the United States has, in the
cases above cited, assumed, that the port of another state was, as respects this rule,
a home port. The Court of Sessions, in Scotland, has also held, that Hull, in Eng-
land, was, in respect to Scotch owners, a foreign port. Stewart v. Hall, 1 Bell's
Comm 525, note. But that decision was reversed in the House of Lords, as being a
point unnecessary; and the question is still open, as to what shall be deemed a home
port in respect to repairs. Mr. Bell suggests that the natural course would be, to
adopt the rule of the navigation laws, and to hold all British ports as home ports,
because access to the custom house title and communication with the owners are so
easy, and may be so prompt. See supra, 94.
(c) Zane v. The Brig President, 4 Wash. 453.
[ 230 ]
LECT. XLVI.]
*170
OF PERSONAL PROPERTY.
1
stipulations inconsistent with the continuance of the lien. (d) ¹
In New York, by statute, (e) shipwrights, material men, and
(d) Peyroux v. Howard, 7 Peters, 324. In the case of the Brig Nestor, 1 Sumner,
73, it was held, that giving credit for a fixed time for supplies did not extinguish the
lien for the supplies. A lien may exist for a debt solvendum in futuro, and many
instances of the kind were stated in the case. Nor does the fact that the master and
owner are personally liable for the supplies destroy the lien. In the case of the
Waldo, in the District Court of Maine, 1841, [Daveis, 161,] it was held, that the
shipper may not only sue the owners for the injury to goods for the defaults of the
master, but he has a lien on the ship.
(e) By the New York Revised Statutes, debts contracted within the state by the
master, owner, agent, or consignee of every vessel are a lien when contracted for
1 Lien for Supplies to Domestic Ships.
Some of the states have given material-
men a lien for repairs and supplies to ves-
sels at their home ports by statute; and
the question has been much mooted how
far such liens are to be enforced in the
Admiralty, and how far they can be in the
state courts.
It may sometimes be hard to decide
whether the so-called lien is more analo-
gous to a maritime lien or to an attachment
at common law, Leon v. Galceran, 11 Wall.
185, 189; Williamson v. Hogan, 46 Ill.
504, 518; and it has been laid down that
there is a clear distinction between a
maritime lien and a right to a proceeding
in rem; The Mary Ann, L. R. 1 Ad. & Ec.
8, 11; The Two Ellens, L. R. 4 P. C. 161;
see The Maggie Hammond, 9 Wall. 435,
456; so that a statute merely giving a
proceeding in rem in a state court where
there is no such proceeding in the Admi-
ralty, and not assuming to create a mari-
time lien, may perhaps take effect without
encountering the decisions mentioned ante,
i. 369, n. 1, or raising the above questions.
ing in personam. Between 1859 and 1872
this was forbidden by the 12th Admiralty
Rule; but before that, such suits were en-
tertained in The St. Lawrence, 1 Black,
522, and The Potomac, 2 Black, 581, on
the ground that the court might entertain
them in its discretionary power to regu-
late its own practice. See, also, The
America, 1 Lowell, 176; 2 Am. Law
Rev. 458; Brookman v. Hamill, 43 N. Y.
554, 561; The Harrison, 2 Abbott U. S.,
74; The Milford, ante, 167, n. 1. It was
maintained in two able articles, 5 Am. Law
Rev. 581, 604, 7 id. 1, that the Rule referred
to was in substance the denial of a right,
and not simply a regulation of procedure,
on the ground that the statutory lien was
maritime and a substantive right, and
that the only method of enforcing it was
by a proceeding in rem. It is assumed in
this argument that a right to a proceed-
ing in rem and a maritime lien are con-
vertible terms, and that to deny either is
to deny the other. 7 Am. Law Rev. 9.
If this be so, it is not perceived why a
state law purporting to give a maritime
lien is not in substance an attempt to im-
pose a new process on a court outside of
its jurisdiction. If, on the other hand,
the state law is not to be so considered, it
must be on the ground that the lien
and the right to the proceeding are dis-
tinguishable, in which case the latter
seems to be within the power of the court
to regulate. If it should be admitted that
If, however, the statute purports to
create a lien analogous to a maritime lien,
and independent of special statutory pro-
cess by which the state courts are empow-
ered to enforce it, the question arises
whether the lien does not follow the nature
of the service or contract to which it is
annexed, and is not to be enforced in the
admiralty, and there only, by a proceeding
in rem, just as the claim could previously a distinction exists between the lien and
have been recovered there by a proceed the right to a proceeding in rem as the
[231]
*171
[PART V
OF PERSONAL PROPERTY.
*
*171 suppliers of ships have a lien for the amount of their
debts, whether the ship be owned within the state or not:
work done or materials furnished for building, repairing, fitting, or equipping the
vessel, or for provisions and stores furnished, or for wharfage, and expenses of keep-
ing the vessel in port. The lien is preferred to any other lien, except mariners'
authorities cited show, but should be
argued that to deny the latter is substan-
tially to render the former worthless, it
is nevertheless not wholly clear why the
United States courts may not decline to
apply a new process for the purpose of
enhancing the value of the right, and
stop short at recognizing the right when
brought before them by means of exist-
ing processes; just as the English Ad-
miralty will not give a proceeding to en-
force a common law possessory lien, but,
on the other hand, will not enforce a sub-
sequent maritime lien until the party en-
titled to the former is satisfied. Cargo
ex Galam, 2 Moore, P. C. N. s. 216, 236.
Whatever may be the duty of the
admiralty courts as to enforcing a lien
created and annexed to a maritime ser-
vice by state laws, the opinion of the
Supreme Court on the kindred subject
of the right of state courts to enforce
such a lien seems to be that although
common law courts are not competent
to enforce a maritime lien by a pro-
ceeding in rem, a lien annexed to mari-
time services by statute, and not arising
independent of it, is not a maritime lien,
and therefore is not within the exclusive
jurisdiction of the admiralty, but may be
enforced by the state courts by such a
proceeding. The Belfast, 7 Wall. 624,
645; Leon v. Galceran, 11 Wall. 185, 191;
The Steamboat Victory, 40 Mo. 244;
The Steamboat Magnolia, 45 Mo. 67;
Donnell v. The Starlight, 103 Mass. 227;
Williamson v. Hogan, 46 Ill. 504; South-
ern Dry Dock Co. v. Gibson, 22 La. An.
623; 4 Am. Law Rev. 664. See Vose
v. Cockcroft, 44 N. Y. 415.
Contra, The
Harrison, 2 Abbott, U. S. 74, 79; The
Josephine, 39 N. Y. 19, explained, how-
ever, in Sheppard v. Steele, 43 N. Y.
52, and in Brookman v. Hamill, ib. 554.
In the latter case the statement in The
Belfast, supra, is supposed to refer only
to those contracts which are not maritime,
and over which the admiralty has no
jurisdiction of any sort. In 'such cases,
of course, a lien and process in rem may
be given in the state courts. Sheppard
v. Steele, sup. ; Foster v. The Richard Bus-
steed, 100 Mass. 409. But the statement
of the Supreme Court does not seem to
be limited to such contracts. Ante, i. 369,
n. 1. (cf. Edith, 11 Am. L. Reg. N. s. 214.)
When the discussion had reached this
point, the New York Pilot case, Ex parte
McNiel, 13 Wall. 236, sanctioned the
principle that if a transaction and the
obligation arising out of it are of admi-
ralty jurisdiction, so that a suit in personam
may be maintained, and there is attached
thereto a valid lien, in its nature en-
forceable by admiralty process, it is no
objection to the jurisdiction of the federal
courts that the lien was created solely by
a state statute. 7 Am. Law Rev. 17, 18.
Soon after this decision, the 12th Admi-
ralty Rule was amended so as to read, “ In
all suits by material-men for supplies or
repairs, or other necessaries, the libellant
may proceed against the ship and freight
in rem, or against the master or owner alone
in personam." 13 Wall. xiv.; cf. 7 Am.
L. R. 19. On the question whether do-
mestic material men have a lien by our
admiralty law, the probable origin of the
maritime lien as an offshoot from what is
stated 218, n. 1; ii. 260, n. 1, may affect
the weight of European precedents. As
to later invented reasons of policy (cf. ii.
451, n. 1, (b),) our policy of recording in-
cumbrances raises a doubt whether secret
liens are to be more favored in this than in
other cases where the debtor can be sued.
1
[232]
LEUT. XLVI.]
* 171
OF PERSONAL PROPERTY.
•
but the lien ceases after due security is given, or when the vessel
leaves the state. (a)
It is very clearly settled, that the master, when abroad and in
the absence of the owner, may hypothecate the ship, freight, and
cargo, to raise money requisite for the completion of the voy-
age. (b) This authority is, however, limited to objects connected
wages, and it ceases after twelve days from the departure of the vessel from the port
at which she was when the debt was contracted, to some other port in the state, and
immediately on the vessel leaving the state. Every such vessel, unless she be under
seizure at the time, by virtue of process from an admiralty court of the United
States, or had been sold by order of such court, and the debt contracted prior to such
sale, may be attached and sold to satisfy the claim, together with all other claims of
the like kind, duly exhibited and verified. The proceedings under the process of
attachment, the sale of the vessel, and distribution of the proceeds are specially
detailed and prescribed. N. Y. Revised Statutes, ii. 493-500. In several of the other
states, the lien is equally extended, by statute, to repairs made in a home port. In
Louisiana, the workmen who repair vessels have a lien on them, though there be no
contract in writing; but the privilege is lost if they suffer the vessel to depart. Civil
Code, art. 2748.
(a) In the case of The United States v. Wilder, 3 Sumner, 308, it was considered
and held, that sovereignty did not necessarily imply an exemption of its property
from the process and jurisdiction of the courts of justice. Liens of material men,
salvors, wages, and for average, &c., exist against government property as well as
the property of individuals. There is no exception, in this respect, between public
property of a commercial character, and private property, either upon general prin-
ciples of justice or jure gentium. United States v. Wilder, 3 Sumner, 308,¹
(b) Lord Mansfield, in Wilkins v. Carmichael, Doug. 101; The Gratitudine, 3
C. Rob. 240; Sir Joseph Jekyl, in Watkinson v. Bernardiston, 2 P. Wms. 367; The
case of the Ship Fortitude, in the C. C. U. S. for Mass. decided in August, 1838,
3 Sumner, 228, contains a learned confirmation of the doctrine of the maritime
law, that the master of a ship has authority in a foreign port to procure supplies
and repairs necessary for the safety of the ship and performance of the voyage.
The necessaries, though not such as are absolutely indispensable, must be rea-
sonably fit and proper; and if the master has not suitable funds, or cannot
obtain money on the personal credit of the owner, he may raise it on bottomry.
The lender is bound to exercise a reasonable diligence to ascertain that the sup-
plies and repairs are necessary, or apparently so; and it is sufficient if he acts
with good faith; and so will the master if he acts with reasonable diligence, dis-
cretion, and skill. A regular survey is prima facie evidence of the necessity of the
repairs, so as to justify the master and the lender. The presumption is in favor of
the master and the lender; and the onus probandi to the contrary lies on the owner
1 A distinction has been taken between
the right of detention and the right of
process in rem as against the sovereign,
and the latter has been denied, where the
sovereign has taken possession of the res.
Briggs v. Life Boats, 11 Allen, 157, 183.
But when the sovereign has not yet taken
actual possession, and there is therefore
no danger of his possession being invaded
by the process of the court; or when the
sovereign voluntarily places the res in
the possession of the court, as in the case
of prize brought in for condemnation, the
lien may be enforced against the property.
The Davis, 10 Wall. 15; 6 Blatchf. 138;
The Siren, 7 Wall. 152. Cf. i. 297, n. 1.
[233]
* 172
[PART V.
OF PERSONAL PROPERTY.
·
with the voyage; and it must appear, in this case, as well as
when he binds the owner personally, that the advances were
made for repairs or supplies necessary for the voyage or the safety
of the ship, and that the repairs and supplies could not be pro-
cured upon reasonable terms, or with funds within the master's
control, or upon the credit of the owner, independent of the
hypothecation. The master's right exists only in cases of neces-
sity, and when he cannot otherwise procure the money, and has
no funds of the owner or of his own, which he can command,
and apply to the purpose. (c) He is to act with reasonable dis-
cretion, and is not absolutely bound to apply the money of others
in hand, except it belong to the owner, in preference to a resort
to bottomry; and it has been suggested by very high authority,
that there may be special cases in which the master may raise
money by hypothecation, even though he has his own money on
board. But if he should raise money by bottomry in such a
case, the admiralty will marshal the assets in favor of the shippers
of the cargo, so as to bring their property last into contribu-
tion. (d) The power of the master to charge the owners rela-
tive to the repairs and freight of the ship does not exist when
the owners are present, or when the ship is at their resi-
*172 dence. (e) 2 * But if only a minority of the owners are
who resists the bottomry bond. In that case, all the foreign civilians are examined
in relation to the degree of necessity that will justify the hypothecation.
(c) The Aurora, 1 Wheat. 102; The Ship Fortitude, supra. The necessity that
will justify the resort to a bottomry bond is more pressing and commanding than the
necessity which will justify the master in resort to an ordinary contract for repairs.
(d) The Ship Packet, 3 Mason, 255. The lien of the master for repairs made by
his means at a foreign port may exist without any express hypothecation. Ib.
American Insurance Company v. Coster, 3 Paige, 323. It is clearly the rule of the
maritime law, supported by the foreign authorities, that the owner of the cargo,
sold by the master for the necessities of the ship, has an implied lien upon the ship
for his indemnity, though there be no express hypothecation. The owners are liable
to pay the shippers the full amount of the proceeds of the ship appropriated by the
master, within the scope of his authority, for the use of the ship. Abbott on Ship-
ping, part 3, c. 5.
(e) Code de Commerce, art. 232; Ord. de la Marine, 2, tit. 1; Patton v. The
Randolph, Gilpin, 457. In the case of The Ship Lavinia v. Barclay, 1 Wash.
49, it was held that the captain could not raise money by hypothecation, when one
of the owners resided at the port. But in a home port, the master may bind the
owner for necessary and ordinary repairs and equipments under a presumed author-
ity. Webster v. Seekamp, 4 B. & Ald. 352. This is likewise the rule in the Scotch
law. 1 Bell's Comm. 524. It is held, that a port in a state in which the owner does
2 See 164, n. 1.
[234]
LECT. XLVI.]
* 172
OF PERSONAL PROPERTY.
present, or reside at the place, then the captain's power remains
good. (a)¹ It is incumbent upon the creditor who claims an
not reside is not a home port in the maritime law, as applicable to the United States;
and the master of a vessel may in such a port hypothecate the vessel by a bottomry
bond for necessary repairs, if the owner has no agent there, though he reside in
another state. Selden v. Hendrickson, 1 Brock. 396. Perhaps, however, the dis-
tinction between foreign and home ports, in relation to the master's power in these
cases, ought to rest not in relation to the government of the country, but to the
proximity or remoteness, the facility or difficulty of communication between the
place where the master acts and the place where the owner resides. This was
the doctrine declared in the case of Hooper v. Whitney, in the Commercial Court at
New Orleans, 1839, and it is reasonable and just; and the other rule would be very
unreasonable in many cases, as, for instance, between the city of New York and
Jersey City. [164, n. 1; 172, n. 1.] In Johns v. Simons, 2 Q. B. 425, held, that in a
home as well as in a foreign port, the master has an implied authority to pledge the
credit of the owner, and borrow money for the use of the ship, if the owner be
absent, and no reasonable communication with him. Eleven miles distant are not
sufficient to imply the power. Arthur v. Barton, 6 M. & W. 138, s. P.; Abbott on
Shipping, 5th Am. ed. Boston, 1846, 178, 179.
(a) Boulay-Paty, Cours de Droit Com. ii. 271.
1 Bottomry. As has already been said
138, n. 1, (164, n. 1, where the law which
governs the transaction is explained,) the
power of the master for most purposes is
only a branch of the general law of agency.
It is held to be absolutely necessary, that
he should communicate or attempt to
communicate with the owners of the ship
and cargo respectively before hypothecat-
ing them by a bottomry bond, if it is
reasonable to expect that he may obtain
an answer within a time not inconvenient
with reference to the circumstances of the
case. For it is on the ground that the
owners have no means of expressing their
wishes that the master is invested with
authority by a presumption of law arising
out of the necessity of the case. The
Panama, L. R. 3 P. C. 199; The Ham-
burg, 2 Moore P. C. N. s. 289, 320; Brown.
& Lush. 253; 10 Jur. N. s. 600; The Ori-
ental, 7 Moore P. C. 398, 410; The Bona-
parte, 8 Moore P. C. 459; affirming s. c.,
3 W. Rob. 298; The Olivier, Lush. 484;
The Lizzie, L. R. 2 Ad. & Ec. 254; The
Panama, ib. 390; Australasian S. N. Co.
v. Morse, L. R. 4 P. C. 222; 174, n. 1.
But the law was formerly less strict in
England, for as late as 1847 the Lord
Chancellor said there was no authority
for the doctrine; and there are American
cases which treat facility of communication
with the owners as no more than a cir-
cumstance for the jury to consider in
determining whether the loan was neces-
sary. Glascott v. Lang, 2 Phillips, 310,
321; The Royal Arch, Swabey, 269,
276; Stearns v. Doe, 12 Gray, 482. On
the other hand, if there be no power of
communication with them correspondent
with the necessity, the authority to borrow
money exists, although they are in the
same country. And in a great emergency,
if the master cannot raise the money on
the credit of the owners, he may raise it
on bottomry. The Oriental, 7 Moore P.
C. 398, 410. See Australasian S. N. Cor
v. Morse, L. R. 4 P. C. 222, 232.
In the absence of proof that repairs or
supplies could have been obtained on the
personal credit of the owners without bot-
tomry, a necessity for credit is established
by proving the necessity for repairs. But,
as has been said (164, n. 1), Chief Justice
Chase suggests in The Grapeshot, 9 Wall.
129, 140, that greater diligence is required
of the lender on bottomry than of the
material man in inquiry concerning the
[235]
*172
[PART V.
OF PERSONAL PROPERTY.
hypothecation, to prove the actual existence of the necessity,
or of an apparent necessity, of those things which gave rise to
his demand, and which are reasonably fit and proper for the ship,
or for the voyage, under the circumstances of the case; and he
must have acted, after he has used reasonable diligence, with
good faith in his inquiries, though he need not see to the actual
and bona fide application of the money. (b) The loan must not
exceed the necessity, and it must be made, and under circum-
stances to afford relief. (c) This power of the master to borrow
money on bottomry, and hypothecate the ship for the repayment,
may exist as well at the port of destination as at any other foreign
port, when the necessity for the exercise of the right becomes
manifest. (d) A doubt has been raised whether an hypotheca-
tion would be valid when made to the consignee of the owner.
The power in that instance would be very liable to abuse and
collusion, and the averment of the necessity and integrity of the
transaction ought to undergo a severer scrutiny, but the weight
of authority seems to be, that, under circumstances, a consignee
may take a bottomry bond. (e)
(b) The Ship Fortitude, C. C. U. S. for Mass., August, 1838, [3 Sumner, 228;]
Story on Agency, § 122; [ante, 164, n. 1.]
(c) Rucher v. Conyngham, Peters Adm. 295; Cupisino v. Perez, 2 Dallas, 194;
The Aurora, 1 Wheat. 96; Rocher v. Busher, 1 Stark. 27; Roccus, de Navibus, not. 23.
(d) Reade v. Commercial Insurance Company, 3 Johns. 352.
(e) See Rucher v. Conyngham, Peters Adm. 307; and Abbott on Shipping, 5th
Am. ed. Boston, 1846, 207. See infra, 361, to the S. P. to that point. The power given
to the master to raise money while abroad, for the necessities of the ship, is the most
dangerous form in which his authority can be exerted, and all the foreign authorities
necessity of repairs. He also lays it down
that the bottomry bondholder must give
evidence of actual necessity for repairs
and supplies; "and if the fact of ne-
cessity be left unproved, evidence is
also required of due inquiry, and of rea-
sonable grounds of belief that the neces-
sity was real and exigent." See The
Royal Arch, Swabey, 269, 275.
When a debt has already been con-
tracted for such supplies, which constitutes
a lien on the vessel or cargo, capable of
immediate enforcement in a foreign court,
the master may raise money to pay it by
pledging the credit of the owners, or by a
bottomry bond. Stearns v. Doe, 12 Gray,
482, 487; The Yuba, 4 Blatchf. 352; The
Karnak, L. R. 2 P. C. 505, 512, where
the necessity which will authorize an hy-
pothecation by the master is described;
ante, 164, n. 1. See also The Albert
Crosby, L. R. 3 Ad. & Ec. 37. It
seems that the master can pledge the
personal credit of the owners, and also
give a bottomry bond as collateral secu-
rity, provided the two things are done by
separate and distinct instruments. Stain-
bank v. Shepard, 13 C. B. 418, 443;
Willis v. Palmer, 7 C. B. n. s. 340, 360 ;
Bristow v. Whitmore, 4 De G. & J. 325,
334. But compare The Atlantic, Newb
514; post, 358.
[236]
LECT. XLVI.]
* 173
OF PERSONAL PROPERTY.
(7) Power to sell Ship or Cargo. The master in the *173
course of the voyage, and when it becomes necessary, may
also sell part of the cargo, to enable him to carry on the residue;
and he may hypothecate the whole of it, as well as the ship and
freight, for the attainment of the same object. (a) The law does
not fix any aliquot part or amount of cargo which the master
may sell; nor could any restraint of that kind be safely imposed,
The power must, generally speaking, be adequate to the occasion.
The authority of the master must necessarily increase in pro-
portion to the difficulties which he has to encounter. There is
this limitation only to the exercise of the power, that it cannot
extend to the entire cargo; for it cannot be presumed to be for
the interest of the shipper, that the whole should be sold, to
enable the ship to proceed empty to her port of destination.
The hypothecation of the whole may, however, be for the benefit
of the whole, because it may enable the whole to be conveyed
to the proper market. (b) This power of the master to pledge
•
have recommended and enforced the same precautions, and which have been univer-
sally adopted. (Casaregis, Disc. 71; Roccus, de Navibus, n. 23; Vinnius ad Peck.)
In Boyle v. Adam, in the Scotch Admiralty, in 1801, the rule that the lender, on
an hypothecation bond, was not bound to see to the application of the money, was
qualified in a case where the expenditure was enormous, and the master a weak man.
Bell's Comm. i. 529, note. The question respecting the lien of the master on the
ship, for necessary expenditures, has been extensively litigated and discussed in the
English and American courts, as has been already shown; and for a more full view
of some of the cases, see Abbott on Shipping, 5th Am. ed. Boston, 1846, 181–192.
The American editor of Abbott on Shipping, 5th ed. Boston, 1846, 200–202, has
industriously classified the most material cases in the American admiralty courts, on
the power of the master to borrow money on bottomry. (1.) It must be in cases of
necessity, where he has no other adequate funds in his power, and can obtain none
upon the personal credit of the owner. (2.) If the necessity existed, and the advances
were bona fide made, any subsequent misapplication of them by the master will not
vitiate the hypothecation. (3.) There must have been an inability to procure the
funds on the personal credit of the owner. (4.) The credit must have been given to
the ship as security. (5.) The master cannot give a bottomry bond for antecedent
advances, or for other debts due from the owner to his creditor. (6.) The master
cannot pledge the ship or freight for his own private interests, or hypothecate the shin
for the benefit of the cargo. (7.) The master may hypothecate the ship, although the
ship be hired upon charter, and the master has been appointed by the charterers.
(8.) The owner is not personally bound by the bottomry bond. (9.) A bottomry
bond may be given to pay off a former bottomry bond on the same foreign voyage.
(a) Story, J., in Pope v. Nickerson, 3 Story, 491, and the authorities, foreign and
domestic, there cited.
(b) The Gratitudine, 3 C. Rob. 240, 263; The United Insurance Company v. Scott,
1 Johns. 115; Freeman v. The East India Company, 5 B. & Ald. 617; Ross v. Ship
Active, 2 Wash. 226.
[237]
* 174
[PART V.
OF PERSONAL PROPERTY.
or sell the cargo is only to be exercised at an intermediate port, for
the prosecution of the voyage; and if he unduly breaks up the
voyage, he cannot sell any part of the cargo for repairs for a new
voyage, and the power is entirely gone. (c) In cases of capture
by an enemy or pirate, the master may redeem the vessel or
cargo by a ransom contract for money, or part of the cargo, and
the whole cargo, as well as the ship, will be bound by the con-
tract made under the authority of the necessity of the case. (d)
But if the voyage is broken up in the course of it by ungovern-
able circumstances, the master, in that case, may even sell the
ship or cargo, provided it be done in good faith, for the good of
all concerned, and in a case of supreme necessity, which
*174 sweeps all ordinary rules before it. (e)¹ The * merely acting
(c) Watt v. Potter, 2 Mason, 77.
(d) The Gratitudine, 3 C. Rob. 240; Maisonnaire v. Keating, 2 Gallison, 325. See,
also, supra, i. 104, 106.
(e) Hayman v. Molton, 5 Esp. 65; Milles v. Fletcher, Doug. 231; Idle v. The
Royal Exchange Assurance Company, 8 Taunt. 755; Freeman v. The East India
Company, 5 B. & Ald. 617; Cannan v. Meaburn, 1 Bing. 243; Robertson v. Clarke,
ib. 445; Fanny and Elmira, Edw. Adm. 117; Read v. Bonham, 3 Brod. & B. 147;
Soames v. Sugrue, 4 Carr. & P. 276, Tindal, C. J.; Scull v. Briddle, 2 Wash. 150;
The Schooner Tilton, 5 Mason, 475, 477; Jordan v. Warren Ins. Co., 1 Story, 342.
In the case of The American Insurance Company v. Center, 4 Wend. 45, it was held,
that in this country the master's right to sell was more extensive than in England;
for here, if there existed a technical total loss, and the master has reason to believe
the owner would elect to abandon, he might sell the ship. The English rule is more
strict, and it is the duty of the master to repair the vessel, unless there be an actual
total loss, or he has no means of repairing, and cannot procure any by the hypothe-
cation of the ship or cargo. The earlier English cases, as well as the foreign ordi-
nances, denied to the master the authority to sell the ship. 1 Sid. 452; 2 Ld. Raym.
934. But though such a power is not given to the master by the general maritime law,
yet the modern cases have, in some degree, yielded that power to the master in a case
of strong necessity. Abbott on Shipping, 5th Am. ed. Boston, 1846, 10-26. In this
last work, in the notes of the learned English and American editors, all the author-
ities on the question of the power of the master to sell the ship are collected and
critically examined. In the cases of Gordon v. The Mass. F. & M. Ins. Co., 2 Pick. 249,
and of Hall v. The Franklin Insurance Company, 9 Pick. 466, the strict doctrine of
the English law was asserted and maintained. The master's authority to sell the vessel
was confined to cases of extreme necessity, and where he acts with the most perfect
good faith for the interest of the owner, and when he has no opportunity to consult the
owner or insurer, and the necessity leaves him no alternative. This strict rule is the
one best supported by reason and authority. See, also, to the same point, the case
of the Brig Sarah Ann, 2 Sumner, 206, where it was held, that in a case of urgent
necessity, the master had a right to sell the vessel, as well on a home as on a foreign
shore, and whether the owner's residence be near or at a distance. Also the cases of
The New England Insurance Company v. The Sarah Ann, 13 Peters, 387; and of
1 172, n. 1; 174, n. 1.
[238]
LECT. XLVI.]
*174
OF PERSONAL PROPERTY.
in good faith, and for the interest of all concerned, is not
sufficient to exempt the sale of goods from the character of a
tortious conversion, for which the ship owner and the purchaser
are responsible, if the absolute necessity for the sale be not clearly
made out. Nor will the sanction of a vice-admiralty court aid the
sale when the requisite necessity was wanting. (a)¹ All the cases
are decided and peremptory, and upon the soundest principles, in
the call for that necessity. The master is employed only to navi-
gate the ship; and the sale of it is manifestly beyond his commis-
Robinson v. Commonwealth Ins. Co., 3 Sumner, 220; and of Hunter v. Parker, 7 M.
& W. 322, where the power of the master to sell, in a case of extreme necessity, and
acting in good faith, is fully sustained.
(a) Van Omeron v. Dowick, 2 Camp. 42; Morris v. Robinson, 3 B. & C. 196. The
French code allows the master to sell the ship in the single case of innavigability;
but by the ancient ordinances the prohibition was entire and absolute. The innavi-
gability of the ship ought, however, to be first ascertained and declared by the
local magistrate of the place; or, if in a foreign country, by the French consul.
Code de Commerce, art. 237; Ord. de la Marine, tit. Du Capitaine, art. 19; Valin's
Comm. i. 444; Pardessus, Droit Com. iii. 26; Boulay-Paty, ii. 85.
1 Sale by the Master.-See The Bonita,
Lush. 252; 30 L. J. N. s. Adm. 145.
The necessity is a question of fact, to
be in each case by the circumstances in
which the master is placed, and the perils
to which the property is exposed. The
cases sustain the strict rules of the text.
The Amelie, 6 Wall. 18, 27; s. c. 2 Cliff.
440; The Australia, 13 Moore P. C. 132,
144; Post v. Jones, 19 How. 150; Stephen-
son v. Piscataqua Ins. Co., 54 Me. 55, 77;
Prince v. Ocean Ins. Co., 40 Me. 481;
Brightman v. Eddy, 97 Mass. 478. Cases
as to cargo are Tronson v. Dent, 8 Moore P.
C. 419; Myers v. Baymore, 10 Penn. St.
114. And if it is possible to communicate
with the owners without a delay destruc-
tive of their interests, it is the master's
duty to do so, on the grounds already
stated in the case of bottomry, ante, 172,
n. 1. The Bonita, Lush. 252, 262; 30 L.
J. N. S. Adm. 145, 151; The Amelie, 6 Wall.
18, 27; Star of Hope, 9 Wall. 203, 237;
The Uniao Vencedora, otherwise The
Gipsy, 33 L. J. N. s. Adm. 195; Butler v.
Murray, 30 N. Y. 88, 99; Australasian St.
N. Co. v. Morse, L. R. 4 P. C. 222, 232.
The authority of the master to make
the sale may perhaps depend on the law
of the flag, on the same principle with the
cases cited ante, 164, n. 1. But it has
been held that a sale of a cargo, valid by
the law of the place where it was made,
bound the property (in a case where the
court below thought the parties concluded
by a judgment rendered in that place).
Cammell v. Sewell, 5 Hurlst. & N. 728;
3 id. 617. See, however, the remarks of
Willes, J., in Lloyd v. Guibert, ante, 164,
n. 1. And it has been intimated in an
earlier case that the validity of the sale of
a ship depends on the general maritime
law, a doctrine abandoned in the latest
common law cases cited ante, 164, n. 1,
so far as it affects them; Segredo, other-
wise Eliza Cornish, 17 Jur. 738; 1 Ec. &
Ad. (Spinks) 36, criticised also in Cam-
mell v. Sewell, but seemingly adhered to
in some admiralty cases. The Patria, L.
R. 3 Ad. & Ec. 436, 461.
If the sale is lawful, it devests all liens
from the ship and transfers them to the
proceeds. The Amelie, 6 Wall. 18; 2
Cliff. 440. But see The Catherine, 15
Jur. 231; 1 Eng. L. & Eq. 679; and cf.
Charles Amelia, L. R. 2 Ad. & Ec. 330.
[239]
* 176
[PART V.
OF PERSONAL PROPERTY.
*175
sion, and becomes the unauthorized act of a servant, disposing of
property which he was intrusted only to carry and convey.
The * master in such a case acts, virtute officii, as master.
His agency arises by operation of law, from the necessity
of the case, to prevent a total loss of the property, and the law
treats him as one capable of selling in his own name, but for the
benefit of the owner. He can give a sufficient title in his own
name, as being by operation of law substituted owner, pro hac vice.
This was the view of the subject taken in the case of the Schooner
Tilton, (a) and the doctrine appears to rest on clear and solid prin-
ciples of law and policy.
When part of the cargo is sold by the master at an intermediate
port, to raise money for the necessities of the voyage, the general
rule has been to value the goods at the clear price they would
have fetched at the port of destination. But in Richardson v.
Nourse, (b) the price which the goods actually sold for at the port
of necessity was adopted, and the court did not think that such a
criterion of value was clearly erroneous in point of law; and with
respect to these contracts of hypothecation for necessaries, made
by the master in a foreign port, it is the universal understanding
and rule, that they are to be made in the absence of the owner,
and not at his place of residence, where he may exercise his own
judgment. If the liens be created at different periods of the
voyage, and the value of the ship be insufficient to discharge
them all, the last loan is entitled to priority in payment, as hav-
ing been the means of saving the ship. The contract does not
transfer the property of the ship, but it gives the creditor a
privilege or claim upon it, which may be enforced with all the
expedition and efficacy of the admiralty process. (c)
(8) Duty to employ a Pilot. It is the duty of the master
engaged in a foreign trade to put his ship under the charge of a
pilot, both on his outward and homeward voyage, when
*176 *he is within the usual limits of the pilot's employ-
ment. (a) The pilot, while on board, has the exclusive
(a) 5 Mason, 481.
(b) 3 B. & Ald. 237.
(c) Abbott on Shipping, part 2, c. 3, secs. 20, 22; Chase, J., Blaine v. The Ship
Charles Carter, 4 Cranch, 328. See infra, 358, s. p.
(a) Law v. Hollingsworth, 7 T. R. 160; The William, 6 C. Rob. 316. But if the
master, at a foreign port, attempts to get a pilot, and fails, and then, in the exercise
of his best discretion, endeavors to navigate himself into port, and grounds, the
underwriter is not discharged, but remains liable for the injury. Phillips v. Headlam,
[240]
LECT. XLVI.]
* 176
OF PERSONAL PROPERTY.
control of the ship. He is considered as master pro hac vice, and
any loss or injury be sustained in the navigation of the vessel
if
2 B. & Ad. 380. If he attempts to enter a port without a pilot, and without endeav
ors to procure one, and a loss happens, the underwriters would not be responsible. It
would be the fault of the master, and the owners would be liable. But if the loss
happens at a point beyond which the pilot's service was necessary, it would be
otherwise. M'Millan v. U. Ins. Co., Rice (S.C.), 248. A vessel is not seaworthy within
the implied warranty, if she proceeds without one in navigating a river, where it is
the custom to take on board a licensed pilot. If there be no such custom, the cap-
tain, mate, or other person, possessing the requisite skill, may act as pilot. Keeler
v. Fireman's Ins. Co., 3 Hill, 250. In the case of Bolton and others v. American
Insurance Company, tried before Ch. J. Jones, in the Superior Court of New York,
in November, 1835, it was held, that in every well appointed port, where pilots were
to be had, a vessel arriving upon pilot ground was bound to take a pilot, and the
ground was to be approached carefully; and if in the night, the master was bound to
hold out a light for a pilot, and to wait a reasonable time for one, and to approach one
if he can do it with safety. If he attempted to enter the port without a pilot, or
steered negligently or rashly in approaching the ground where it was unsafe to navi-
gate without a pilot, and damages ensued, the underwriters would not be responsible
for them. The duty of the master is the more imperative on the approach to New
York, which is of dangerous access, as the channel is only a mile and a half wide
between the bars, and the coast is lined with shifting sand-bars. In cases of great
danger, as in the case of a storm, if the captain cannot wait with safety for a pilot,
he must come in without one. The system of pilotage in New York is excellent.
Branch pilots were formerly appointed by the governor and senate, and had to per-
form an apprenticeship of five years before they could become deputy pilots, and
three years before they became branch or licensed pilots. They underwent examina-
tion before the wardens of the port, and gave security. See Laws of New York,
February 19, 1819, c. 18, and particularly secs. 7 and 12; April 12, 1822, c. 196; April
16, 1830, c. 207; March 30, 1831, c. 93. In 1837, the statute laws of New York, rela-
tive to pilots, were redigested and essentially amended, and all former statutes re-
pealed. A board of five commissioners was established for licensing, regulating, and
governing pilots and deputy pilots, and they were clothed with large powers. Appli-
cants for license were to be examined before the commissioners as to their fitness,
skill, and character, and they were to enter into recognizances with sureties for the
faithful execution of their trust. Laws of New York, 1837, c. 184. Further regula-
tions were made, and the mode and rate of compensation for pilotage established, by
the act of New York of April 12, 1838, c. 197. Fourteen pilots are directed to be
appointed by the governor and senate, upon the recommendation of the board of
wardens, for the channel of the East River, called Hell-gate. N. Y. R. S. 3d ed.
i. 119. In England, the statute of 6 Geo. IV. c. 125, consolidated all the prior Eng-
lish laws, with respect to the licensing and employment of pilots; and an abridged
view of its provisions is given in M'Culloch's Com. Dict. tit. Pilots. In Massachusetts,
the law of pilotage is as well and carefully digested as anywhere else. The governor
appoints the pilots for the several harbors and coasts of the state, under certain
exceptions. Rev. Sts. c. 32; Smith v. Swift, 8 Met. 332. Every branch pilot may
nominate his deputy pilots for the approbation of the governor, and they all give
bond, with sureties, for their faithfulness. Revised Statutes of Massachusetts, part
1, tit. 12, c. 32. Every Boston pilot who offers his services to an inward bound ves-
sel, before she has passed a designated line, and they are not accepted, is neverthe-
VOL. III.
16
[241]
* 176
[PART V.
OF PERSONAL PROPERTY.
while under the charge of the pilot, he is answerable as strictly
as if he were a common carrier, for his default, negligence, or
less entitled to full fees of pilotage. The master may pilot his own vessel into
Boston harbor, but it is at the peril of the owners, and he must pay the pilotage fees,
if a pilot seasonably offers his services. But, in such case, if he employs a person
not authorized as a pilot, such person subjects himself to a penalty. Commonwealth
v. Ricketson, 5 Met. 412; Martin v. Hilton, 9 Met. 371. The Revised Statutes of
Massachusetts, of 1836, c. 32, contain their pilot regulations. The governor and
council appoint the pilots for the state, with the exception of pilots for the harbors
and ports of Boston, New Bedford, and Fairhaven, where special provisions for those
harbors are made. The case of Martin v. Hilton contains a well-digested view of the
statute law of Massachusetts on the subject. The pilot regulations in the other great
commercial states are doubtless of the same efficient character, and the general
commercial law on the subject applies equally to all the states. Though Congress
may establish a system of pilotage in ports and harbors within the United States,
and give the district courts jurisdiction of the same, yet they have not done it. In
Georgia pilots are licensed by a permanent board of commissioners, and they are
required to give bonds, with sureties, for the due execution of their duty, and to
take a special oath in relation to the same; and the commissioners are to settle all
disputes between pilots and masters of vessels, and with power to revoke licenses for
incompetency, negligence, or misbehavior. Prince's Dig. 1837, 759; Hotchkiss's
Code of Georgia Statute Laws, 1845, 279. The only congressional provision on
the subject is contained in the act of Congress of August 7, 1789, c. 9, sec. 4, which
still remains in force, and in which it is declared, that "All pilots in the bays, inlets,
rivers, harbors, and ports of the United States, shall continue to be regulated in con-
formity with the existing laws of the states respectively wherein such pilots may be,
or with such laws as the states may respectively thereafter enact for the purpose,
until further legislative provision shall be made by Congress." The police regula-
tions of ports and harbors, in respect to pilots, are left by Congress to the states.
By a resolution of the legislature of New York, on the 10th of March, 1846, the
members of Congress from the state were requested to endeavor to procure an act of
Congress to regulate and establish the pilot system of the United States, and to give
to each state the power to pass laws for the appointment and regulation of the pilots
for themselves. Cognizance of the cases under state laws as to pilotage belongs at
present to state courts. Marshall, C. J., in Gibbons v. Ogden, 9 Wheat. 207; The
Schooner Wave v. Hyer, on appeal to the Circuit Court of the United States for the
Southern District of New York, 2 Paine, [131]; Low v. Commissioners of Pilotage,
R. M. Charlton (Ga.) 314. But in the case of Hobart v. Drogan, 10 Peters, 108, it
was held, that suits for pilotage on the high seas and on tide waters were within the
admiralty jurisdiction, and the state courts had only concurrent jurisdiction with the
district courts in suits for pilotage. The act of Congress of 2d of March, 1837, c. 22,
declared that it should be lawful for the master or commander of any vessel, coming
into or going out of any port situate upon the waters which are the boundary between
two states, to employ any pilot duly licensed or authorized by the laws of either state
bounded upon said waters. Concurrently in point of time with this act of Congress,
the statute of New Jersey was passed for establishing and regulating pilots for the
ports of that state, within Sandy Hook. Elmer's Dig. 400. The ordinance of the
city of Charleston, in S. C., of 1842, founded on state authority, respecting pilotage,
declared that every coaster, or commander of any vessel, bearing towards the coast
or harbor of Charleston, should pay a pilot-fee to the first pilot who should offer to
[242]
LECT. XLVI.]
* 176
OF PERSONAL PROPERTY.
unskilfulness; and the owner would also be responsible to the
party injured for the act of the pilot, as being the act of his
agent. (b) Though some doubt had been raised by the dictum
of Ch. J. Mansfield, in Bowcher v. Noidstrom, (c) yet the weight
of authority and the better reason is, that the master, in such a
case, would not be responsible as master, though on board, pro-
vided the crew acted in regular obedience to the pilot. (d)
go on board and take charge of the vessel, and the pilot-fee should be due and recov-
erable, even on refusal to receive on board a licensed pilot. All steamboats carrying
United States mails, and all vessels trading between any of the ports of South Carolina,
and wholly owned in the state, were declared to be exempted from pilotage. But this
discrimination between coasters wholly owned in the state, and coasters owned in
whole or in part in other states, and employed with the Carolina coasters, was
declared void by the Court of Appeals, in the case of Chapman v. Miller, 2 Speer
(S. C.), 769. It was in conflict with the act of Congress of 1793, regulating the
coasting trade, and giving equal privileges to licensed coasting vessels of every state.
The regulation of the coasting trade was a power vested exclusively in Congress, as
being a regulation of commerce and navigation; and this doctrine was fully declared
in Gibbons v. Ogden, in 9 Wheat. 1. The decision in South Carolina is perfectly
sound and conclusive.
(b) Bussy v. Donaldson, 4 Dallas, 206; Huggett v. Montgomery, 5 Bos. & P.
446; Yates v. Brown, 8 Pick. 23; Pilot-boat Washington v. Ship Saluda, U. S. Dis-
trict Court, S. C., April, 1831; Williamson v. Price, 16 Martin (La.), 399; the Nep-
tune the 2d, 1 Dods. 467. But in the case of the Agricola, 2 Wm. Rob. 10, it was
considered (and certainly with good reason), that if the master of a vessel be bound
to take a pilot, and a collision arises from the fault of the pilot, the owners are not
responsible for his conduct. By the English statute law, as declared by their adju-
dications, the master or owner of a vessel trading to or from the port of Liverpool,
is not answerable for damages occasioned by the fault of the pilot. Carruthers v.
Sydebotham, 4 Maule & S. 77; The Maria, 1 Wm. Rob. 95; The Protector, ib. 45.
(c) 1 Taunt. 568.
(d) In the case of the Portsmouth, 6 C. Rob. 317, n.; Snell v. Rich, 1 Johns. 305.
By the statute of 6 Geo. IV. c. 125, sec. 53, owners and masters of ships are exempted
whether the owner would be liable (7
Wall. 68, 70) on grounds stated ante, 138,
n. 1. See, also, 218, n. 1.
1 Compulsory Pilot. — The ship has been
held liable in such cases. The China, 7
Wall. 53; The Carolus, 2 Curtis, 69;
Smith v. The Creole, 2 Wall. Jr. 485. In
the latter case the pilot was employed
under a statute which certainly seemed
to make it a legal duty to take him on
board, although the court treated, it as
optional, on the ground that what the
statute called the "penalty" of paying
half pilotage in case of failure to do so
was really nothing more than the assess-
ment of a tax for the support of the sys-
tem. (Ante, i. 467, n. 1.) But perhaps
The China, sup., leaves it still doubtful
In England it would seem that apart
from statute the tendency is to exonerate
the vessel. The Maria, 1 Wm. Rob. 95;
The Annapolis, Johanna Stoll, Lush. 295,
312; post, 218, n. 1; The Halley, L. R. 2 P.
C. 193, 201, 202, stated in a subsequent
note, 232, n. 1 (c).
For other statutory exemptions besides
those mentioned in note (d), when the
employment of the pilot is compulsory,
see the Merchant Shipping Act, 1854 (17
& 18 Vict. c. 104), § 388. But in order
[243]
* 177
[PART V.
OF PERSONAL PROPERTY.
The mate is the next
(9) Authority and Duty of the Mate.
officer to the master on board, and upon his death or absence, the
mate succeeds, virtute officii, to the care of the ship and the gov-
ernment and management of the crew. He does not cease to be
mate in such cases, but has thrown upon him cumulatively the
duties of master. He is quasi master, with the same general
powers and responsibilities, pro hac vice, and with the preserva-
tion of his character and privileges as mate. He may sue in the
admiralty for his wages as mate, and is entitled in that character to
be cured, if sick, at the expense of the ship. (e) The master, and
even the consignees, may appoint a substitute in a foreign port, in
cases of necessity. (f) Even a supercargo, in cases of necessity,
and acting with reasonable discretion, may bind the owner. (g)
2. Of the Rights and Duties of Seamen. We come next to treat
of the laws applicable to seamen; and it will appear, for obvious
reasons, that in the codes of all commercial nations they are
objects of great solicitude and of paternal care. They are usually
a heedless, ignorant, audacious, but most useful class of men,
exposed to constant hardships, perils, and oppression. From the
nature of their employment, and their "home on the deep," they
are necessarily excluded, in a great degree, from the benefits of
civilization, and the comforts and charities of domestic life. Upon
their own element they are habitually buffeted by winds and
waves, and wrestling with tempests; and in time of war
*177 they * are exposed to the still fiercer elements of the human
passions. In port they are the ready and the dreadful
victims of temptation, fraud, and vice. (a) It becomes, therefore,
from liability for any damage arising from the want of a licensed pilot, unless the
want arose from a refusal to take one on board, or from wilful neglect in not using
all due means to take one on board who may offer. He is equally exempted from the
responsibility for the incapacity or defaults of the pilot.
(e) Read v. Chapman, Str. 937; Orne v. Townsend, 4 Mason, 548; The Brig George,
1 Sumner, 151; United States v. Taylor, 2 Sumner, 585; U. S. v. Roberts, 2 N. Y.
Leg. Obs. 99.
(ƒ) Pothier, Charte-Partie, n. 49; The Alexander, 1 Dods. 278.
(g) Forrestier v. Bordman, 1 Story, 43.
(a) The recklessness with which sailors dissipate their wages, and the facility with
which they are cheated out of them, are proverbial; and those persons who have the
to entitle the owners to the benefit of the
exemption from liability provided by the
English statutes, it is not enough for them
to prove that there was negligence on the
part of the pilot; they must prove that
the damage for which it is sought to make
them liable was occasioned exclusively by
his default. The Iona, L. R. 1 P. C. 426 ;
The Minna, L. R. 2 Ad. & Ec. 97.
[244]
LECT. XLVI.]
* 177
OF PERSONAL PROPERTY.
a very interesting topic of inquiry, to see what protection the
laws have thrown around such a houseless and helpless race of
beings, and what special provisions have been made for their
security and indemnity.
(1) Shipping Articles. The seamen employed in the mer-
chant service are made subject to special regulations, prescribed
by acts of Congress for their government and protection. (b)
Shipping articles are contracts in writing, or in print, declaring
the voyage and the term of time for which the seamen are
shipped, and the rate of wages, and when the seamen are to
render themselves on board; and the articles are to be signed by
every seaman or mariner, on all voyages from the United States
to a foreign port, and, in certain cases, to a port in another state,
other than an adjoining one. (c) If there be no such contract,
the master is bound to pay to every seaman who performs the
voyage the highest wages given at the port for a similar voyage,
within the three next preceding months, besides forfeiting for
every seaman a penalty of twenty dollars. The seamen are made
subject to forfeitures if they do not render themselves on board
according to the contract, or if they desert the service; and they are
liable to summary imprisonment for desertion, and to be detained
until the ship be ready to sail. (d) If the mate and a majority
superintendence of marine hospitals well know how severely and extensively sailors
are afflicted, beyond all other classes of men, by those odious diseases which so
terribly chastise licentious desire. Such a scourge is far worse to them than the
storms and the monsters of the ocean; than either the præcipitem Africum decertantem
aquilonibus, the rabiem noti, the monstra natantia, or the infames scopulos, acroceraunia.
(b) Acts of the United States, 20th July, 1790, c. 29; 28th May, 1796, c. 36; 16th
July, 1798, c. 94; 3d May, 1802, c. 51; 28th February, 1803; 2d March, 1805, c. 88;
3d March, 1813, c. 184; 19th June, 1813, c. 2; 2d March, 1819, c. 170; 3d March,
1829, c. 202; 20th July, 1840, c. 23.
(c) A foreign voyage, in the language of trade and commerce, means a voyage to
some port or place within the territory of a foreign nation. The terminus of the voy-
age settles the description. In this view neither fishing nor whaling voyages are
strictly foreign voyages. This is the sense in which foreign voyages are under-
stood in the Duties Collection Act of 1799, c. 128, and in the acts of 1790, c. 56,
and of 1813, c. 2, relative to shipping articles; and the above act of 1799 still
constitutes the leading statute to regulate our commercial intercourse with foreign
nations. Taber v. United States, C. C. U. S. for Mass. October, 1839; 1 Story, 1. The
shipping contract in the whale fishery is universally reduced to writing, though such
voyages are not in terms within the statute. The New Bedford whalemen's shipping
paper, Mr. Curtis says, (Treatise on the Rights and Duties of Merchant Seamen, 1841,
p. 60,) is the best constructed instrument of the kind in use in the United States.
(d) The authority given by the act of Congress of 20th July, 1790, to arrest
[245]
* 178
[PART V.
OF PERSONAL PROPERTY.
of the crew, after the voyage has begun, but before the vessel has
left the land, deem the vessel unsafe, or not duly provided,
*178 and * shall require an examination of the ship, the master
must proceed to or stop at the nearest or most convenient
port, where an inquiry is to be made, and the master and crew
must conform to the judgment of the experienced persons selected
· by the district judge or a justice of the peace. If the complaint
shall appear to have been without foundation, the expenses and
reasonable damages, to be ascertained by the judge or justice, are
to be deducted from the wages of the seamen. But if the vessel
be found or made seaworthy, and the seamen shall refuse to pro-
ceed on the voyage, they are subjected to imprisonment until
they pay double the advance made to them on the shipping con-
tract. (a)¹ Fishermen engaged in the fisheries are liable to the
deserters by a magistrate's warrant, does not supersede the authority which the mas-
ter has under the general maritime law to retake a deserting seaman and confine him
on board. Turner's Case, Ware, 83.
(a) Act of Congress, July 20th, 1790, c. 29, secs. 1, 2, 3, 5, 7. The act of Congress
of 1829, c. 202, provided for the apprehension of deserters from certain foreign ves-
sels in the ports of the United States. The act of Congress of July 20th, 1840, c. 23,
authorizes an examination by the consul or commercial agent in a foreign port, into
the complaints of the mariners, and a copy of the shipping articles shall be produced
by the master to the consul, and if the complaints are well founded, he may discharge
the seamen on terms; and it is made the duty of the consuls to reclaim deserters by
every means within their power, and lend their aid to the local authorities for that
purpose. They are, upon complaint, to examine into the seaworthiness of the vessel
when she left home, and, if found deficient, they may discharge the crew with addi-
tional wages, except in cases free from neglect or blame. This act has much enlarged
the discretionary power of consuls and commercial agents in foreign ports. In the
state of Missouri, there are statute provisions for the regulation of boatmen on the
navigable waters of that state, their contracts, their duties, their protection, and
1 Seaworthiness. See, also, the act of
July 29, 1850, ch. 27, § 6, 9 U. S. St. at
L. 441, amending the act of 1840 referred
to in note (a); and Jordan v. Williams, 1
Curtis, 69.
If seamen have reason to believe, and
do believe, a vessel is unseaworthy before
the voyage is begun, they may lawfully
refuse to go to sea in her. But they must
prove these facts. United States v. Nye,
2 Curtis, 225; The Moslem, Olcott Adm.
289, 297. See The Hibernia, 1 Sprague,
78; United States v. Givings, ib. 75; Tur-
ner v. Owen, 3 F. & F. 176; post, 199, n. 1.
It has been held that the law does not im-
ply a warranty that the vessel is seaworthy `
from the relation of ship owner and sea-
man, on which the latter can sue without
showing knowledge or deceit on the part
of the owners, or an express contract
Couch v. Steel, 3 El. & Bl. 402. But this
is inconsistent with the language of some
American cases; Dixon v. The Cyrus, 2
Pet. Adm. 407, 411; Rice v. The Polly
and Kitty, ib. 420, 421; Savary v Clem-
ents, 8 Gray, 155; and of Sir A. Cockburn
at nisi prius. Turner v. Owen, 3 F. & F
176; post, 186, n. 1.
[246]
LECT. XLVI.]
* 179
OF PERSONAL PROPERTY.
like penalties for desertion; and the fishing contract must be in
writing, signed by the shipper and the fishermen, and counter-
signed by the owner. (b) The articles do not determine exclu-
sively who are the owners, and the seamen may prove, by other
documents, the real and responsible owners. The object of the
articles is to place the crew of a fishing vessel upon a footing with
seamen in the merchant service, and to make them liable to the
same restrictions, and entitled to the same remedies. (c) Pro-
vision is made for the prompt recovery of seamen's wages, of
which one third is due at every port at which the vessel shall
unlade and deliver her cargo, before the voyage be ended; and
at the end of the voyage, the seamen may proceed in the district
court, by admiralty process, against the ship, if the wages be not
paid within ten days after they are discharged. (d) The seamen
having like cause of complaint may all join in one suit, and they
may proceed against the vessel within the ten days, if she be
about to proceed to sea; but this remedy, in rem, does not
deprive the seamen of their remedy at common law for
the *recovery of their wages. (a) The statutes further *179
provide for the safety and comfort of the seamen, by requir-
ing that every ship belonging to a citizen of the United States,
of the burden of one hundred and fifty tons or upwards, navi-
gated by ten or more persons, and bound to a foreign port, or
of the burden of seventy tons or upwards, and navigated with
six or more persons, and bound from the United States to any
port in the West Indies, shall be provided with a medicine chest,
properly supplied with fresh and sound medicines; and if bound
on a voyage across the Atlantic Ocean, with requisite stores of
the remedies against them, as in analogous cases of seamen on the high seas. Revised
Statutes of Missouri, 1835, 99.
(b) Act of Congress, June 19, 1813, c. 2, secs. 1, 2.
(c) Wait v. Gibbs, 4 Pick. 298.
(d) The voyage is ended when the vessel has arrived at her last port of destination
and is safely moored at the wharf. But the seamen may, by the terms of the contract
or the usage of the port, be bound to remain by the vessel after the voyage is ended,
and assist in discharging the cargo, and their wages will be continued until that takes
place. The Mary, Ware, 454.
(a) Act of Congress, July 20th, 1790, c. 29, sec. 6. The statute of 59 Geo. III.
c. 58, provided, also, an expeditious remedy for the recovery of seamen's wages, by
allowing them to apply to the summary jurisdiction of a justice of the peace when
the wages do not exceed £20.
[247]
* 179
[PART V.
OF PERSONAL PROPERTY.
water, and salted meat, and wholesome ship-bread, well secured
under deck. (b) 1
(2) Charitable Relief.—It is further provided by statute, for
the just and benevolent purpose of affording certain and perma-
nent relief to sick and disabled seamen, that a fund be raised out
of their wages, earned on board of any vessel of the United States,
and be paid by the master to the collector of the port, on entry
from a foreign port, at the rate of twenty cents per month for
every seaman. The like assessment is to be made and paid on
the new enrolment or license for carrying on the coasting trade,
and also by persons navigating boats and rafts on the Mississippi.
The moneys so raised are to be expended for the temporary relief
and maintenance of sick and disabled seamen, in hospitals or other
proper institutions established for such purposes; and the surplus
moneys, when sufficiently accumulated, shall be applied to the
erection of marine hospitals, for the accommodation of sick and
disabled seamen. These hospitals, as far as it can be done with
(b) Act of Congress, July 20th, 1790, c. 56, secs. 8, 9, and ib. March 2d, 1805,
c. 88; act of Congress, March 2d, 1819, c. 170. The act of Congress of July 20th,
1790, sec. 9, gives to the seamen double wages for every day that they are put
on short allowance, and the vessel has not the quantity and quality of provisions
required. The British statute of 43 Geo. III. c. 56, has another very humane pro-
vision for the health and security of the passengers and crew. It provided that no
British ship should clear out from a British port with a greater number of persons
on board, including children and the crew, than in the proportion of one person for
every two tons of the burden of the ship, as appearing in the certificate of registry,
or of that part of the ship unladen. A penalty of £50 is forfeited for each extra
person.
1 Further Legislation.
A seaman cannot maintain an action for
extra wages, under the act mentioned in
note (b), on the fact alone that he was put
on short allowance. It is equally an es-
sential ingredient that the ship had not on
board the stores required by law when
she sailed on the voyage. The Elizabeth
v. Rickers, 2 Paine, 291; Ferrara v. The
Talent, Crabbe, 216. Compare The Childe
Harold, Olcott Adm. 275, with The Eliza-
beth Frith, Bl. & How. 195. See the Mer-
chant Shipping Act, 1854, 17 & 18 Vict. c.
104, § 221 et seq.; The Josephine, Swabey,
152.
As to passengers in vessels propelled by
steam, see act of Aug. 30, 1852, ch. 106,
especially § 30, 10 St. at L. 61. See, also,
act of March 3, 1855, ch. 213, 10 St. at L.
715, regulating the carriage of passengers
in vessels generally. (Compare the Pas-
sengers Act, 1855, 18 & 19 Vict. c. 119,
amended in 1863 by 26 & 27 Vict. c. 51.)
Compare act of Feb. 19, 1862, ch. 27, § 5,
12 St. at L. 341, with act of March 3,
1855, § 19.
The act of March 24, 1860, ch. 8, 12
St. at L. 3, punishes seduction of female
passengers by any person employed on
board any vessel of the United States;
and forfeits such persons' wages to the
ship for frequenting the part of the vessel
assigned to emigrant passengers without
orders. See 160, n. 1.
[248]
LECT. XLVI.]
*180
OF PERSONAL PROPERTY.
convenience, are to receive sick foreign seamen, on a charge
of seventy-five cents *per day, to be paid by the master of *180
the foreign vessel. (a) And to relieve American seamen
who may be found destitute in foreign places, and as evidence of
the constant and paternal solicitude of the United States for the
preservation and protection of their seamen abroad, it is made
the duty of the American consuls and commercial agents to pro-
vide for those who may be found destitute within their consular
districts, and for their passages to some port in the United States,
in a reasonable manner, at the expense of the United States; and
American vessels are bound to take such seamen on board, at the
request of the consul, but not exceeding two men to every
hundred tons burden of the ship, and transport them to the
United States on such terms, not exceeding ten dollars for each
person, as may be agreed on. So if an American vessel be sold
in a foreign port, and her company discharged, or a seaman be
discharged with his consent, the master must pay to the consul or
commercial agent at the place, three months' pay over and above
the wages then due, for every such seaman, two thirds of which
is to be paid over to every seaman so discharged, upon his engage-
ment on board of any vessel to return to the United States; and
the other third to be retained for the purpose of creating a fund
for the maintenance and return of destitute American seamen in
such foreign port. (b) 1
The act of Congress of March 3, 1813, c. 184, declared that no
seaman who was not a native or naturalized citizen of the United
States, should be employed on board of any public or private ves-
sel of the United States. But the provision against the employ-
ment of foreign seamen is probably without any efficacy, for it
(a) Acts of Congress, July 16th, 1798, March 2d, 1799, and May 3d, 1802. By
the act of March 1, 1843, c. 49, the provision in the act of 1798 for hospital money is
extended to the masters, owners, and seamen of registered vessels employed in carry-
ing on the coasting trade.
(b) Act of Congress, February 28th, 1803, c. 62. The three months' extra wages,
under the act of Congress, applies only to a voluntary sale of the vessel in a foreign
port, and not when the sale is rendered necessary by shipwreck. The Dawn, Ware,
485.
1 See, also, the act of July 20, 1840,
ch. 48, § 9, 5 St. at L. 395. The Atlantic,
Abbott Adm. 451; Tingle v. Tucker, ib.
519; Miner v. Harbeck, ib. 546.
When a seaman is disabled and neces-
10
sarily left abroad, the payment by the mas-
ter of three months' extra wages does not
exonerate the vessel from the obligation
to pay for his return. Brunent v. Taber
1 Sprague, 243.
[249]
* 181
[PART V.
OF PERSONAL PROPERTY.
applies only to those nations who shall, in like manner, have pro-
hibited the employment of American seamen. There is no other
act of Congress which prohibits the employment of foreign seamen
in our ships; and while foreigners are employed as seamen in our
merchant ships, they are deemed mariners and seamen within the
act of Congress of 1803, c. 62, respecting provision for them by
consuls when destitute abroad. (c) And in the navigation act
of 1st March, 1817, c. 204, a discrimination is made in favor of
American citizens as seamen, relative to the fishing bounty and
to foreign tonnage.
Greenwich Hospital, in England, is a noble asylum for
*181 decayed * and disabled seamen belonging to the royal
navy; but another national establishment was wanting
for seamen maimed or disabled by sickness or accidental misfor-
tunes, or worn out by age, in the merchant service.
This was
provided for by the statute of 20 Geo. II. c. 38, which created a
corporation attached to Greenwich Hospital, and laid the founda-
tions of a magnificent charity, with liberal, careful, and minute
provisions, some of which have been copied into our own stat-
utes; and it is sustained by an assessment similar to our own, of
sixpence sterling per month, out of seamen's wages.
In one
respect, the English charity is much broader than ours, for it
reaches to the poor widow and infant children of every seaman
who perishes in the service, and who shall be found to be proper
objects of charity. (a)
(c) Matthews v. Offley, 3 Sumner, 115.
(a) The contributions from merchant ships to the trustees of Greenwich Hospital,
in 1828 and 1829, exceeded £20,000 sterling a year, and yet there was not on the
establishment a single individual who had been exclusively employed in the merchant
service. The statute of 4 and 5 Wm. IV. c. 34 directed, therefore, that the contribu-
tion of sixpence per month by seamen in the merchant service should cease from 1st
January, 1835, and that £20,000 a year should be advanced from the consolidated
fund to the hospital to make good the deficiency. The act of Wm. IV. repealed the
statute of 20 George II., except so far as it related to the establishment of the cor-
poration; and it repealed so much of the act of 37 Geo. III. c. 73 as related to the
wages of seamen dying while employed in the West India trade, and it introduced a
new system. This system provides contributions for a new fund; and every master
and owner of a British merchant ship or vessel is to pay 2s. per month, and every
seaman serving on board such ship or vessel, 1s. per month; and the institution is to
provide in its hospital for seamen becoming incapable by sickness, wounds, or other
accidental misfortunes, or worn out by age, and in certain cases for their widows and
children. The masters and owners, and their widows and children, being objects of
charity as aforesaid, are to partake of the bounty; the contributions to the fund are
estimated to amount hereafter to £50,000 sterling a year. M'Culloch's Com. Dict.
[250]
LECT. XLVI.]
*182
OF PERSONAL PROPERTY.
(3) Punishments. With respect to the behavior of the mas-
ter and seamen, and the discipline on board of merchant ships,
it is held, that the master is personally responsible in damages
for any injury or loss to the ship or cargo by reason of his negli-
gence or misconduct. Being responsible over to others for his
conduct as master, the law, as well on that account as from the
necessity of the case, has intrusted him with great authority
over the mariners on board. Such authority is requisite to the
safe navigation of the ship, and the preservation of good order
and discipline. He may imprison, and also inflict reasonable cor-
poral punishment upon a seaman, for disobedience to reasonable
commands, or for disorderly, riotous, or insolent conduct;
and his authority, in that respect, is analogous to * that of *182
a master on land over his apprentice or scholar. (a) The
tit. Seamen. A summary of the acts of Congress for the protection and relief of
seamen, and the decisions of the federal courts in relation thereto, is given in the notes
to Abbott on Shipping, 5th Am. ed. Boston, 1846, pp. 257 to 264.
The Athenians had humane institutions for the relief and support of disabled sol-
diers, and which afterwards embraced the aged, the sick, the blind, and infirm, of
every description; and this charitable provision has been attributed to Solon. St.
John's History of the Manners and Customs of Ancient Greece, iii. 69–74. The
ancient Romans never provided any asylum for the poor. Humanity was no part of
their national character. Its cultivation, as a public duty, is one of the inestimable
blessings of the introduction of Christianity. Constantine, the first Christian Cæsar,
founded the first public system of relief of pauperism. There did not exist in the
Roman legislation any provision for the poor, unless, says Hugo, (History of the
Roman Law, sec. 154,) we may consider the law of the twelve tables, which regu-
lated funeral expenses, to have been introduced in their favor, as a means to prevent
the ruin of families. But there was a provision in favor of the Roman soldiers, which
shows the wise policy, if not humanity, of the Roman discipline. Half of the dona-
tives of the soldiers was withdrawn and placed in security in camp for their use, to
prevent its being wasted in extravagance and debauchery. Vegetius considered it a
divine institution. There was likewise a contribution by each soldier, to a common
fund in camp, to defray his funeral expenses. Vegetius, de Re Militari, 1. 2, c. 20.
Chelsea Hospital, in England, for the reception of sick and superannuated soldiers,
has infinitely better pretensions than the Roman provision to be regarded as divinitus
institutum.
(a) Molloy, b. 2, c. 3, sec. 12; Thorne v. White, Peters Adm. 168; Rice v. The
Polly and Kitty, ib. 420; The United States v. Smith, 3 Wash. 525; Michaelson v.
Denison, 3 Day, 294; Comersford v. Baker, before Lord Stowell, June, 1825; The
United States v. Dewey, New York Circuit, June, 1828; Lord Stowell, in the case of
the Agincourt, 1 Hagg. Adm. 272; The Lowther Castle, ib. 384; The United States
v. Freeman, 4 Mason, 512; Turner's Case, 1 Ware, 83; Butler v. McLellan, District
Court of Maine, ib. 220; Bangs v. Little, ib. 506; Carleton v. Davis, id. N. Y. Legal
Observer, iii. 86; Fuller v. Colby, C. C. U. S. Mass. 1846, [3 Woodb. & M. 1.] Though
the maritime codes of continental Europe, such as the Consolato, the laws of Oleron,
of Wisbuy, of the Hanse Towns, and of Denmark, carefully avoid the direct mention of
[ 251 ]
*182
[PART V.
OF PERSONAL PROPERTY.
books unite in the lawfulness and necessity of the power. With-
out it, authority could not be maintained nor navigation made
safe. Subordination is essential to be strictly enforced among
a class of men whose manners and habits partake of the attri-
butes of the element on which they are employed. Disobedience
to lawful commands is a more noxious offence, and the most
dangerous in its nature, for it goes at once to the utter annihila-
tion of all authority. But care must be taken that the punish-
ment be administered with due moderation. The law watches
the exercise of discretionary power with a jealous eye. If the
any legal authority of the captain to correct by corporal chastisement the misbehavior
of mariners; yet, as the learned judge of the District Court of Maine observed, in the
case above mentioned, this power in the master seems either to have been inferred, or
to have become silently established by usage. Casaregis (Disc. 136, n. 14) admits that
the master may inflict slight chastisement, by analogy to the power of a father or domes-
tic master; and the ordinance of Louis XIV. (liv. 2, tit. 1, art. 22) confers a strong power
of personal punishment on the captain, in aggravated cases, and acting under the advice
of the mate and pilot. The act of Congress, 3d March, 1835, c. 40, sec. 3, makes it
an indictable offence, punishable by fine and imprisonment, for the master or other
officer of any American vessel, on the high seas or other waters, within the admi
ralty and maritime jurisdiction of the United States, from malice, hatred, or revenge,
and without justifiable cause, to beat, wound, or imprison any of the crew, or with-
hold from them suitable food and nourishment, or inflict upon them any cruel and
unusual punishment. In the case of The United States v. Proctor, in the Circuit
Court of the United States for the Southern District of New York, in November,
1835, it was held, that, as a general rule, seamen must obey the last order coming
from any officer, as it may arise from some sudden emergency requiring it; and that
for unjustifiable disobedience, moderate personal punishment might be inflicted.
Again, in the Circuit Court U. S. for Massachusetts, in 1841, in the case of United
States v. Hunt, [2 Story, 120,] it was held, that the right of the mate to inflict punish-
ment on the seamen, when the master is on board and at hand, is justified only by
the immediate exigencies of the sea service, or as a necessary means to suppress
mutinous, illegal, or flagrant misbehavior on the part of the seamen, or to compel
obedience to pressing orders. In the case of The United States v. Colby, District
Court U. S. for Massachusetts, (the Law Reporter for March, 1846,) it was decided,
that if the master of a ship at sea, in the exercise of a sound and honest judgment,
believes danger to be imminent, and to require the use of a dangerous weapon (a
loaded pistol, for instance) to reduce to obedience a seaman in open mutiny, with
deadly weapons in his hand, and threatening the lives of the officers, and the mas-
ter should use such a weapon from honest motives, he would be justified.¹
1 s. c., 1 Sprague, 119. See 3 Woodb. of July 17, 1862, ch. 204, § 1, 12 St. at L.
& M. 1.
600. By the Act of July 27, 1866, ch.
286, 14 St. at L. 304, the navy regulation
prohibiting the wearing of sheath knives
on shipboard
on shipboard is made applicable to all
seamen in the merchant service.
Flogging in the navy, and on board
vessels of commerce, was abolished by
the act of Sept. 28, 1850, ch. 80, § 1, 9 St.
at L. 515. See, also, art. 8 of the rules
for the government of the navy in the act
[252]
LECT. XLVI.]
* 183
OF PERSONAL PROPERTY.
correction be excessive or unjustifiable, the seaman is sure to
receive compensation in damages on his return to port, in an
action at common law. (b) And it must be an extreme case that
will justify a master to confine a seaman in a common jail
*
in a foreign port. He cannot do it as a punishment, but *183
only by way of precaution under the existing circum-
stances. (a) The master may also restrain or even confine a
passenger who refuses to submit to the necessary discipline of
the ship.(b)
The master has also the right to discharge a seaman for just
cause, and put him ashore in a foreign country; but the causes
must be, not slight, but aggravated, such as habitual disobedience,
mutinous conduct, theft, or habitual drunkenness; 1 and he is
responsible in damages if he discharges him without just cause. (c)
This power of discharge extends to the mate and subordinate offi-
cers, as well as to the seamen, for the master must be supreme in
the ship, and subordination and discipline are indispensable to the
safety and welfare of the service. But it would require a case of
flagrant disobedience, or gross negligence, or palpable want of skill,
to authorize the captain to displace a mate, who is generally chosen
with the consent of the owners, and with a view to the better
safety of the ship, and the security of their property. (d) The
marine law requires the master to receive back a seaman whom
he has discharged, if he repents and offers to return to his duty
(b) Watson v. Christie, 2 Bos. & P. 224.
(a) United States v. Ruggles, 5 Mason, 192; Magee v. Ship Moss, Gilpin, 219,
233; Wilson v. Brig Mary, Gilpin, 31. [Johnson v. The Coriolanus, Crabbe, 239.]
The subordinate officers have no authority to punish a seaman when the master is
on board, unless by his orders. Elwell v. Martin, Ware, 53; Butler v. McLellan, ib.
219; United States v. Hunt, supra.
(b) Boyce v. Bayliffe, 1 Camp. 58; Prendergast v. Compton, 8 Carr. & P. 454.
See, also, the remarks of Mr. Justice Story, on the duty of decorous deportment to
passengers by the master. Chamberlain v. Chandler, 3 Mason, 242.
(c) Relf v. The Ship Maria, Peters Adm. 186; Black v. The Ship Louisiana, ib.
268; Hulle v. Heightman, 2 East, 145; Sir William Scott, in the case of the Exe-
ter, 2 C. Rob. 261. The French law affords peculiar protection to seamen; and
among other things, in this, that it prohibits the master from discharging a seaman, in
any case, in a foreign country. This was by a royal declaration of 18th December,
1728, art. 1, mentioned in 1 Valin's Comm. 734; and it is adopted in the Code de
Commerce, art. 270.
(d) Atkyns v. Burrows, 1 Peters Adm. 244; Thompson v. Busch, 4 Wash. 338.
1 Or attempting a rape on a female See, further, Jones v. Sears, 2 Sprague,
passenger. Nieto v. Clark, 1 Cliff. 145. 48.
[253]
*184
[PART V.
OF PERSONAL PROPERTY.
and make satisfaction; and if the master refuses, or if the seaman
has been unduly discharged, he may follow the ship, and
*184 recover his wages for the voyage, and * the expenses of his
return. (a) The laws of the United States make it highly
penal, and subject the master to fine and imprisonment, if, with-
out justifiable cause, he maliciously forces an officer or mariner
on shore while abroad, or leaves him behind in any foreign port
or place, or refuses to bring home those whom he took out, and
who are in a condition and willing to return. (b)
It was a question which received a profound discussion, and
led to a learned research in Harden v. Gordon, (c) whether a
seaman, who became sick and disabled on the voyage, was entitled
to medical advice and aid, such as medicine, sustenance, and
attendance, at the expense of the ship. It was there shown and
decided, that the expense of curing a sick seaman in the course
of the voyage was a charge upon the ship, according to the mar-
itime law of Europe, (d) and the rule recommended itself as much
by its intrinsic equity and sound policy as by the sanction of its
general authority. Such an expense was in the nature of addi-
tional wages during sickness, and it constituted a material ingredi-
ent in the just remuneration of seamen for their labor and services.
The statute law of the United States (e) has not changed the
maritime law and exempted the vessel, except so far as respects
medicines and medical advice, and which must be borne by the
seamen and not by the owner, when there was a proper medicine
chest and medical directions on board the ship; and it does not
apply to nursing, diet, and lodging, or even medical advice, if the
seamen be carried ashore, and which, under the general maritime
law, are to be borne by the vessel. (ƒ) The claim for such
expenses, equally with a claim for wages, may be enforced in the
courts of admiralty; and Judge Story, in the case of Harden
(a) Laws of Oleron, art. 13; Laws of Wisbuy, art. 25; Code de Commerce, art.
270; Relf v. The Ship Maria, Peters Adm. 193, 194; Hutchinson v. Coombs, Dis-
trict Court of Maine, Ware, 65; The Nimrod, ib. 9.
(b) Act of Congress, 3d March, 1825, c. 67, sec. 10. So, by the statutes of 5 and
6 Wm. IV. c. 19, the master of a merchant ship is indictable, if he wilfully and
wrongfully leaves a seaman behind, before the termination of the voyage.
(c) 2 Mason, 541.
(d) Laws of Oleron, art. 7; Laws of Wisbuy, art. 19; Laws of the Hanse Towns,
art. 45; Code de Commerce, art. 262, 263.
(e) Vide supra, 179.
(f) The Nimrod, Ware, 19; The Forest, ib 420.
[254]
LECT. XLVI.]
*.185
OF PERSONAL PROPERTY.
v. Gordon,¹ with great force, and moving on solid principles,
vindicated the admiralty jurisdiction over the whole * com-
pensation, in all its varied forms, when due to seamen for
their maritime services. (a)
*185
The act of Congress requires, that in seamen's shipping arti-
cles, the voyage and term of time for which the seamen may be
shipped be specified. (b) The regulation relates to voyages from
a port in the United States, and it does not apply to a voyage
commencing from a foreign port to the United States. The
voyage, within the intendment of the statute, means one having
a definite commencement and end, and a general coasting and
trading voyage from state to state is within the statute. (c) The
terminus a quo, and the terminus ad quem, must be stated pre-
cisely; and in a case of a general adventure, the term of service
must be specified. A voyage from New York to Curaçoa, and
elsewhere, means, in shipping articles, a voyage from New York
to Curaçoa, and the word elsewhere is rejected as being void for
uncertainty. (d) ¹
1
(a) This subject received ample discussion in Reed v. Canfield, 1 Sumner, 195,
and it was shown to be a settled principle of maritime policy, that a seaman was
entitled to be cured, at the expense of the ship, of all sickness and all injuries sus-
tained in the service of the ship. The rule applied not only during the voyage, but
when the vessel was in her home port, either at the commencement or termination
of the voyage, so long as the seaman was in the service of the ship, and as one of
the crew. The acts of Congress, supra, 179, for the relief of sick and disabled sea-
men, were deemed to be auxiliary to the maritime law.
(b) Act of Congress, 20th July, 1790, c. 29. This principle, as Mr. Curtis
observes, (Treatise on Seamen, 106,) may be traced, with remarkable uniformity,
through the marine laws and ordinances of all maritime states. It has been recog-
nized as a universal rule by the text-writers of France and England, and fully carried
into effect by the courts in this country.
(c) The Crusader, Ware, 444.
(d) Decision in the District Court of Maryland, by Judge Winchester, 1 Hall's
L. J. 209; Magee v. The Moss, Gilpin, 219.
1
¹ Morgan v. The Ben Flint, 6 Am. L.
Reg. N. s. 707; The Atlantic, Abbott
Adm. 451; Knight v. Parsons, 1 Sprague,
279; Nevitt v. Clarke, Olcott, 316, present
various interesting applications of the
principle. See, also, Croucher v. Oakman,
3 Allen, 185; The Brig George, 1 Sumner,
154; Brunent v. Taber, ante, 180, n. 1; 1
Sprague, 243; Brown v. Overton, ib. 462.
But if it is not necessary to the prose-
cution of the voyage that the seaman
should be cured, it has been held not
within the general authority of the master
to pledge the credit of the owners for
provisions, or even for medicines. Organ
v. Brodie, 10 Exch. 449; ante, 164, n. 1.
¹ Shipping Articles. See Brown v.
Jones, 2 Gall. 477; Ely v. Peck, 7 Conn.
239; Gifford v. Kollock, 19 Law Rep. 21.
By the act of July 20, 1840, ch. 48,
§ 10, 5 St. at L. 395, articles not comply-
ing with the requirements of the act of
[255]
* 185
[PART V.
OF PERSONAL PROPERTY.
(4) Wages. -Seamen in the merchant service are usually
hired at a certain sum, either by the month or for the voyage.
The ancient form of the mariner's contract was for one entire
sum for the voyage, and the modifications of the entirety of the
contract, by apportionment, when the services of the seamen have
been interrupted pending the voyage, are distinguished by equi-
table and minute provisions in the foreign ordinances and codes.
The modern mode of hiring is at monthly wages. The contract
is for a definite voyage, at the rate of so much per month for the
whole time that the voyage continues. (e) In the fishing trade,
the seamen usually serve under an engagement to receive a por-
tion of the profits of the adventure.2 The share, or profits of the
voyage, are a substitute for regular wages, and are treated as
stipulated wages are treated, and the mariners are not partners
(e) Pothier, Louage des Matelots, n. 172; Walton v. The Ship Neptune, Peters
Adm. 142.
1790 are void. Snow v. Wope, 2 Curtis,
301, affirming Wope v. Hemenway, 1
Sprague, 300. Other cases on the validity
of articles under the American law are
Douglass v. Eyre, Gilpin, 147; The Gem,
U. S. D. C. Mass. said in 2 Pars. Ship.
37, note, to throw doubt on U. S. v. Staly,
1 Woodb. & M. 338.
The British Merchant Shipping Act,
1854, 17 & 18 Vict. c. 104, § 149, requires
the articles to contain, among other things,
"the nature, and, as far as practicable,
the duration of the intended voyage or
engagement." In The Westmoreland, 1
W. Rob. 216, Dr. Lushington admits that
the words "nature of the voyage" relax
the strictness of the obligation before im-
posed, but expresses the opinion that they
entitle the mariner to a fair intimation of
the nature of the service in which he is
to engage, as, for instance, whether he is
to winter in arctic or tropic regions. And
this opinion has been taken in America
to express the present state of the Eng-
lish law. Roberts v. Knights, 7 Allen,
449;
The Kingbird, U. S. D. C. Mass.
See, also, The Varuna, 18 Law Rep. 437,
439. However, in The Westmoreland, as
well as in the earlier case of the George
Home, 1 Hagg. Adm. 370, the port of un-
livery might be anywhere in the conti-
nent of Europe, as was pointed out in
The Triumph, 5 Ir. Jur. N. s. 381; and in
that case articles for a voyage, if required,
to any port in the North and South Pacific
oceans, Indian and China seas, and several
other specified places, for a period not
exceeding two years, the port of final dis-
charge being in the United Kingdom,
were held good. The voyage in Roberts
v. Knights is in a form frequently used in
the British shipping offices, and the prac-
tice which allows a good deal of laxity as
to the intermediate ports which may be
visited, if the terminus ad quem is fixed,
seems to be justified now that submarine
telegraphs make it possible for the owners
to change the destination of a vessel after
she has left port. See, further, Frazer v.
Hatton, 2 C. B. N. s. 512. In Button v.
Thompson, L. R. 4 C. P. 330, the articles
were very wide, and The Westmoreland
was cited in argument, yet there was no
suggestion that they were invalid. Bur-
ton v. Pinkerton, L. R. 2 Ex. 340.
2 Jay v. Almy, 1 Woodb. & M. 262;
Reed v. Hussey, Bl. & Howl. 525, 537.
[256]
LECT. XLVI.]
*186
OF PERSONAL PROPERTY.
with the owners in the profits of the voyage. The act of Con-
gress (ƒ) extends the admiralty jurisdiction to the cognizance of
suits for shares in whaling voyages, in the same form and manner
as in ordinary cases of wages in the merchant service. (g)
*186
Every seaman engaged to serve on board a ship is bound, from
the nature and terms of the contract, to do his duty in the ser-
vice to the utmost of his ability; and, therefore, a promise made
by the master, when the ship is in distress, to pay extra wages, as
an inducement to extraordinary exertion, is illegal and void. It
would be the same if some of the crew had deserted, or
were sick, or dead, and peculiar efforts * became requisite ;
for the general engagement of the seamen is to do all they
can for the good of the service, under all the emergencies of the
voyage. Lord Kenyon puts the illegality of such a promise on
the ground of public policy, and Lord Ellenborough on the want
of consideration. (a)¹ It requires the performance of some ser-
vice not within the scope of the original contract, as by becoming
a voluntary hostage upon capture, to create a valid claim, on the
part of the seamen, to compensation, on a promise by the master,
beyond the stipulated wages. (b) So, no wages can be recovered
when the hiring has been for an illegal voyage, or one in viola-
(f) Act of Congress, 19th June, 1813, c. 2, secs. 1, 2.
1
(g) In whaling voyages from the New England states, three tenths of the earnings
of the ship are the share of the seamen.
(a) Harris v. Watson, Peake, 72; Stilk v. Myrick, 2 Camp. 317. The same rule
applies to a promise by a passenger to any of the crew of a wrecked vessel. Mesner
v. Suffolk Bank, Mass. U. S. D. C. 1838.
(b) Yates v. Hall, 1 T. R. 73.
1 Wages. - See, also, Harris v. Carter,
3 El. & Bl. 559; The Araminta, 1 Spinks,
Ec. & Ad. 224; 18 Jur. 793; 29 Eng. L. &
Eq. 582.
If, after the seaman has signed articles
in a foreign port, he finds the ship is un-
seaworthy, there is consideration for a
new contract. Turner v. Owen, 3 F. &
F. 176; ante, 178, n. 1
To prevent a recovery of wages for an
illegal voyage, the seaman must have
known of the illegality. The Mary, 1
Sprague, 204; Malta, 2 Hagg. Adm. 158;
The Mary Ann, Abbott Adm. 270; The
St. Jago de Cuba, 9 Wheat. 409, 414. The
seaman's right to sue the master has been
VOL. III.
17
held to exist as against a mate who took the
master's place, in a case where the articles
contained a promise of obedience to suc-
cessors in the office. But the principle of
Priestly v. Fernie, ante, 161, n. 1, was ap-
plied. Fitzsimmons v. Baxter, 3 Daly, 81.
By statute 17 & 18 Vict. c. 104, § 185,
when the seaman's service terminates be-
fore the period contemplated in the agree-
ment by reason of his being left on shore
at any place abroad under a certificate of
his unfitness or inability to proceed on
the voyage granted as mentioned in the
act, he is entitled to wages for the time of
service prior to such termination only.
See 188, n. 1; 199 n. 1.
[ 257 ]
* 187
[PART V.
OF PERSONAL PROPERTY.
tion of a statute. The law will not countenance a contract ex
turpi causa, nor permit any one to lay claim to the wages of
iniquity. (c)
A seaman is entitled to his whole wages for the voyage, even
though he be unable to render his service by sickness or bodily
injury, happening in the course of the voyage, and while he was
in the performance of his duty. This is not only the invariable
usage in the English admiralty, but a provision of manifest justice,
pervading all the commercial ordinances. (d) But if the seaman,
who enters himself as competent, fails in his duty from the want
of competent knowledge or health, the master may make a rea-
sonable deduction from his wages. (e) He will be entitled to his
wages to the end of the voyage, when wrongfully discharged by
the master in the course of it. (f) The marine law very
*187 equitably distinguishes * between the cases in which sea-
men's services are not rendered in consequence of a peril
of the sea, and in which they are not rendered by reason of some
illegal act, or misconduct, or fraud, of the master or owner, inter-
rupting and destroying the voyage. In the latter case, the sea-
men are entitled to their wages, (a) and the rule of the French
ordinance is just and reasonable. It declares, that if the seamen
be hired for the voyage, they shall, in such case, be paid the
entire wages for the voyage, and if they be hired by the month,
they shall be paid for the time they served, with the allowance
of a reasonable time for their return to the port of departure. (b)
(c) The Vanguard, 6 C. Rob. 207.
(d) Chandler v. Grieves, 2 H. Bl. 606, note; Abbott on Shipping, part 5, c. 2,
sec. 1; Williams v. The Brig Hope, Peters Adm. 138. [Shakerly v. Pedrick,
Crabbe, 63; Nevitt v. Clarke, Olcott, 316.]
(e) Atkyns v. Burrows, Peters Adm. 247; Mitchell v. The Ship Orozimbo, ib.
250; Sherwood v. McIntosh, Ware, 109.
(f) Robinett v. The Ship Exeter, 2 C. Rob. 261; The Beaver, 3 id. 92; Keane v.
The Brig Gloucester, 2 Dall. 36; Peters Adm. 403; Rice v. The Polly and Kitty, ib
420. In this last case, the seamen were forced to quit the ship by the cruelty and
dangerous threats of the master, and their wages were allowed. If the seaman be
wrongfully discharged after he had signed the shipping articles, and before the voyage
begins, the rule has been asserted of allowing his wages for the whole voyage, deduct-
ing the wages earned elsewhere in the mean time. He is entitled to a complete
indemnity for his illegal discharge. Case of the City of London in the English
Admiralty, November, 1839; [1 W. Rob. 88.] See note to Curtis's Treatise on the
Rights and Duties of Merchant Seamen, 299; Emerson v. Howland, 1 Mason, 53;
Curtis, ub. supra, 299, 300, 301.
(a) Wells v. Osman, 2 Ld. Raym. 1044; Herron v. The Peggy, Bee Adm. 57.
(b) Ord. des Loyers des Matelots, art. 3; Pothier's Louage des Matelots, n. 203
[258]
LECT. XLVI.]
* 188
OF PERSONAL PROPERTY.
But if a loss in respect to ship or cargo arises from the gross
negligence of a mariner, the damage may be set off in the admi-
ralty against a claim for wages. (c) If a seaman be wrongfully
discharged on the voyage, the voyage is then ended with respect
to him, and he is entitled to sue for his full wages for the
voyage. (d)
The general principle of the marine law is, that freight is the
mother of wages, and if no freight be earned, no wages are due.
This principle protects the owner, by making the right of the
mariner to his wages commensurate with the right of the owner
to his freight; but that the rule may duly apply, the freight must
not be lost by the fraud or wrongful act of the master. The
policy of the rule applies to cases of loss of freight by a peril of
the sea; and it was truly and distinctly stated by the Court
of K. B. in the time of Charles II., (a) that if the ship *188
perished by tempest, fire, enemies, &c., the mariners lose
their wages;
"for if the mariners were to have their wages in
such cases, they would not use their endeavors, nor hazard their
lives for the safety of the ship."1 If the voyage and the freight
Cushing's Translation, 123; Roccus, de Nav. et Naulo, n. 43; Ingersoll's Translation,
46; Hoyt v. Wildfire, 3 Johns. 518.
(c) Abbott on Shipping, 472; The New Phoenix, 2 Hagg. Adm. 420.
(d) Sigard v. Roberts, 3 Esp. 71; [Brown v. The Independence, Crabbe, 54.] In
the case of the Castilia, 1 Hagg. Adm. 59, a seaman who had left the ship in the
course of the voyage, the master failing to supply him with provisions, was held not
to have forfeited his wages. And in The Elizabeth, 2 Dodson's Adm. 403, it was
held, that though a master be not at liberty, by the general rule, to discharge his
crew in a foreign port without their consent, yet that circumstances, as a case of
seminaufragium, where repairs may be doubtful or difficult, might vest in him an
authority to do so, upon proper conditions, as by providing and paying for their return
passage, and their wages up to the time of their arrival at home. Curtis on the Rights
of Seamen, 301, s. c.
(a) Anon., 1 Sid. 179.
1 Freight the Mother of Wages. - This
does not apply to the master, ante, 167,
n. 1, and although in Hawkins v. Twizell,
5 El. & Bl. 883, decided in 1856, the gen-
eral rule of the marine law was said to be
that freight is the mother of wages, earlier
cases in the admiralty had at least estab-
lished an exception in the case of ship-
wreck. So long as any portion of the
ship was saved, although by the exer-
tions of others than the crew, the proceeds
were held liable for the crew's wages.
The Reliance, 2 Wm. Rob. 119 (May 26,
1843); post, 196, n. 1; The Florence, 16
Jur. 572, 578; 20 Eng. L. & Eq. 607, 609;
Worth v. Mumford, 1 Hilton, 1, 25; The
John Perkins, 21 Law Rep. 87, 91. See
138, n. 1; 166; 218, n. 1.
The Reliance, sup., was followed in the
next year by 7 & 8 Vict. c. 112, § 17,
which is now superseded by 17 & 18 Vict.
c. 104, § 183. By the latter the seaman's
right to wages is not dependent on the
earning of freight; but in all cases of
[ 259]
#188
[PART V.
OF PERSONAL PROPERTY.
be lost, because the ship was seized for debt, or for having con-
traband or prohibited goods on board, or for any other cause
proceeding from misconduct in the master or owner, it would be
unreasonable and unjust that the innocent seamen should be
deprived of compensation for their services, and the marine law
holds them still entitled to their wages. (b) The wages are, in
such cases, allowed pro tanto to the time of the loss of the voy-
age, and with such additional allowance as shall be deemed
reasonable under the circumstances. (c)
(b) Malynes's Lex Mercatoria, 105; Molloy, de Jure Maritimo, b. 2, c. 3, sec. 7;
Hoyt v. Wildfire, 3 Johns. 518; Jacobsen's Sea Laws, b. 2, c. 2; The Malta, 2 Hagg.
Adm. 158.
(c) In Woolf v. The Brig Oder, Peters Adm. 261, where the voyage was broken
up by seizure for debt, wages up to the time were allowed, and one additional month's
It is equally settled in the Pennsyl-
vania E. district to allow them for the
whole voyage. Johnson v. The Corio-
lanus, Crabbe, 239, 242. The question
seems to be still unsettled in England.
If a ship is lost on a seeking voyage,
after she has carried cargoes, in the course
of it, between several ports, wages are
allowed, at least in respect of those trips
in which freight has been earned. Hicks
v. Walker, 4 W. R. 511; 37 Eng. L. & Eq.
542. See Smith v. The Stewart, Crabbe,
So, when by the construction of the
articles the wages become vested and a
debt at the end of each month of service.
Button v. Thompson, L. R. 4 C. P. 330.
Capture does not extinguish the master's
right to wages already earned. 167, n. 1.
218.
wreck or loss of the ship, proof that he 7.
has not exerted himself to the utmost to
save the ship, cargo, and stores shall bar
his claim. This brings the law nearer to
the doctrine contended for by Mr. Dana
in The Niphon, 13 Law Rep. 266. In that
case the vessel was abandoned at sea, and
set fire to by order of the master, and no
part of the vessel itself was saved, or any
thing but a few articles of small value.
It was learnedly argued that by the early
codes and on principle, if the seamen are
bound to labor in salvage as part of their
original contract, their claim for wages
does not depend upon their lien on the
materials of the vessel saved; and that
on the other hand when, as in France, a
loss of the vessel and cargo is followed by
a loss of wages, the wreck dissolves the
contract, and the seamen are not bound
to labor in saving vessel or cargo. But
the argument did not prevail, and would
not have done so elsewhere. The Flor-
ence, sup.; Henop v. Tucker, 2 Paine, 151;
post, 196, n. 1.
When the seaman dies during the voy-
age, it is the settled practice in the Mas-
sachusetts district to allow wages only to
the time of the death. Hanson v. Row-
ell, 1 Sprague, 117, 118. And see Mac-
lachlan on Shipping, c. 5, p. 209, n. 3,
citing the better text of the laws of Oleron
in Pardessus, 1 Lois Maritimes, ch. 8, art.
By 17 & 18 Vict. c. 104, § 142, no sea-
man shall by any agreement forfeit his
lien upon the ship, or be deprived of any
remedy for the recovery of his wages to
which he would otherwise have been en-
titled; and every stipulation by which
any seaman consents to abandon his right
to wages in the case of the loss of the
ship, or to abandon any right which he
may have or obtain in the nature of sal-
vage, shall be wholly inoperative.
See further, as to seamen's claim for
salvage, 196, n. 1; as to time for enforc-
ing their lien, 196, n. 2; as to forfeiture
of wages, 199, n. 1.
[260]
LECT. XLVI.]
* 189
OF PERSONAL PROPERTY.
(5) Pro Rata Wages.-* Seamen's wages, in trading *189
voyages, are due pro rata itineris. This has been so decided
in the Scottish courts, and upon principles of controlling equity.(a)
If the seaman dies on the voyage, there is no settled English
rule on the subject of his wages. In one case, the court
intimated, that his representatives might be entitled to a pro-
portion of the wages up to his death, when the hiring was
by the month, and there was no special contract in the way; (b)
and a similar opinion was mentioned by one of the judges of the
C. B. in another case. (c) In a still later case (d) it was assumed
by the Court of C. B., that wages of a seaman, who died on the
voyage in which wages arose, were due to his representatives; but
the case was silent as to the precise time to which they were to
be computed. In this country, there have been contradictory
decisions on the point. In the Circuit and District Courts of the
United States, in Pennsylvania, it was decided, upon the authority
of the laws of Oleron, that the representatives of the seamen,
dying during the voyage, were entitled to full wages to the end
of the voyage. (e) On the other hand, it was subsequently decided,
pay. Wages are not lost if the voyage be broken up by reason of civil process against
the vessel, on a claim of ownership. If the claim be unfounded, adequate damages
are presumed to be awarded for the unfounded libel, and if well founded, the wages
are lost by the default of the shipper. Van Beuren v. Wilson, 9 Cowen, 158. In
Hoyt v. Wildfire, where the seamen were hired for a voyage from New York to the
East Indies, and back to New York, and the vessel was captured and condemned on
the outward voyage for having contraband goods on board, wages, according to the
rate of the contract, were allowed from the commencement of the voyage until the
return of the seamen, with reasonable diligence, to New York, deducting wages
received while in other service, on the circuitous return. The court observed, that
the rule in the French law (Ord. des Loyers des Matelots, art. 3; Pothier, Louage
des Matelots, n. 203) ordained, that if the seamen were hired for the voyage, they
should, in such a case, be paid their entire wages for the voyage; and if hired by the
month, the wages due for the time they had served, and for the time necessary to
enable them to return to the port of departure; and that there was no reason to ques-
tion the soundness of the rule, or the propriety of following it in that case.
(a) Ross v. Glassford, and Morrison v. Hamilton, cited in 1 Bell's Comm.. 515. But
the rule may be varied by agreement. Appleby v. Dods, 8 East, 300.
(b) Cutter v. Powell, 6 T. R. 320; [2 Sm. L. C. 1.] In this case the sailor took a
note from his employer for a certain sum for the voyage, provided he continued to do
his duty, and he died on the voyage. It was held, that being an entire contract, it
could not be apportioned, and no wages could be claimed either on the contract or
on a quantum meruit. [See Button v. Thompson, L. R. 4 C. P. 330, 340.]
(c) Heath, J., in Beale v. Thompson, 3 Bos. & P. 425.
(d) Armstrong v. Smith, 4 Bos. & P. 299.
(e) Walton v. The Ship Neptune, Peters Adm. 142; Sims v. Jackson, ib. 157;
note; 1 Wash. 414, s. c.
[261]
* 190
[PART V.
OF PERSONAL PROPERTY.
in the District Court of the United States for South Carolina, (ƒ)
and in the District Court in Massachusetts, (g) that full
wages, by the marine law, meant only full wages up to the death
of the mariner; and in this last case, a very able and elab-
*190 orate review was taken of * all the marine ordinances and
authorities applicable to the subject. The court examined
critically the provisions in the Consolato del Mare, and in the
laws of Oleron, of Wisbuy, and of the Hanse Towns, the ordi-
nances of Charles V. and Louis XIV., the commentaries of Cleirac,
Valin, and Pothier, and all that had been said and decided in
England or Massachusetts in relation to the question. If the two
decisions in Pennsylvania outweigh in point of American author-
ity, the opposite adjudications are best supported in the appeal
to those ordinances of European wisdom and policy in which we
discern the deep foundations of maritime jurisprudence. (a) ¹
1
As the payment of wages, in general, depends upon the earning
of freight, if a ship delivers her outward cargo, and perishes on
her return voyage, the outward freight being earned, the seamen's
wages on the outward voyage are consequently due. (6) By the
custom of merchants, seamen's wages are due at every delivering
port; and their wages are not affected, without their special agree-
ment, by any stipulation between the owners and the charterer,
making the voyages out and home one entire voyage, and the
freight to depend on the accomplishment of the entire voyage
out and in. (c) 1 The owners may waive or modify their
(f) Carey v. The Schooner Kitty, Bee Adm. 255.
(g) Natterstrom v. The Ship Hazard, 2 Hall's L. J. 359.
(a) If the seaman be hired by the voyage, and die during it, the standard books of
maritime law, says Mr. Bell, seem to give the outward wages, if he dies during the
outward voyage, and the whole, if he dies during the homeward voyage. But if he
be hired by the month, it rather seems that wages will be due only to the time of his
death. Bell's Comm. i. 514.
(b) Anon., Holt, C. J., 1 Ld. Raym 639.
(c) Notes of Judge Winchester's decisions, 1 Peters Adm. 186, note; Abbott on
Shipping, pt. 5, c. 2, sec. 3; Blanchard v. Bucknam, 3 Greenl. 1. In Thompson v.
Faussat, 1 Peters C. C. 182, where the vessel was lost on her homeward voyage, full
wages were held due to the seamen up to the arrival at the last port of delivery of the
outward cargo; and half wages from that time until her departure from the last port
at which the return cargo was taken on board. This rule was elaborately supported
by Mr. Justice Story, in the C. C. U. S. for Massachusetts, 1838, in the case of Pitman
v. Hooper, 3 Sumner, 50, 286, 298, 299, in opposition to the decision of Judge Hopkin-
son, in Bronde v. Haven, Gilpin, 606, 613; and he considers it to be the settled rule,
1 See 188, n. 1.
[262]
LECT. XLVI.]
* 191
OF PERSONAL PROPERTY.
claim to freight as they *please, but their acts cannot *191
deprive the seamen, without their consent, of the rights
belonging to them by the general principles of the marine law.
The doctrine of wages was discussed at the bar and upon the
bench in the case of the Two Catharines, (a) with distinguished
force and research; and it was held, that where a ship sailed
from the United States to Gibraltar, and there landed her cargo,
and went in ballast to Ivica, and, after taking in a return cargo,
was lost on the voyage back to the United States, the seamen
were entitled to wages up to the arrival and stay at Ivica. It
made no difference that the vessel was in ballast in the interme-
diate voyage. The voluntary neglect of the owner will not operate
in such a case to the injury of the seamen. They are entitled to
wages, not only when the owner earns freight, but when, unless
for his own act, he might earn it. The wages are due by an
arrival at a port of destination, when no cargo is on board, or
when the owner chooses to bring the cargo back again, and when
the port of destination be not, in point of fact, the port of deliv-
ery. Even if the ship perishes on the outward voyage, yet, if
part of the outward freight has been paid, the seamen are enti-
tled to wages in proportion to the amount of the freight ad-
vanced, for there is an inseparable connection between freight
and wages. (b) Capture by an enemy extinguishes the con-
tract for seamen's wages; and Sir William Scott, in the case of
the Friends, (c) held that the recapture of the vessel did not
revive the right, or restore him to his connection with the ship,
inasmuch as he was not on board at the recapture, and did not
render any subsequent service. The doctrine of this case was
overruled in Bergstrom v. Mills; (d) and the American deci-
sions have fully discussed the question, and they lay down
¹
that when the ship is lost in her homeward voyage, the seamen are to be paid their
wages up to the last port of discharge, and for half the time the ship lay there. Half
the time passed in port is attributed in practice to the concerns and business of the
discharge of the outward voyage, and half the time to employment by the seamen, in
preparations or business connected with the homeward voyage; and it is considered
to be an equitable and just apportionment, and the wages for that last half or period
of time are deemed lost by the loss of the ship on the homeward voyage.
(a) 2 Mason, 319.
(b) Anon. 2 Show. 291; Brown v. Lull, 2 Sumner, 443.
(c) 4 C. Rob. 143.
(d) 3 Esp. 36.
1 See 188, n. 1.
[263]
* 193
[PART V.
OF PERSONAL PROPERTY.
*192 * a different rule, and proceed on the just principle, that
the owner recovers his freight, and that is the parent of
wages. They accordingly allow to the seamen taken prisoners
by the captor, and detained, their wages for the whole voyage,
if the same be afterwards performed, with a ratable deduction
for the expenses of salvage. The like rule applies to the case of
a vessel captured, and afterwards ransomed, and enabled to arrive
at her port of destination. (a) Nothing can be more equitable
than the rule which allows to seamen, suffering in the service,
their compensation, when the fund out of which it was to arise
is ultimately recovered and enjoyed by the owner. (b) And, upon
the same principle, if a foreign power seizes the ship and imprisons
the seamen, and they be afterwards released, and reassume and
complete the voyage, and earn freight, their wages are continued
during the interruption of the voyage, in like manner as in a
case of capture and recapture. The Court of K. B. declared the
law to this effect in Beale v. Thompson, (c) and they proceeded
on the sound and incontestable principle of the marine law, that
the title to wages depended on the ship earning her freight for
the voyage, connected with the further fact, that the mariner
were not guilty of any breach of duty. If a neutral ship be
captured, and even condemned, and the sentence be after-
wards reversed, and freight for the voyage allowed in dam-
ages, the seamen are entitled to their wages. (d) So, in the
case of shipwreck, if any part of the cargo be saved, the
wages of the seamen are to be paid without any deduction. (e)
(6) Protection. Whenever freight is earned, wages are
*193 due, and must be paid, and every agreement that goes
to separate the validity and equity of the demand for
wages, from the fact of freight being earned, is viewed with
distrust and jealousy, as being an encroachment on the rights
of seamen. The courts of maritime law extend to them a
peculiar protecting favor and guardianship, and treat them as
(a) Girard v. Ware, 1 Peters C. C. 142.
*
(b) Hart v. The Ship Littlejohn, Peters Adm. 115; Howland v. The Brig Lavinia,
ib. 123; Singstrom v. The Schooner Hazard, ib. 384; Brooks v. Dorr, 2 Mass. 39;
Wetmore v. Henshaw, 12 Johns. 324; Brown v. Lull, 2 Sumner, 443.
(c) 4 East, 54 i.
(1) Willard v. Dorr, 3 Mason, 161; Brown v. Lull, 2 Sumner, 443 s. P.
299, n. (c).
(e) Pitman v. Hooper, 3 Sumner, 50, 61, 67.
See post,
[264]
LECT. XLVI.]
* 193
OF PERSONAL PROPERTY.
ļ
wards of the admiralty; and though they are not incapable of
making valid contracts, they are treated in the same manner
that courts of equity are accustomed to treat young heirs deal-
ing with their expectancies, wards with their guardians, and
cestuis que trust with their trustees. They are considered as
placed under the influence of men who have naturally acquired a
mastery over them. Every deviation from the terms of the com-
mon shipping paper (which stands upon the general doctrines of
maritime law) is rigidly inspected; and if additional burdens or
sacrifices are imposed upon the seamen without adequate remu-
neration, the courts will interfere and moderate or annul the
stipulation. (a) It has accordingly, under the influence of these
just and humane considerations, been held, that an additional
clause to the shipping articles, by which the seamen engaged to
pay for all medicines and medical aid further than the medical
chest afforded, was void, as being grossly inequitable, and con-
trary to the policy of the act of Congress. (b) It has likewise
been decided, that a stipulation that the wages of the seamen,
earned in the intermediate periods, should depend upon the ulti-
(a) The Minerva, 1 Hagg. Adm. 347; The George Home, ib. 370. Shipping arti-
cles are only conclusive as to the amount of wages and the voyage. On all collateral
points the courts of admiralty will consider how far the stipulations in regard to sea-
men are reasonable and just. The Prince Frederick, 2 id. 394; Brown v. Lull, 2
Sumner, 443, s. P. The voyage must be designated with as much particularity and
precision as the case admits of, and the articles must not be so loosely drawn as to leave
the seamen exposed to unanticipated and experimental voyages. Vide 1 Hagg. supra.
[Ante, 185, n. 1.] The English statute of 6 Wm. IV. c. 19 has made new and more strict
regulations relative to shipping articles for the greater protection of the rights of the
seamen. It is a point not precisely settled, how far the duty of obedience on the part
of the seamen extends beyond the service of their own ship. The contract does not
extend to any other service. But the Consolato, c. 148, par Boucher, ii. 224, allows the
master to order the seamen, in certain cases, to help another vessel in distress; and
it is said, in the case of the Centurion, Ware, 482, that if a wreck be met with on the
voyage, the master may send his seamen to attempt to save it. So, according to the
sense and usages of the general maritime law, the master may employ his vessel and
crew in rescuing life, and even property, from destruction, under certain circum-
stances. 1 Sumner, 336. See infra, 313. The learned author of the Treatise on the
Rights and Duties of Merchant Seamen, Boston, 1841, 35, seems to conclude, that
the seamen are not bound, stricto jure, to obey orders for services not within the con-
tract. But in my view of the subject, a strict construction of the articles must in
many cases give way to a larger construction, founded on the necessities of man-
kind, the controlling influences of the moral sense, and the imperative duties of
humanity.
(b) Harden v. Gordon, 2 Mason, 541; [Freeman v. Baker, Blatchf. & How. 372.
see The Cypress, ib. 83; The Sarah Jane, ib. 401; ante, 188, n. 1.]
[265]
* 195
[PART V.
OF PERSONAL PROPERTY.
mate successful termination of a long and divided voyage, was
inoperative and void. (c)
* 194 (7) Embezzlements.
* Mariners are bound to con-
tribute out of their wages for embezzlements of the cargo,
or injuries produced by the misconduct of any of the crew. But
the circumstances must be such as to fix the wrong upon some of
the crew; and then, if the individual be unknown, those of the crew
upon whom the presumption of guilt rests, stand as sureties for
each other, and they must contribute ratably to the loss. Some of
the cases in the books have established a general contribution from
all the crew for such embezzlements, even when some of them were
in a situation to repel every presumption of guilt; but neither
public policy, nor principles of justice, extend the contribution or
forfeiture of wages for such embezzlements, beyond the parties
immediately in delicto. This just limitation of the rule was
approved of by the English court of C. B. in Thompson v. Col-
lins, (a) in their construction of the clause in the usual shipping
articles, inserted to enforce this regulation of the marine law. It
was also adopted by the Supreme Court of New York, in Lewis
v. Davis, (b) and afterwards ably and thoroughly vindicated,
even against the high authority of Valin, by the Circuit Court of
the United States for the District of Massachusetts, in the case of
Spurr v. Pearson. (c) The doctrine of that case is so moral and
so just, that it may be said to rest on immovable foundations.
The substance of it is, that where the embezzlement had arisen
from the fault, fraud, connivance, or negligence of any of the
crew, they are bound to contribute to the reparation
*195 * of the loss, in proportion to their wages. If the embez-
(c) The Juliana, 2 Dods. 504; Abbott on Shipping, 5th Am. ed. Boston, 1846,
p. 748. See, also, to the same effect, Judge Winchester's decision in the District
Court of Maryland, in 1 Peters Adm. 187, note; Millet v. Stephens, in Mass. 1800,
cited in Abbott on Shipping, 5th Am. ed. 743, 745. The decision of Lord Stowell, in
The Juliana, is made with great force and spirit. He took a wide view of the subject,
and concluded, on the authority of the Court of Admiralty, of the Court of Chan-
cery, and of the courts of common law, that where a voyage was divided by various
ports of delivery, a proportional claim for wages attached at each of such ports; and
that all attempts to evade or invade that title, by renunciations obtained from the
mariners without any consideration, by collateral bonds, or by contracts inserted in
the body of the shipping articles, were ineffectual and void. The statute of 6 Wm.
IV. c. 19, sec. 5, has declared all such clauses in the articles of shipment to be inopera
tive and void. Abbott on Shipping, 5th Am. ed. 749.
(a) 4 Bos. & P. 347.
(b) 3 Johns. 17.
(c) 1 Mason, 104. See, also, Edwards v. Sherman, Gilpin, 461.
[266]
LECT. XLVI.]
* 196
OF PERSONAL PROPERTY.
1
zlement be fixed on any individual, he is solely responsible ;
and where it was made by the crew, but the particular offender
is unknown, and from the circumstances of the case strong pre-
sumptions of guilt apply to the whole crew, all must contribute.
Where no reasonable presumption is shown against their inno-
cence, the loss must be borne exclusively by the owner or master.
In no case are the innocent part of the crew to contribute for
the misdemeanors of the guilty; and in case of uncertainty,
the burden of the proof of innocence does not rest on the
crew, but the guilt of the parties is to be established beyond all
reasonable doubt, before the contribution can be demanded.
[(8) Salvage.]—In case of shipwreck, and there be relics or
materials of the ship saved, many of the old ordinances, as well as
the new commercial code of France, allow a compensation to the
seamen, out of the remains which they had, by their exertions, or
as salvors, contributed to preserve. (a) There were no English
decisions on the point when Lord Tenterden published the third
edition of his work; but some of the decisions in this country seem
to consider the savings of the wreck as being bound for the arrears
of the seamen's wages, and for their expenses home; and Lord
Stowell has, since the Pennsylvania decisions, allowed to the sea
men, by whose exertions part of a vessel had been saved, the pay-
ment of their wages, as far as the fragments of the materials would
form a fund, although there was no freight earned by the own-
ers. (b) In such cases, where the voyage is broken up by vis
major, and no freight earned, no wages, eo nomine, are 196
due; and the equitable claim which seamen may have upon
the remains of the wreck is rather a claim for salvage, and seems to
be incorrectly denominated in the books a title to wages. Wages,
in such cases, would be contrary to the great principle in marine
*
*
(a) The Laws of Oleron, art. 3; of Wisbuy, art. 15; the Hanseatic Ord. art. 44;
the Ord. of Philip II. tit. Average, art. 12; the Ord. of Rotterdam, art. 219, and the
French Ord. of the Marine, liv. 3, tit. 4, des Loyers des Matelots, art. 9; Code de
Commerce, art. 259.
(b) The Neptune, 1 Hagg. Adm. 227; 1 Peters Adm. 54, 195; 2 id. 426; Froth-
ingham v. Prince, 3 Mass. 563; Lewis v. The Elizabeth and Jane, Ware, 49. In
Adams v. The Sophia, Gilpin, 77, and in Brackett v. The Hercules, ib. 184, Judge
Hopkinson held, that where a portion of the vessel or her cargo was saved by the
meritorious exertions of the seamen, a new lien arose thereon for their wages, though
the freight be lost.
1 Joy v Allen, 2 Woodh. & M. 304. A
premeditated theft by a mariner will for-
feit his whole wages. Alexander v. Gal
loway, 1 Abbott Adm. 261.
[267]
196
[PART V.
OF PERSONAL PROPERTY.
law, that freight is the mother of wages, and the safety of the
ship the mother of freight. (a)¹ If, however, the seamen abandon
the wreck of a ship as being a hopeless case, and without the
(a) Dunnett v. Tomhagen, 3 Johns. 154; The Saratoga, 2 Gall. 164. The opinion
of Judge Story in the case of the Two Catharines, 2 Mason, 339, concludes with the
declaration, that his "review of American judicial decisions establishes it as a com-
mon and received doctrine, that the wages recovered in cases of shipwreck are recov-
ered in the nature of salvage, and as such form a lien on the property saved. And in
this view they are perfectly consistent with the rule that makes the earnings of freight
generally a condition of the payment of wages." But in the case of the Massasoit,
U. S. District Court, Mass. 1844, 7 Law Rep. 522 [1 Sprague, 97], the allowance of
claim to mariners as salvors in the case of shipwreck is considered as a startling viola-
tion of a principle of maritime policy. So Lord Stowell, in the case of the Neptune,
1 Hagg. Adm. 227, rejected the claim to the seamen as salvage, and said that it
rested on the ground of wages, and indeed it is said that they are nailed to the last
plank of the ship, and the last fragment of the freight. See the cases examined, and
the discussions referred [to,] in Abbott on Shipping, 5th Am. ed. Boston, 750-756.
The question seems to be rather one of verbal discussion and criticism, than of a sub-
stantial distinction.
1 Salvage. It has been said in reply But if the crew rightfully abandon the
to the author's suggestion at the end of ship at sea, under circumstances putting
note (a), that there are cases where the an end to their contract, and to their right
compensation wholly depends on the dis- to wages (of which circumstances the
tinction between wages and salvage,-as, command of the master is thought to be
for example, where the ship perishes, and an important element), they may earn
cargo alone is saved, with no freight due salvage if they subsequently fall in with
upon it. 1 Sprague, 103, note. See Mr. her again. The Florence, 16 Jur. 572;
Dana's argument in The Niphon, stated 20 E. L. & Eq. 607. In The Triumph, 1
ante, 188, n. 1. If the compensation is Sprague, 428, salvage was allowed when
given as wages, it is an exception to the the ship was abandoned near the shore by
general rule mentioned in the text. On all but one seaman, the salvor. Post, 246;
the other hand, the objection to treating 248, n. 1. In The John Perkins, sup., the
the sailors as salvors is that their services ship was left near the shore, with the in-
are not voluntary. Dr. Lushington has tention of watching her, and returning to
,followed Lord Stowell's doctrine that the her if practicable, and the sailors were
mariners' compensation is allowed as held not to be discharged from their con-
wages and not as salvage, in a case where tract so as to be entitled to salvage. The
the portions of the wrecked vessel which contract of the crew may be terminated
were preserved were saved not by the by a discharge given by the master after
exertions of the crew, but by third par- a wreck, although given in disregard of
ties. The Reliance, 2 Wm. Rob. 119. the owners' interest, if there was no fraud
See Worth v. Mumford, 1 Hilton, 1, 25; on the sailors' part, and they may then
The John Perkins, 21 Law Rep. 87, 91; earn salvage. The Warrior, Lush. 476.
The Holder Borden, 1 Sprague, 144; And salvage has been allowed eo nomine
Reed v. Hussey; The Franklin, Bl. & for services exceeding the duty owed to
Howl. 525, 543. But see The John Tay- the ship. The Mary Hale, Marvin on
lor, Newb. 341.
Salvage, § 149, p. 161.
[268]
LECT XLVI.]
* 196
OF PERSONAL PROPERTY.
intention of returning to possess and save it, the contract between
them and the owners is dissolved, and they lose their lien or
privilege for any equitable compensation, whether as wages or
salvage. Their claim is extinguished, and though other persons
may possess the property which had become derelict, it belongs
to the original owner, burdened with their claim for salvage. (b)
[9] When Wages are due. By the act of Congress, (c) one
third of the seamen's wages is due at every port where the ship
(b) Lewis v. The Elizabeth and Jane, District Court of Maine, Ware, 41.
(c) Act of Congress, 20th July, 1790, c. 29, sec. 6. The English statute law rela-
tive to seamen in the merchant service has been revised and improved by the statute
of 5 and 6 Wm. IV. c. 19, which has greatly bettered the condition, and secured the
protection of the rights of seamen. The provisions of the statute are commented
upon with learning, candor, and strong approbation, in the Law Magazine, No. 30,
art. 3, an article well worthy of the student's perusal. The act is entitled "An act
to amend and consolidate the laws relating to the merchant seamen of the United
Kingdom, and for forming and maintaining a register of all the men engaged in that
service." It repeals the acts of 2 and 3 Anne, 2 Geo. II., 2 Geo. III., 31 Geo. III., 37
Geo. III., 45 Geo. III., 58 Geo. III., 59 Geo. III., 4 Geo. IV., and 3 and 4 Wm. IV.
By sec. 2, no seamen to be taken to sea, without a written agreement signed by the
master and seamen. (3.) Form prescribed. (4.) Penalty for taking seamen to sea
without such articles. (5.) Agreement not to affect the seamen's lien for wages, and
all agreements contrary to the act void. (6.) If the seaman shall refuse to join the
ship or go to sea, or absent himself, he may be apprehended by warrant, and com-
mitted to the house of correction, at hard labor, for thirty days; though if he and the
master consent, he may be delivered on board, paying costs, to be abated from his
future wages. (7.) After the voyage has commenced, if the seaman wilfully absents
himself, he forfeits a ratable share of wages. (8.) Mode of ascertaining it when the
seaman contracts for the voyage. (9.) Forfeiture for absolute desertion. (10.) Pen-
alty for harboring deserters. (11.) Periods for payment of wages. (12.) Payments
valid, and no assignment or bill of sale of wages valid. (13.) When discharged, the
master to give a certificate of his service and discharge. (14.) Remedy for wages
by summons, &c., and the master forfeits £5 for default in prompt payment. (15.)
Summary mode of recovery of wages not exceeding £20. (16.) When no costs. (17.)
If ship be sold in a foreign port, the crew to be sent home at the expense of the
master or owner. (18.) If hurt in the service, to be helped gratis. (19.) A register
office is established. (21.) Masters of ships trading abroad, and in the home trade,
to deliver list of their crews on their return. (23.) Return to be made in cases of ship
lost or sold abroad. (25.) The consul takes charge of their effects, dying abroad.
(26 to 37.) Regulations as to parish boys put out apprentices in the sea service. (40.)
A misdemeanor to force on shore, or leave behind any of the crew. (41.) Seamen
not to be discharged abroad but under the sanction of a public functionary. (42.)
Not to be left abroad on any plea without such sanction. (44.) When allowed to be
left behind, to be paid their wages. (48.) Ship's agreement, on arrival at a foreign
port, to be left with the consul. (49.) No seaman to be shipped at a foreign port
without the privity of the consul. A corresponding summary is given of the Ameri-
ean regulations in Abbott on Shipping, 5th Am. ed. Boston, 1846, p. 223, note (1).
The substance of those regulations has been already mentioned in this volume, ante,
177-180. [A later English act is the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104.]
[269]
* 196
[PART V.
OF PERSONAL PROPERTY.
unlades and delivers her cargo, unless there be an express stipu-
lation to the contrary; and when the voyage is ended, and the
cargo or ballast fully discharged, the wages are due, and if not
paid within ten days thereafter, admiralty process may be insti-
tuted in rem against the ship. (d) But there is no fixed period
of time by the marine law within which mariners must pro-
ceed to enforce their lien for wages, though the lien may be
lost to the seamen and other privileged creditors by unreasona-
ble delay, and suffering the vessel to pass into the hands of a
bona fide purchaser ignorant of the claim. (e) 2 It does not,
(d) The law of England, in ordinary cases, requires the mariner to stay by the ship
till the discharge of the cargo, when the other party has done nothing to supersede the
existing contract. The Baltic Merchant, Edw. Adm. 86; The Cambridge, 2 Hagg.
Adm. 245, 246. In Cloutman v. Tunison, 1 Sumner, 373, Mr. Justice Story declared
the same general principle; but Judge Peters, in Hastings v. The Ship Happy Return,
1 Peters Adm. 253, was inclined to the opinion that the seamen were not bound to
unlade the ship after the voyage is ended, unless specially bound by the articles.
A spontaneous deviation of importance will entitle the seamen to their discharge;
but by the Danish and Dutch Marine Codes, though the master enlarges or alters
the voyage, he may compel the seamen to remain in the service, on a reasonable
addition to their wages. This is not the English law. Jacobsen's Sea Laws, 142;
Institutes of the Laws of Holland, by Vander Linden, 629. The usage in the United
States is to discharge the crew before unlading the vessel, and to employ other per-
sons to perform that service. It has now become one of the implied terms of the
contract. The voyage is ended when the vessel is safely moored at the wharf, and
then the ten days for the payment of the wages begin to run. But if, by the terms of
the contract or usage of the port, the seamen are bound to remain and assist in dis-
charging the cargo, then the ten days only begin to run from the discharge of the
cargo. When, in either case, the seamen are discharged, the wages are due. The
Mary, D. C. U. S. Maine District, August, 1838, Ware, 454. Judge Peters, in the
case of Edwards v. The Ship Susan, 1 Peters Adm. 167, adopted fifteen working days
as a reasonable time from the end of the voyage for the unlading of the cargo and
the payment of wages.
(e) Ware, 186, 212.
2 Time for enforcing Liens.-The text is
confirmed by The Scow Bolivar, Olcott,
474, 480. See The Lillie Mills, 1 Sprague,
307; post, 232, n. 1, (c). In the case of sea
going vessels it has been thought that the
lien should not generally be extended
beyond the next voyage as against inno-
cent purchasers. Leland v. The Medora,
2 Woodb. & M. 92, 100; The Dubuque, 2
Abbott, U. S. 20; 2 Chicago Legal News,
381. See The Boston, Bl. & How. 309.
With regard to vessels on the great lakes,
it has been thought a reasonable rule to
limit them to the season of navigation,
and not to extend them beyond one year.
The Buckeye State, Newb. 111; The Du-
buque, sup. But the lien may be enforced
after considerable lapse of time if no third
person has acquired any right to the ves-
sel, and the owner has not been injured
by the delay. The Canton, 1 Sprague,
437; Fisher v. The Galloway C. Morris,
27 Leg. Int. 204 (July 1, 1870). Bottomry
liens are required to be enforced within a
reasonable time in like manner. Royal
Arch, Swabey, 269, 284. [See 14 Wall
[270]
653.]
LECT. XLVI.]
* 197
OF PERSONAL PROPERTY.
like other liens, depend upon possession. Seamen's wages are
hardly earned, and liable to many contingencies, by which they
may be entirely lost, without any fault on their part. Few claims
are more highly favored and protected by law, and when due, the
vessel, owners, and masters are all liable for the payment of
them. (ƒ) The seamen need not libel the vessel, at the interme-
diate port where they are discharged. They may disregard
bottomry bonds, and pursue their lien for * wages after- *197
wards, even against a subsequent bona fide purchaser. It
follows the ship and its proceeds, into whose hands soever they
may come, by title or purchase, from the owner. Their demand
for wages takes precedence of bottomry bonds, and is preferred to
all other demands, for the same reason that the last bottomry bond
is preferred to those of a prior date. Their claim is a sacred lien ;
and as long as a single plank of the ship remains, the sailor is
entitled, as against all other persons, to the proceeds, as a security
for his wages, for by their labor the common pledge for all the
debts is preserved. (a) The seamen's lien exists to the extent of
the whole compensation due them. There is no difference between
the case of a vessel seized abroad and restored in specie or in
value; the lien reattaches to the thing, and to whatever is sub-
stituted for it. This is not only a principle of the admiralty, but
it is found incorporated into the doctrines of the courts of com-
mon law. (b) In the French law, the seamen's lien upon the
vessel is extinguished after a sale and a voyage, in the name and
at the risk of the purchaser; and the preference of the seamen's
claim is confined to the wages of the seamen employed in the last
voyage. (c)
1
(f) Pothier, Louage des Matelots, sec. 226; Abbott on Shipping, part 4, c. 4,
sec. 10; Wysham v. Rossen, 11 Johns. 72; Valin, i. 751; Wait v. Gibbs, 4 Pick.
298. In the case of the Betsey and Rhoda, in the District Court of Maine, 3 N. Y.
Leg. Obs. 215, [Daveis, 112,] very marked protection was thrown over the wages of
seamen. It was held, that a negotiable note, taken by a seaman for his wages, will
not extinguish his claim for wages, nor his lien against the ship, unless he be dis-
tinctly informed at the time that such would be the effect, and some additional
security or advantage be given him for renouncing his lien on the ship.
(a) Consulat de la Mer, c. 138; Valin's Comm. 2, 12; Madonna d'Idra, 1 Dods.
37; Sydney Cove, 2 id. 11; The Ship Mary, 1 Paine, 180; Sheppard v. Taylor, 5
Peters, 675; Brown v. Lull, 2 Sumner, 443, 452; Pitman v. Hooper, 3 id. 51.
(b) Sheppard v. Taylor, 5 Peters, 675.
(c) Ord. de la Mar. tit. De la Saisie des Navires, art. 16; De l'Engagement, art.
1 The Amelie, 6 Wall. 18, 30; ante, 174, n. 1.
[271]
* 198
[PART V.
OF PERSONAL PROPERTY.
* 198
*
Desertion
[10] Desertion and Forfeiture of Wages.
from the ship without just cause, and animo non revertendi,
or the justifiable discharge of a seaman by the master for bad
conduct, will work a forfeiture of the wages previously earned;
and this is a rule of justice and of policy which generally pervades
the ordinances of the maritime nations. By the English statute
law, (a) and by the act of Congress, (b) desertion is accompanied
19; Code de Commerce, arts. 191, 193. The Commercial Code of Napoleon settles the
order and rights of privileged debts much more fully and precisely than the marine
ordinance of Louis XIV.; and this priority in favor of seamen's wages pervades
both the maritime ordinances. See supra, 168. The venerable code of the Conso-
lato del Mare, c. 138, expressed itself on the subject with the energy of Lord Stowell,
when it declared, that mariners must be paid before all mankind, and that if only a
single nail of the ship was left, they were entitled to it. Consulat de la Mer, par
Boucher, ii. 205. See also Cleirac upon the Judgments of Oleron, art. 8, n. 31;
and Boulay-Paty, Cours de Droit Com. i. 115. The preference given to seamen for
their wages, over all other claims, upon the ship and freight, is the universal law of
maritime Europe. The wages of seamen are a lien on the vessel and freight, and
even on the cargo to the amount of the freight due upon it. The seaman has no lien on the
cargo as cargo, it is on the ship, and on the freight as appurtenant thereto; and so
far as the cargo is subject to freight, he may attach it as security for the freight that
may be due. The Lady Durham, 3 Hagg. Adm. 200. When the general owner,
and when the hirer of the ship for the voyage, are personally liable to the mariners
for their wages, see the cases, and the examination of them, in Curtis's Treatise on
the Rights and Duties of Merchant Seamen, 326-336. The master has his lien on
the cargo for his freight. The cargo is hypothecated for the freight, and the freight
is hypothecated for the seaman's wages. The lien on the freight is not taken away
by the statute of the United States, allowing to seamen process against the vessel.
See Poland v. The Brig Spartan, in the District Court of Maine, 1 Ware, 134, and
The Paragon, ib. 330, 331, where the question as to the extent of the lien of seamen
for their wages is learnedly discussed.
(a) 11 and 12 William III. c. 7, and 2 George II. c. 36. See, also, The Jupiter, 2
Hagg. Adm. 221.
(b) Act of Congress, 20th July, 1790, c. 29, secs. 2, 5. In Cloutman v. Tunison,
1 Sumner, 373, Judge Story held, that by the maritime law, the voyage is ended
when the ship has arrived at her port of destination, and is safely moored, though
her cargo be not delivered, and desertion afterwards does not forfeit the wages at
large, but a partial forfeiture may be decreed by way of compensation for breach of
duty. So, in another case, Judge Hopkinson held, that if a seaman leaves the vessel
after she is moored at the wharf, at the last port of delivery, and before the discharge
of the cargo, he forfeits a ratable deduction from his wages. To subject the seaman
to the forfeiture of his wages, under the act of Congress of 1790, the entry in the log
book, on the day of the absence, is indispensable. Knagg v. Goldsmith, Gilpin, 207 ;
ib. 219; Cloutman v. Tunison, 1 Sumner, 373; The Rovena, Ware, 309; The Bul-
mer, 1 Hagg. Adm. 163; The Pearl, 5 C. Rob. 224; The Baltic Merchant, Edw.
Adm. 86. Quitting the ship before the voyage is ended is desertion; but quitting
her afterwards, and before the unlivery of the cargo, is a mere absence. The for-
feiture of wages is not so absolute and total in the one case as in the other. The act
[ 272 ]
LECT. XLVI.]
* 199
OF PERSONAL PROPERTY.
with a forfeiture of all the wages that are due, and an absence of
forty-eight hours without leave is made conclusive evidence of
desertion; and whatever unjustifiable conduct will warrant the
act of the master in discharging a seaman during the voyage will
equally deprive the seaman of his wages. But the forfeiture is
saved if the seaman repents, makes compensation or offer of
amends, and is restored to his duty. (c) Public policy and private
justice here move together, and the maritime ordinances unite
in this conclusion. The master has power to remit a forfeiture,
and the penalty of forfeiture is not applied to slight faults, either
of neglect or disobedience. There must be either an habitual
neglect, or disobedience, or drunkenness, (d) or else a single act
of gross dishonesty, or some other act of a heinous and aggravated
nature, to justify the discharging a seaman in a foreign port, or
the forfeiture of wages; nor will the admiralty courts, except in
cases of great atrocity, visit the offences of seamen with the cumu-
lated load of forfeiture of wages and compensation in damages.
They stop at the forfeiture of the wages antecedently earned,
and in the application of the forfeiture, the advance wages
are made a charge on the * forfeited wages, but the hospital *199
money is apportioned ratably on the wages for the whole
voyage. In these regulations the moderation of the courts, and the
solicitude which the peculiar condition and character of seamen
excite, are equally manifest. (a) So, if the seaman quits the
ship involuntarily, or is driven ashore from necessity, from
of Congress of 20th July, 1790, c. 56, secs. 2, 5, 7, makes a distinction between wil-
ful absence of a seaman after he has signed the articles, and before the commence-
ment of the voyage, and the like absence after the voyage has commenced. In the
first case he forfeits wages, clothing, and damages, and in the latter case he is liable
to be arrested as a deserter, and to be imprisoned. Cotel v. Hilliard, 4 Mass. 664;
Curtis's Tr. on Seamen in the Merchant Service, 132–136, 140, 141.
(c) The master is bound, in such a case, to receive back the seaman, as a case fit
for condonation, unless his previous misconduct would justify a discharge. Clout-
man v. Tunison, 1 Sumner, 373, s. p.; Coffin v. Jenkins, 3 Story, 108.
(d) Lady Campbell, 2 Hagg. Adm. 5; The Malta, ib. 168; The Blake, before
Dr. Lushington, July, 1839, [1 Wm. Rob. 73;] Am. Jurist for April, 1841, 205.
(a) Whitton v. The Brig Commerce, 1 Peters Adm. 160; Thorne v. White, ib. 175;
Relf v. The Maria, ib. 186; The Ship Mentor, 4 Mason, 84, 102; The Malta, 2 Hagg.
Adm. 159; The Susan, ib. 229, note; Hutchinson v. Coombs, District Court of Maine,
1 Ware, 65. In the case of the Ship Mentor, Mr. Justice Story made some practical
regulations as to the disposition of the forfeited wages, and he did not consider it to
be a settled rule, that even the commission of the offence of endeavoring to make a
revolt was in all cases to be visited with a total forfeiture of wages. Though a sea-
18
[ 273 ]
VOL. III.
* 199
[PART V.
OF PERSONAL PROPERTY.
want of provisions, or by reason of cruel usage and for personal
safety, the wages are not forfeited, and he will be entitled to
receive them in full to the prosperous termination of the voy-
age. (b)¹ On the other hand, it is the duty of the seamen to
abide by the vessel as long as reasonable hope remains; and if
they desert the ship under circumstances of danger or distress
1
man be justly discharged during the voyage for disobedience of orders, it was said,
by Dr. Lushington, in the case of the Blake, in the Admiralty (July, 1839), [1 W.
Rob. 73,] to be a very infirm test of the fitness of depriving him of his wages. Wages
may be forfeited where the disobedience of orders is to such an extent as to render
the discharge of the seaman imperatively necessary to the safety of the ship, and
the due preservation of discipline. Where a seaman was sent home from a foreign
port, in irons, by order of the American consul, for bad conduct of an aggravated
character, and was therefore disabled, by his own fault, from the performance of his
duty, his wages were deemed forfeited. Smith v. Treat, District Court of Maine,
1845, [Daveis, 266; 4] New York Legal Observer for January, 1846.
(b) Jugemens d'Oleron, art. 13; Limland v. Stephens, 3 Esp. 269; The Favorite,
2 C. Rob. 232; Bell's Comm. c. 4, secs. 1, 4; Sherwood v. McIntosh, Ware, 109; Rice
v. The Polly and Kitty, Peters Adm. 420; Magee v. The Moss, Gilpin, 219. Refusal
to proceed on a voyage not designated by the articles is not such a desertion as works
a forfeiture. 1 Hagg. [Adm.] 182, 248, 347. So, if the master has an avowed inten-
tion to go on a different voyage previous to the completion of a voyage for which a
seaman had signed the shipping articles, such an intended departure will be sufficient
to justify the seaman leaving the ship and suing for his wages during the time he
served on board. Hayward v. Maine, Kerr, N. B. 292.
1 Desertion and Forfeiture of Wages.
The text is confirmed by Edward v. Trev-
ellick, 4 El. & Bl. 59; Bush v. The Alonzo,
2 Clifford, 548; Knowlton v. Boss, 1
Sprague, 163; Hunt v. Colburn, ib. 215;
Sheffield v. Page, ib. 285; 2 Curtis, 377;
The America, Blatchf. & H. 185; Fitzsim-
mons v. Baxter, 3 Daly, 81. So in case of
deviation, sup., note (b); see The Brig
Cadmus v. Matthews, 2 Paine, 229; The
Mary Ann, Abbott Adm. 270; Piehl v. Bal-
chen, Olcott, 24; The Becherdass Ambai-
dass, 1 Lowell, 569, 6 Am. Law Rev. 74
(commenting on Bucker v. Klorkgeter,
Abbott Adm. 409); or provisions so bad
as to be positively unfit for the men's sup
port; Ulary v. The Washington, Crabbe,
204; or unseaworthiness of the ship; Sav-
ary v. Clements, 8 Gray, 155; ante, 178, n.
which the seamen may prove, notwith-
standing the fact that when they de-
manded to leave on that ground, she was
1;
reported seaworthy by marine surveyors.
Bucker v. Klorkgeter, Abbott Adm. 402.
The defence of desertion often depends
on the validity of the articles, and as
British shipping articles generally give a
very loose description of the nature of the
voyage, and the American courts con-
strue the requirements of British law
pretty strictly, desertion from British
ships is very common in some of the
ports on the Atlantic coast. Ante, 185,
n. 1. In some cases the British con-
sul has interposed and protested against
the court's taking jurisdiction; and it has
been held in the admiralty that when the
sailor shipped for a voyage ending in a
home port, his protest would be respected
in the absence of special circumstances,
such as a clear deviation, cruelty, or the
breaking up of the voyage, although the
court might doubt the validity of the
articles. The Becherdass Ambaidass, 1
[ 274]
LECT. XLVI.]
* 199
OF PERSONAL PROPERTY.
---
from perils of the sea, when their presence and exertions might
have prevented damage, or restored the ship to safety, they forfeit
their wages, and are answerable in damages. (c) And even when
a seaman might well have been discharged in the course of the
voyage, for gross misbehavior, if the master refuses to discharge
him, and leaves him in imprisonment abroad, he will, in that case,
be entitled to his wages until his return to the United States after
deducting from the claim his time of imprisonment. (d)
(c) Sims v. Mariners, Peters Adm. 395; The Dawn, in the District Court of Maine,
February, 1841, reported in [Daveis, 121;] American Jurist for October, 1841, 216.
(d) Buck v. Lane, 12 Serg. & R. 266. If a seaman leaves the ship without just
cause, the master may enter the desertion in the log book, under the act of Congress
of 1790, which will work a forfeiture of wages antecedently due; or he may have the
seaman imprisoned until the vessel is ready to sail, and then the contract continues,
and the wages go on. The imprisonment is the punishment. Brower v. The Maiden,
Gilpin, 294. By the Treaty of Commerce and Navigation between the United States
and the Kingdom of Hanover, May 20, 1840, art. 6, and between United States and
Portugal, of 23d April, 1841, art. 11, consuls, vice-consuls, and commercial agents
were authorized to require the assistance of the local authorities for the search, arrest,
and imprisonment of deserters from the ships of war and merchant-vessels of their
country. Application is to be made in writing, with the exhibition of the registers
of the vessels, muster-rolls, or other official documents, proving that such individuals
formed part of the crews; and then the surrender is not to be refused. The deserters
to be placed at the disposal of the consuls, &c., and confined in the public prisons, at
the request and cost of those claiming them, in order to be sent to the vessels, &c.;
no such imprisonment to exceed four months.
In the examination of the maritime law concerning seamen, I have been led to
consult, very frequently, the admiralty decisions in the District Court of Pennsyl-
vania; and I feel unwilling to take my leave of this branch of the subject without
expressing my grateful sense of the obligation which the profession and the country
Lowell, 569; 6 Am. Law Rev. 74; The
Robert Ritson, ib. 79, note. See The
Nina, L. R. 2 P. C. 38; s. c., L. R. 2 Ad.
& Ec. 44; The Maggie Hammond, 9 Wall.
435, 452, 457.
In the Nina, sup., there was an express
agreement to be bound by the law of the
ship, according to which the controversy
should have been referred to the consul
for determination. See Freeman v. Baker,
Blatehf. & How. 372, 380. So, again,
agreements not to sue except in a home
court have been held good. Gienar v.
Meyer, 2 H. Bl. 603; Johnson v. Machiel-
sen, 3 Camp. 44; Olzen v. Schierenberg,
* Daly, 100; in this case it seems to be
considered that courts of common law
have the same discretion as the admiralty
court has always exercised, with regard
to taking jurisdiction of suits between
foreign seamen and masters for acts done
on the high seas. What would be the
effect of a statute like 17 & 18 Vict. c. 104,
§ 190 (prohibiting seamen engaged for a
voyage which terminates in the United
Kingdom to sue abroad, except, &c.), in
foreign courts, when not expressly incor-
porated in the articles, remains to be de-
termined. It is not wholly clear why the
law under which the contract is made is
not as much a part of the contract as a
custom would be. But see Maclachlan on
Shipping, 235; Madonna D’Idra, 1 Dods.
37, 41.
[275]
* 199
[PART V.
OF PERSONAL PROPERTY.
at large are under to the venerable author of those decisions. They discover a
familiar acquaintance with the maritime ordinances of continental Europe, those
abundant fountains of all modern nautical jurisprudence. They have investigated
the sound principles which those ordinances contain, in a spirit of free and liberal
inquiry; and they have uniformly discussed the rights and claims of mariners, under
the influence of a keen sense of justice, a strong feeling of humanity, and an ele-
vated tone of moral sentiment.
[276]
LECT. XLVII.]
OF PERSONAL PROPERTY.
* 202
LECTURE XLVII.
OF THE CONTRACT OF AFFREIGHTMENT.
1. Of the Charter Party and its Conditions. —A charter party is
a contract of affreightment in writing, by which the owner of a
ship lets the whole, or a part of her, to a merchant, for the con-
veyance of goods on a particular voyage, in consideration of the
payment of freight.
All contracts under seal were anciently called charters, and
they used to be divided into two parts, and each party interested
took one, and this was the meaning of the charta partita. It
was a deed or writing, divided, consisting of two parts, like an
indenture at common law. (a) Lord Mansfield observed, that
the charter party was an old informal instrument, and by the
introduction of different clauses at different times, it was inac-
curate, and sometimes contradictory. But this defect has been
supplied, by giving it, as mercantile contracts usually receive, a
liberal construction, in furtherance of the real intention and the
usage of trade.
•
* This mercantile lease ¹ of a ship describes the parties, *202
the ship, and the voyage, and contains on the part of the
(a) Butler, n. 138, to lib. 3, Co. Litt.; Pothier's Charter Party, by C. Cushing,
n. 1; Valin's Comm. i. 617. The translation of Pothier's Treatise on Maritime Con-
tracts, by Mr. C. Cushing, and published at Boston, in 1821, is neat and accurate,
and the notes which are added to the volume are highly creditable to the industry
and learning of the author. But the work was limited to the treatises on Charter
Party, Average, and Hiring of Seamen. It would contribute greatly to the circula-
tion and cultivation of maritime law in this country, if some other treatises of Pothier,
and also the Commentaries of Valin, could appear in an English dress.
Since the third edition of this work, Mr. L. S. Cushing has published, at Boston,
a translation of Pothier's Treatise on the Contract of Sale; and if duly encouraged,
as we hope and trust he will be, he promises a translation of the other excellent trea-
tises of Pothier on the various commercial contracts.
1 As to when it is a lease and when not, see 138 and n. 1.
[ 277 ]
* 202
[PART V.
OF PERSONAL PROPERTY.
owner a stipulation as to seaworthiness, and as to the promptitude
with which the vessel shall receive the cargo and perform the
voyage; and the exception of such perils of the sea for which the
master and ship owners do not mean to be responsible. (a) On
the part of the freighter, it contains a stipulation to load and
unload within a given time, with an allowance of so many lay,
or running days, for loading and unloading the cargo, and the
rate and timeș of payment of the freight, and rate of demurrage
beyond the allotted days. (b)
When the goods of several merchants, unconnected with each
other, are laden on board, without any particular contract of
affreightment with any individual for the entire ship, the vessel
is called a general ship, because open to all merchants; but when
one or more merchants contract for the ship exclusively, it is said
to be a chartered ship. The ship may be let in whole or in part,
and either for such a quantity of goods by weight, or for so much
space in the ship, which is letting the ship by the ton. She may
also be hired for a gross sum as freight for the voyage, or for a
particular sum by the month, or any other determinate period, or
for a certain sum for every ton, cask, or bale of goods put on
board; and when the ship is let by the month, the time does not
begin to run until the ship breaks ground, unless it be otherwise
agreed. (c) The merchant who hires a ship may either lade it
with his own goods, or wholly underlet it upon his own terms;
and if no certain freight be stipulated, the owner will be entitled
to recover, upon a quantum meruit, as much freight as is usual
under the like circumstances, at the time and place of the ship-
ment. (d)
(a) The usual form of the charter party contains the exception to the owner's
and master's responsibility, of the "acts of God, or public enemies, detentions and
restraints of kings, princes, rulers, and republics, fire, the dangers and accidents
of the seas, rivers, and navigation, and all other unavoidable dangers and acci-
dents."
(b) Abbott on Shipping, 5th Am. ed. Boston, 1846, part 4, c. 1 secs. 1, 2, 3, 5.
The master may let the ship by charter party in a foreign port, as agent of the
owner, and without his knowledge; but in the home port, or residence of the own-
ers, their assent is requisite to bind. It is not an incident to the general authority
as master, and there must be peculiar circumstances to presume such a superadded
agency. Pothier, Charte-Partie, n. 48. The Schooner Tribune, 3 Sumner, 144,
149.
(c) Pothier, Charte-Partie, n. 4; Abbott on Shipping, 5th Am. ed. part 4, c. 1.
(d) Pothier, Charte-Partie, n. 8; Abbott on Shipping, ib.; Hunter v. Fry, 2 B. &
Ald. 421.
[278]
LECT. XLVII.]
* 203
OF PERSONAL PROPERTY.
* It is the duty of the owner of the ship not only to see * 203
that she is duly equipped, and in a suitable condition to
perform the voyage, but he is bound to keep her in that condition
throughout the voyage, unless he be prevented by perils of the
sea. (a) If, in consequence of a failure in the due equipment of
the vessel, the charterer does not use her, he is not bound to pay
any freight; but if he actually employs her he must pay the freight,
though he has his remedy on the charter party for damages sus-
tained by reason of the deficiency of the vessel in her equip-
ment. (b) The freighter is bound on his part not to detain the
ship beyond the stipulated or usual time, to load, or deliver the
cargo, or to sail. The extra days beyond the lay days (being
the days allowed to load and unload the cargo) are called days
of demurrage; and that term is likewise applied to the payment
for such delay, and it may become due by the ship's detention,
for the purpose of loading or unloading the cargo, either before,
or during, or after the voyage, or in waiting for convoy. (c) If
the claim for demurrage rests on express contract, it is strictly
enforced, as where the running days for delivering the cargo
under the bill of lading had expired, even though the consignee
was prevented from clearing the vessel of the goods by the
default of others. (d) 1
The old and the new French codes of commerce require the
charter party to be in writing, though Valin holds that the con-
tract, if by parol, would be equally valid and binding. (e)
(a) Putnam v. Wood, 3 Mass. 481; Ripley v. Scaife, 5 B. & C. 167.
(b) Havelock v. Geddes, 10 East, 555.
(c) Lawes on Charter Parties, 130. Sunday is included (in the absence of cus-
tom) in the computation of the lay days at the port or discharge. Brown v. Johnson,
10 M. & W. 331. The running days in charter parties mean consecutive days, and
include Sundays and holidays. But if the contract speaks of working days, Sundays
and holidays are excluded. Cochran v. Retberg, 3 Esp. 121; Brown v. Johnson, sup.;
Field v. Chase, Sup. Court, N. Y. 1844, 3 N. Y. Legal Observer, 8.
(d) Leer v. Yates, 3 Taunt. 387; Harman v. Gandolph, Holt N. P. 35. The argu-
ment is fairly stated, and this rigorous rule ably vindicated, by Mr. Holt, in a note to
the case last referred to, and that note was afterwards transferred to his Treatise on
Shipping, ii. 17, note.
(e) Ord. de la Mar. liv. 3, tit. Des Charte-Parties, art. 1, and Valin's Comm. ib.
Code de Commerce, art. 273. The contract for demurrage beyond the lay days is
frequently an express covenant in a charter party, binding the cargo for the perform-
ance of the covenant to pay demurrage, as well as of the covenant to pay freight; and
1 See 206, n. 1.
1
[ 279]
* 205
[PART V.
OF PERSONAL PROPERTY.
1
* 204- * In the English law, the hiring of ships without writing
is undoubtedly valid; but it would be a very loose and
dangerous practice, at least in respect to foreign voyages. In
the river and coasting trade there is less formality and less neces-
sity for it; and the contract is, no doubt, frequently without the
evidence of deed or writing. (a)
If either party be not ready by the time appointed for loading
the ship, the other party, if he be the charterer, may seek another
ship, or, if he be the owner, another cargo. This right arises
from the necessity of precision and punctuality in all maritime
transactions. By a very short delay, the proper season may be
lost, or the object of the voyage defeated.2 And if the ship be
loaded only in part, and she be hired exclusively for the voyage,
and to take in a cargo at certain specified rates, the freighter is
entitled to the full enjoyment of the ship; for he is answerable
to the owner for freight, not only for the cargo actually put on
board, but for what the vessel could have taken, had a full cargó
been furnished. (b) The master has no right to complete the
lading with the goods of other persons without the consent of
the charterer; and if he grants that permission, the master must
account to him for the freight. He has no right to complain, if
the charterer refuses to grant the permission, or complete the
lading, provided he has cargo enough to secure his freight.
This was the regulation of the French ordinance, and it has been
adopted into the new code. (c)
By the contract, the owner is bound to see that the ship be
seaworthy, which means that she must be tight, stanch, and
strong, well furnished, manned, victualled, and, in all
*205 * respects, equipped in the usual manner for the merchant
service in such a trade. (a) The ship must be fit and
the lien is the same in both cases, unless subsequently waived by some explicit act
on the part of the owner. See the case of the Volunteer, 1 Sumner, 551. [Post, 206
n. 1.]
(a) Molloy, de Jure Mar. b. 2, c. 4, sec. 3; Boulay-Paty, ii. 268, 269.
(b) Duffie v. Hayes, 15 Johns. 327.
(c) Ord. du Fret, art. 2; Pothier, Charte-Partie, n. 20, 21, 22, 24, 25; Code de
Commerce, n. 287.
(a) Emerigon, i. 373, 374, 375; Abbott on Shipping, 5th Am. ed. Boston, 1846,
pp. 417-421. [See The Sarah, 2 Sprague, 31.]
¹ Lidgett v. Williams, 4 Hare, 456, 462.
2 206, n. 1.
[ 280]
LECT. XLVII.]
* 206
OF PERSONAL PROPERTY.
1
competent for the sort of cargo and the particular service for
which she is engaged. If there should be a latent defect in the
vessel, unknown to the owner and undiscoverable upon examina-
tion, yet the better opinion is, that the owner must answer for
the damage occasioned by the defect. It is an implied warranty
in the contract, that the ship be sufficient for the voyage, and
the owner, like a common carrier, is an insurer against every
thing but the excepted perils. (b)¹ To this head of seaworthi-
ness may be referred the owner's obligation to see that the ship
is furnished with all the requisite papers according to the laws
of the country to which she belongs, and according to treaties
and the laws of nations. Such documents are necessary to secure
the vessel from disturbance at home, on the high seas, and in
foreign ports. (c) If the charter party contains any stipulation
on the part of the owner to keep the ship in good order during
the voyage, the entire expense of the repairs requisite in the
course of the voyage are then to be borne by the owner,
and are not, in that case, the *subject of general average *
* 206
or contribution. (a) But the owner does not insure the
cargo against the perils of the sea. He is answerable for his own
fault or negligence, or those of his agents, and for defects in the
ship or her equipments, and generally, as a common carrier, he is
answerable for all losses other than what arise from the excepted
cases of the act of God, and public enemies. (b) The responsi-
bility of the owner begins where that of the wharfinger ends, and
when the goods are delivered to some accredited person on board
(b) Lyon v. Mells, 5 East, 428; Putnam v. Wood, 3 Mass. 481; Silva v. Low, 1
Johns. Cas. 184; Whitall v. The Brig William Henry, 4 La. 223; Ord. de la Mar.
iv. 3, tit. 3, Du Fret, art. 12; Pothier, Charte-Partie, n. 27. Valin, Comm. h. t.,
зays (and in this he agrees with the English law), that the owner is answerable, on
his contract, for latent defects, even though the ship had been previously visited by
experienced shipwrights, and the defect had escaped detection; though Pothier
(Charte-Partie, n. 30) dissents from this opinion of Valin, so far as it relates to latent
defects unknown to the owner.
(c) Abbott on Shipping, 5th Am. ed. Boston, 1846, p. 427; Baring v. The Royal
Exchange Assurance Company, 5 East, 99; The Same v. Christie, ib. 398; Baring
v. Claggett, 3 Bos. & P. 201; Lothian v. Henderson, 'ib. 499; Ord. de la Mar. liv. 3,
tit. 1, Charte-Parties, art. 10; Valin, Comm. h. t. The ship must be provided with
a bill of health, when it is requisite, at the port of destination. Levy v. Costerton, 4
Camp. 389; s. c. 1 Starkie, 212.
(a) Jackson v. Charnock, 8 T. R. 509.
(b) See ii. 597–607.
1 See 217, n. 1.
[281]
;
*206
[PART V.
OF PERSONAL PROPERTY.
the ship. (c)
skill, and be
1
The cargo must be taken on board with care and
properly stowed, and the contract by the bill of
(c) Cobban v. Downe, 5 Esp. 41.
1 The Charter Party.— (a) Beginning of
the Risk. The owner's liability attaches
if the goods are delivered to the owner's
servants alongside the vessel. British
Columbia Saw Mill Co. v. Nettleship, L.
R. 3 C. P. 499. And the liability of the
vessel begins at the same moment. The
Bark Edwin, 1 Sprague, 477; s. c. 24
How. 386; The Pacific, 1 Blatchf. 569,
586; The Cordillera, 5 Blatchf..518; (for
the limit, see The Lady Franklin, 8 Wall.
325; and the point decided in The General
Sheridan, 2 Benedict, 294.) Although, of
course, neither owner nor vessel will be
liable if the goods are delivered without
any previous understanding or contract to
a servant who has no real or apparent
authority to make one or to receive the
goods. Trowbridge v. Chapin, 23 Conn.
595. See Grosvenor v. N. Y. C. R.R., 39
N. Y. 34. See, further, The Keokuk, 9
Wall. 517.
(b) Stevedore. It is a very common
It is a very common
stipulation that the charterer's stevedore
shall be employed by the ship. This gives
the charterers an option, and if they choose
to exercise it, it is the master's duty to
employ and pay the stevedore so ap-
pointed; if they do not, the master is not
on that account discharged from his duty
to properly load the ship. Anglo-African
Co. v. Lamzed, L. R. 1 C. P. 226; Har.
& Ruth. 216. In one case where the
charterers did appoint him it was held
that the master was not liable to a mer-
chant sending goods on board a general
ship for damage by the stevedore's negli-
gence. Blaikie v. Stembridge, 6 C. B.
N. s. 894; ante, 161, n. 1. So the ship has
been exonerated from liability for dam-
age done to the cargo in discharging it by
the stevedore, on the ground that he was
the agent of the shippers. The Miletus,
5 Blatchf. 335. But the owners have
been held liable on the construction of
the charter party. Sack v. Ford, 13 C.
B. n. s. 90.
(c) Time in Charter Parties. - Demur-
rage means the additional period during
which the vessel may remain by agree-
ment of the parties, and does not include
the time during which she is detained con-
trary to agreement, according to Gray v.
Carr, L. R. 6 Q. B. 522, 528, 544. See
Clendaniel v. Tuckerman, 17 Barb. 184;
Morse v. Pesant, 2 Keyes, 16; but see
Sprague v. West, Abbott, Adm. 548. The
whole doctrine of the English courts was
criticised by Judge Lowell, in The Hype-
rion's Cargo, 2 Lowell,
; and a pro-
ceeding against the cargo for unliquidated
damages by way of demurrage was sus-
tained.
When the charter party is silent, as it
rests exclusively on the merchant to pro-
cure the cargo, the law would imply a
contract to do so within a reasonable
time after the vessel is ready to receive
cargo; and unless the contract is framed
with reference to a peculiar state of
things (Harris v. Dreesman, 23 L. J. N. 8.
Ex. 210), reasonable time means what
would be such under ordinary circum-
stances, and peculiar difficulties which
may have arisen from the mode in which
the merchant has procured the cargo are
not to be considered. Ford v. Cotes-
worth, L. R. 4 Q. B. 127, 135; (citing
Adams v. Royal M. S. P. Co., 5 C. B.
N. s. 492; Kearon v. Pearson, 7 Hurlst. &
N. 386.) When a time is mentioned, it is
a question of construction whether it is of
the essence of the contract, or, in other
words, a warranty, and therefore a condi-
tion precedent. Post, 282, n. 1; Mac-
Andrew v. Chapple, L. R. 1 C. P. 643,
647; Seeger v. Duthie, 8 C. B. N. s. 45, 64.
As to contracts on the part of the
owner,see Tarrabochia v. Hickie, 1 Hurlst.
& N. 183; Behn v. Burness, 3 Best & S.
[ 282 ]
LECT. XLVII.]
* 206
OF PERSONAL PROPERTY.
lading imports that the goods are to be safely stowed under deck,
and if they are stowed on deck without the consent of the ship-
per, or without the sanction of custom, they are at the risk of the
ship owner or master, and he and the owners of the vessel would
not be protected from liability for their loss by the exception in
the bill of lading of the dangers of the seas. (d) If the ship had
been advertised by the agent of the owner for freight as a gen-
eral ship, and the notice had stated that she was to sail with
convoy, this would amount to an engagement to that effect;
and if she sails without convoy and be lost, the owner becomes
(d) Code de Commerce, art. 229; Valin, Comm. i. 397; The Paragon, Ware, 322;
The Waldo, District Court of Maine, 1841, [Daveis, 161]; Gould v. Oliver, 2 Mann.
& G. 208; The Rebecca, Ware, 188; Barber v. Brace, 3 Conn. 9; Dorsey v. Smith, 4
La. 211; Shackleford v. Wilcox, 9 La. 33. If goods are put on board a vessel without
the knowledge of the master, he may put them ashore, for there is no implied contract
of affreightment. But if they are not discovered until he sails, the better opinion is,
751; Lowber v. Bangs, 2 Wall. 728;
Dimech v. Corlett, 12 Moore, P. C. 199;
Yates v. Duff, 5 C. & P. 369; Cranston v.
Marshall, 5 Exch. 395; Cobb v. Howard,
3 Blatchf. 524; Ollive v. Booker, 1 Exch.
416; infra, n. 2.
in the charter party about the time to be
occupied in the discharge, it was held that
the owner could not recover of the char-
terer for the delay. Ford v. Cotesworth,
L. R. 4 Q. B. 127, 134; L. R. 5 Q. B.
544. Compare Clendaniel v. Tuckerman,
As to the law by which charter parties 17 Barb. 184; Morse v. Pesant, 2 Keyes,
are construed, see 164, n. 1.
Delivering cargo is as much the duty
of the ship owner as of the merchant;
and, consequently, the contract implied
by the law, in the absence of any stipula-
tion, in a charter party, is that each party
shall use reasonable diligence in perform-
ing his part of delivery at the port of dis-
charge, not that either shall perform his
part within a fixed or reasonable time.
There is no contract implied by law on
the part of the ship owner to allow his
vessel to be kept there for the usual time,
if by reasonable diligence on the part of
the merchant the cargo might be sooner
taken away, and none on the part of the
merchant to take the cargo out within
such usual time, if he could not by rea-
sonable diligence perform it. In a case
where, after a ship had begun to dis-
charge, the authorities had refused to
allow any more of the cargo to be landed
for several days, on account of a threat
ened bombardment, and nothing was said
16; Cross v. Beard, 26 N. Y. 85.
(d) Obligations. The owners are not
bound to take goods of such a condition
or character that they cannot be carried
without damage to the cargo already on
board; and all that is required of a mas-
ter competent for his office in determin-
ing whether they are of that character is
that he shall exercise an honest and rea-
sonable judgment. Boyd v. Moses, 7 Wall.
316; citing Weston v. Minot, 3 Woodb. &
M. 436; Weston v. Foster, 2 Curtis, 119;
post, 217, n. 1; 218, n. 2. See Parrott v.
Barney, 2 Abbott, U. S. 197, 222.
(e) Discharge. In a charter party by
which a ship is to proceed to a certain
place, and load for the specified voyage,
it is said that both parties are discharged
if the ship perishes on her way to fetch
the cargo. Potter v. Rankin, L. R. 5 C.
P. 341, 371; but not by a change of mili-
tary operations which defeats the pur
pose of the intended voyage. The Harri-
man, 9 Wall. 161; post, 224. Cf. ii. 468,
n. 1.
[283]
* 207
[PART V.
OF PERSONAL PROPERTY.
answerable to the shipper in damages for the breach of that
representation. (e)²
2. Of the Bill of Lading. In execution of the contract of charter
party, the master of the ship signs a bill of lading, which is an
acknowledgment of the receipt of the goods on board, and of the
conveyance of them which he assumes. The bill of lading con-
tains the quantity and marks of the merchandise, the names
*207 of the * shipper and consignee, the places of departure and
discharge, the name of the master and of the ship, with
the price of the freight. The charter party is the contract for
the hire of the ship, and the bill of lading for the conveyance
of the cargo; and though it be signed by the master, he does it as
agent for the owners, and it is a contract binding upon them. (a) ¹
1
that the master is not to leave them at an intermediate port without necessity, but to
carry them to the port of destination. Ord. du Fret, art. 7; Pothier, de Charte-Partie,
n. 10-12. Code de Commerce, n. 292; Boulay-Paty, ii. 373; The Huntress, District
Court of Maine, 1840, [Daveis, 82.]
(e) Runquist v. Ditchell, 3 Esp. 64; Magalhaens v. Busher, 4 Camp. 54.
(a) Beawes's Lex Mercatoria, 133, 142; Ferguson v. Cappeau, 6 Harr. & J. 394.
See Abbott on Shipping, 5th Am. ed. Boston, 1846, 396-417, the cases cited and con-
sidered at large on this subject.
2 Sup. n. 1. Other cases on warranty
are Hurst v. Usborne, 18 C. B. 144; Bar-
ker v. Windle, 6 El. & Bl. 675; Routh v.
Macmillan, 2 Hurlst. & C. 750.
—
1 The Bill of Lading. The effect of
a bill of lading as a contract, when it
contains terms not authorized by the
charter party, has already been consid-
ered as between the original parties to it.
138, n. 1.
If a bill of lading comes to the hands
of an assignee for value, he is entitled to
have the goods delivered to him on the
terms mentioned in it, and is not bound
to refer to the charter party, unless the
bill of lading shows a clear intention to
include some of the terms of the charter
party. Fry v. Chartered Mercantile Bank
of India, L. R. 1 C. P. 689; Chappel v.
Comfort, 10 C. B. N. 8. 802, 810, per
Willes, J.; Foster v. Colby, 3 Hurlst. &
N. 705; The Norway, Brown. & Lush.
226, 239; Gray v. Carr, L. R. 6 Q. B. 522,
538; Bags of Linseed, 1 Black, 108. As
to the effect of a receipt indorsed on the
bill upon the lien for freight, see 228,
n. 1, (d).
The master's declarations in a bill of
lading as to the apparent nature, quality,
and condition of goods on board, estop
the owners as against a consignee who is
not a party to the contract, and as against
an assignee of the bill for value, as this is
within the scope of his agency. Sears v.
Wingate, 3 Allen, 103, 107; Bradstreet v.
Heran, 2 Blatchf. 116; Abbott, Adm.
209; Nelson v. Woodruff, 1 Black, 156.
See The Freedom, L. R. 3 P. C. 594.
But as between the original parties,
the bill of lading is only a receipt so far
as it relates to these matters, and is open
to contradiction. Ib.; Ellis v. Willard, 5
Seld. (9 N. Y.) 529; Meyer v. Peck, 28 N.
Y. 590, 596; Tarbox v. Eastern Steamb.
Co., 50 Me. 339; Zerega v. Poppe, Abbott,
Adm. 397. And if the master signs a bill
of lading for goods not on board (or at
least delivered alongside, which, perhaps,
is enough, 206, n. 1), he is not acting
within the apparent scope of his author.
[ 284]
LECT. XLVII.]
* 207
OF PERSONAL PROPERTY.
By the bill of lading, the master engages as a common carrier to
carry and deliver the goods to the consignee, or his order, dangers
of the sea excepted; (b) and, by the common law, owners were
responsible for damages to goods on board, to the full extent of
the loss. But in England, by the statute of 53 Geo. III. c. 159,
owners and part. owners of ships are not liable beyond the value
of the ship and freight, even though the loss was occasioned by
the misconduct of the master and a part owner. (c) This statute
(b) This was formerly the only exception in bills of lading; but in later times, says
Lawes, Treatise on Charter Parties, 317, captains and ship owners have wisely
extended the exception to the acts of God, public enemies, fire, and all other dangers
and accidents of the seas, rivers, and navigation. Piracy is deemed a peril of the sea,
as see post, 216.
(c) The statutes of Massachusetts in 1818, c. 122, and of 1835, c. 32, are to the
same purport.
ity, ante, 164, n. 1; and will not make the 89. See ib. 498. See especially the
owners or the ship liable even to an in- learned argument in Swett v. Black, 1
dorsee of the bill for value. Grant v. Sprague, 574. And the indorsee might
Norway, 10 C. B. 665; Hubbersty v. Ward, sue at common law in respect of his prop-
8 Exch. 330; Jessel v. Bath, L. R. 2 Ex. erty in the goods for detaining or convert-
267; Sears v. Wingate, sup.; The Free- ing them, and the master, it is said, would
man v. Buckingham, 18 How. 182; The be estopped from denying that he had
Loon, 7 Blatchf. 244. See The Lady the goods after the declaration in the bill
Franklin, 8 Wall. 325. So it is not within of lading, on the faith of which the in-
the usual authority of the master to bind dorsee had bought and paid for them.
the owners by a bill of lading making the Tindall v. Taylor, 4 El. & Bl. 219, 229;
freight payable to a third person, or by Howard v. Shepherd, 9 C. B. 297.
an engagement to carry goods free of
freight. Reynolds v. Jex, 7 Best & S. 86.
See Mercantile Bank v. Gladstone, L. R.
3 Ex. 233, 240.
In the absence of a statute like 18 &
19 Vict. ch. 111, § 1, although indorse-
ment of the bill of lading may pass the
property in the goods, it does not transfer
the contract, so as to enable the indorsee
to sue upon the bill of lading in his own
name in courts of common law. Thomp-
son v. Dominy, 14 M. & W. 403; Howard
v. Shepherd, 9 C. B. 297; Dows v. Cobb,
12 Barb. 310; Blanchard v. Page, 8 Gray,
281, 298. But the assignee of a chose in
action may sue in his own name in the
American admiralty courts. Cobb v.
Howard, 3 Blatchf. 524; Mutual Safety
Ins. Co. v. Cargo of Brig George, Olcott,
So it seems that a consignee to whom
by the bill of lading the goods are to be
delivered, has prima facie such a property
in the goods as will enable him to sue the
master. Tronson v. Dent, 8 Moore, P.
C. 419, 438; Coleman v. Lambert, 5 M. &
W. 502, 505; Lawrence v. Minturn (The
Hornet), 17 How. 100. See Seagrave v.
Union N. Ins. Co., L. R. 1 C. P. 305, 319;
The Freedom, L. R. 3 P. C. 594. See
the note, ii. 549, n. 1, as to whether proper-
ty passes or not.
As to the liability of the consignee and
indorsee to be sued, see 222 & n. 1.
As to what is or has the effect of a bill
of lading, see Rawls v. Deshler, 3 Keyes,
572; Coosa R. St. Co. v. Barclay, 30 Ala.
120. c. ii. 547, n. (d); 549, n. 1.
[ 285 ]
* 208
[PART V.
OF PERSONAL PROPERTY.
assimilated the common law of England to the maritime law of
France, and other commercial countries; and the great principle
was, to limit the responsibility of part owners to the amount of
their respective capitals embarked in the ship. The value of the
ship was to be calculated at the time of the loss, and the freight,
in the statute, means all the freight, whether paid in advance or
not. (d) 2
There are commonly three bills of lading; one for the freighter,
another for the consignee, factor or agent abroad, and a third is
usually kept by the master for his own use. It is the document
and title of the goods sent; and, as such, if it be to order or
assigns, is transferable in the market. The indorsement and
delivery of it transfers the property in the goods from the time
of the delivery. (e) The bona fide holder of the bill of lading,
indorsed by the consignee, is entitled to the goods, if he pur-
chased the bill for a valuable consideration.
* 208
* Where there are several bills of lading, each is a con-
tract in itself as to the holder of it, but the whole make
only one contract as to the master and owners. If the several
parts of the bill of lading be indorsed to different persons, a com-
petition may arise for the goods; and the rule generally is, that
if the equities be equal, the property passes by the bill first
indorsed. (a)
3. Of the Carriage of Goods. -When the ship is hired, and
the cargo laden on board, the duties of the owner, and of his
agent, the master, arise in respect to the commencement, progress,
and termination of the voyage. Those duties are extremely im-
portant to the interests of commerce, and they have been well
and accurately defined in the marine law. (b)
(d) Wilson v. Dickson, 2 B. & Ald. 2.
(e) See ii. 548–550. This is also the law in France. Code de Commerce, art. 281.
A shipping note of goods at sea does not amount to a bill of lading, and it is not indors-
able so as to effect a change of property, and arrest the right of stoppage in transitu
by the consignor. Akerman v. Humphery, 1 Carr. & P. 53.
(a) [Barber v. Meyerstein, L. R. 4 H. L. 317 ;] Caldwell v. Ball, 1 T. R. 205; i
Bell's Comm. 545. When goods are sent by a ship hired by a charter party, the bills
of lading are delivered by the master to the person by whom the ship is chartered.
But if they are sent by a general ship, employed as a general carrier, each individual
who sends goods on board receives a bill of lading for the same.
(b) See Abbott on Shipping, 5th Am. ed. Boston, 1846, c. 5, part 4, p. 417, for a
2 See now the act of March 3, 1851, ch. 43, 9 U. S. St. at L. 635; post, 217,
n. 1.
[286]
LECT. XLVII.]
* 209
OF PERSONAL PROPERTY.
* When the voyage is ready, the master is bound to sail * 209
as soon as the wind and tide permit; but he ought not to
set out in very tempestuous weather. (a) If, by the charter party,
the ship was to sail by a given day, the master must do it, unless
prevented by necessity; and if there be an undertaking to sail
with convoy, he is bound to go to the place of rendezvous, and
place himself under the protection and control of the convoy,
and continue, as far as possible, under that protection during its
course. (b) He is bound, likewise, to obtain the requisite sailing
instructions for the convoy; (c) but these covenants to sail with
the first fair wind, and with convoy, are not conditions precedent
to the recovery of freight, and a breach of them only goes to the
question of damages. (d)
The master is bound, likewise, to proceed to the port of delivery
view of the authorities and the law, on the general duties of the master and owners
on this very interesting head, respecting the preparation, the commencement, the
course, and the completion of the voyage. The duties of the captain are described
minutely in the French statute codes. Every ship must be inspected by the captain,
under the forms prescribed, before she sails, and if he has no such official report of
the vessel, he becomes responsible for every accident. He must keep a regular jour-
nal of events on the voyage; and the ordinances prescribe very sage regulations in
case of the death of any seaman on board, touching his effects. He must be exact in
providing the requisite ship's papers before he sails; such as the bill of sale, register,
rôle d'équipage, bill of lading; and charter party, process verbal, clearance at the cus-
toms, and a license to sail. He must be on board when the vessel breaks ground. He
is answerable for damages even by cas fortuit, when the goods were on deck, unless he
had the consent of the owner in writing, or it was a coasting voyage; and if he sails
not in conformity to the regulations of the ordinances, he becomes responsible for all
damages, and cannot invoke the exception of force majeure, when those regulations
have not been observed. (Ord. de la Mar. art. 10, tit. Testament, art. 4; Ord. 1720,
1739, 1779; Code de Com. art. 224, 225, 226, 228, 229; Code Civil, art. 59, 86; 1
Emerigon, 374; Boulay-Paty, ii. 1-35.) The foreign marine ordinances usually make
special provision for the proper storage of the cargo. We have seen in the preceding
part of these lectures, that the master was responsible, as a common carrier, for the
carriage and safe delivery of the goods; and in the case of Sprott v. Brown, in the
Scottish Courts, (Bell's Comm. i. 557, note,) a large mirror was shipped from London
to Edinburgh, in a case marked glass, and the master had assumed to carry it safe,
and it was found broken, on delivery, without any known cause, and the master was
held responsible.
(a) Roccus, note 56; Ord. of Rotterdam, art. 128; Abbott on Shipping, 5th Am.
ed. Boston, 431.
(b) Gordon v. Morley, Strange, 1265; Lilly v. Ewer, Doug. 72; Jefferies v. Legen-
dra, Carth. 216.
(c) Webb v. Thompson, 1 Bos. & P. 5; Anderson v. Pitcher, 2 id. 164; Victorin v.
Cleeve, Strange, 1250.
(d) Constable v. Cloberie, Palmer, 397; Davidson v. Gwynne, 12 East, 381.
[287]
• 211
[PART V.
OF PERSONAL PROPERTY.
without delay, and without any unnecessary deviation from the
direct and usual course. If he covenants to go to a loading port
by a given time, he must do it, or abide the forfeiture; (e) and if
he be forced by perils out of his regular course, he must regain it
with as little delay as possible. Nothing but some just and neces-
sary cause, as to avoid a storm, or pirates, or enemies, or to pro-
cure requisite supplies or repairs, or to relieve a ship in
*210 distress, will justify a deviation * from the regular course
of the voyage. (a) If he deviates unnecessarily from the
usual course, and the cargo be injured by tempest during the de-
viation, the deviation is a sufficiently proximate cause of the loss
to entitle the freighter to recover; though if it could be shown
that the same loss not only might but must have happened if there
had not been any deviation, the conclusion might be otherwise. (b)
Nor has the captain any authority to substitute another voyage in
the place of the one agreed upon between his owners and the
freighters of the ship. Such a power is altogether beyond the
scope of his authority as master. (c) In cases of necessity, as
where the ship is wrecked, or otherwise disabled, in the course
of the voyage, and cannot be repaired, or cannot, under the cir-
cumstances, be repaired without too great delay and expense, the
master may procure another competent vessel to carry on the
cargo and save his freight. If other means to forward the cargo
can be procured, the master must procure them, or lose his freight;
and if he offers to do it, and the freighter will not consent, he
will then be entitled to his full freight. (d) The Rhodian law (e)
exempted the master from his contract to carry the goods, if the
ship became unnavigable by the perils of the sea. Faber and
Vinnius were of opinion, that by the Roman law the master was
not bound, in such a case, to seek another ship, because
*211 the contract related only to the * ship that was disabled. (a)
(e) Shubrick v. Salmond, 3 Burr. 1637; [Higginson v. Weld, 14 Gray, 165.]
(a) Roccus on Ins. n. 52; Patrick v. Ludlow, 3 Johns. Cas. 10; Post v. Phoenix
Ins. Co., 10 Johns. 79; Reade v. Com. Ins. Company, 3 id. 352; Suydam v. Marine
Ins. Company, 2 id. 138; Marshall, C. J., Mason v. The Ship Blaireau, 2 Cranch, 257,
(b) Davis v. Garrett, 6 Bing. 716.
note.
(c) Burgon v. Sharpe, 2 Camp. 529.
(d) Molloy, b. 2, c. 4, sec. 5; Griswold v. New York Insurance Company, 3 Johns.
321; Bradhurst v. Columbian Insurance Company, 9 id. 17; Schieffelin v. New York
Insurance Company, ib. 21.
(e) Dig. 14. 2. 10. 1.
(a) Vinnius, notæ ad Com. Peckii, ad Rem Nauticam, 294, 295, and Arthony
Faber, Com. ad Pand., whom Vinnius cites and follows.
44
[ 288 ]
LECT. XLVII.]
212
OF PERSONAL PROPERTY.
The laws of Oleron, and the ordinances of Wisbuy, gave
the power to the master to hire another vessel, if he chose to
do so, and earn freight; but the marine ordinance of Louis XIV.
declared it to be the duty of the master to hire another ship in
such a case, if it be in his power. (b) The French jurists differ
in opinion in respect to the obligation of the master to hire
another vessel to carry on the cargo, when his own becomes
irreparable. Valin and Pothier contend, that the master is no
further bound to procure another vessel, than by losing his freight
for the entire voyage, if he omits to do it; for, by the contract
of affreightment, he only engaged to furnish his own vessel, and
when, by the perils of the sea, or by some superior force, for
which he is not responsible, he becomes unable to furnish it, all
that he is bound to do, by the principles of the contract, is to
discharge the freighter from the freight for the residue of the
voyage. But Emerigon insists that they are mistaken in their
construction of the ordinance, and that the master is guilty of a
breach of duty, if he refuses to procure another vessel, and take
on the cargo, if it be in his power, and that this duty results from
the nature of his trust. (c)
The new French code has followed the words of the ordinance,
and declared, that if the vessel becomes disabled, and the master
can have her repaired, the freighter is bound to wait, or pay the
whole freight; and that if the vessel cannot be repaired, the mas-
ter is bound to hire another, and if he cannot hire another, the
freight is due only in proportion to the voyage performed.
Boulay-Paty, in his commentaries on the new code, *212
adopts the construction of Emerigon, and holds his reason-
ing to be conclusive. (a) Pardessus is also of the opinion, that
if the vessel in the course of the voyage becomes unnavigable, the
master is bound, if it be in his power, to procure another. (b)
*
The English rule undoubtedly is, that if the ship be disabled
from completing the voyage, the ship owner may still entitle him-
self to the whole freight by forwarding the goods by some other
(b) Jugemens d'Oleron, art. 4; Laws of Wisbuy, art. 16; Ord. de la Mar. tit. Du
Fret, art. 11.
(c) Valin, tit. Du Fret, art. 11, i. 618; Pothier, Charte-Partie, n. 68; Emerigon,
i. 428, 429.
405.
(a) Code de Commerce, art. 296; Boulay-Paty, Cours do Droit Com. ü. 400-
(b) Cours de Droit Com. iii. n. 644.
VOL. III.
19
[289]
康 ​* 212
[PART V.
OF PERSONAL PROPERTY.
means to the place of destination; and he has no right to any
freight, if they be not so forwarded, unless it be dispensed with, or
there be some new contract upon the subject. (c)¹ In this country
we have followed the doctrine of Emerigon and the spirit of the
English cases, and hold it to be the duty of the master, from his
character of agent of the owner of the cargo, which is cast upon
him from the necessity of the case, to act in the port of necessity
for the best interest of all concerned; and he has powers and dis-
(c) Lord Ellenborough, 10 East, 393. The English law has gone no further with
the case than to state that the master is at liberty to procure another ship to transport
the cargo to the place of destination, and earn his full freight, according to the original
contract. Abbott on Shipping, 5th Am. ed. Boston, 1846, p. 446. In Shipton v.
Thornton, 9 Ad. & El. 314, the Court of K. B. leave it as a doubtful point whether it
be the duty as well as the right of the master to procure another vessel, if he can, and
carry on the cargo.
¹ Right to forward in another Vessel.—
The British cases still go no farther
than the statement in note (c), according
to The Bahia, Brown. & Lush. 292, 305;
11 Jur. N. s. 90; Tronson v. Dent, 8
Moore, P. C. 419, 455; Kidston v. Em-
pire Ins. Co., L. R. 2 C. P. 357, 365;
Notara v. Henderson, L. R. 7 Q. B.
225, 231. But compare Lee v. Southern
Ins. Co., L. R. 5 C. P. 397, 405. The
language of the American cases agrees
with the text, and concedes the master's
power to charge the cargo with the in-
creased freight. The Maggie Hammond,
9 Wall. 435, 459; The Niagara v. Cordes,
21 How. 7, 24; Hugg v. Augusta Ins. &
Banking Co., 7 How. 595, 609; Crawford
v. Williams, 1 Sneed, 205. But when the
owner of a vessel, by reason of the perils
of the sea, ceases to have any interest,
either in the ship or freight, so that noth-
ing of either can be saved or protected
by any act of the master, the master's
authority to bind the owner is at an end.
Thwing v. Washington Ins. Co., 10 Gray,
443, 460; Lemont v. Lord, 52 Me. 365,
299. See De Cuadra v. Swann, 16 C. B.
N. 8. 772. If, under such circumstances,
the master sends on the cargo, he aoes it
as agent ex necessitate for the owners of
the cargo; ante, 172, n. 1; and his duty
in such an emergency, if he can have no
correspondence with them, is to put him-
self in their place, and do what they as
prudent men would do for their own in-
terest if they were present. Lemont v.
Lord, sup. ; Crawford v. Williams, 1 Sneed,
205; Pierce v. Columbian Ins. Co., 14 Al-
len, 320, 323; L. R. 5 Q. B. 353.
However the English law may be as
to the last proposition, it recognizes a
duty on the master, as representing the
ship owner, to take reasonable care of the
goods intrusted to him, not merely by pre-
serving them while sound, but by taking
such active measures as are reasonably
practicable, to arrest the damage resulting
to them from accidents, although the ship
owner is exempted from the proximate
effects of such accidents by the terms of the
bill of lading. This duty is distinguished
from the authority to transship, (which is
spoken of as a power for the benefit of
the ship owner only, to secure his freight,
L. R. 7 Q. B. 235, citing De Cuadra v.
Swann, 16 C. B. N. s. 772,) and is held to
be one for a breach of which the ship owner
is liable to the owners of the cargo. The
presence of the owners of the cargo, more-
over, makes no difference, as the master
is entitled to withhold the goods for the
purpose of earning freight. Notara v.
[290]
LECT. XLVII.]
* 213
OF PERSONAL PROPERTY.
cretion adequate to the trust, and requisite for the safe delivery
of the cargo at the port of destination. If there be another vessel,
in the same or in a contiguous port, which can be had, the duty
is clear and imperative upon the master to hire it; but still the
master is to exercise a sound discretion adapted to the case.
He
may transship the cargo, if he has the means, or let it remain. He
may bind it for repairs to the ship. He may sell part, or hypothe-
cate the whole. If he hires another vessel for the completion of
the voyage, he may charge the cargo with the increased freight,
arising from the hire of the new ship; and this power is expressly
given him by the old and the new ordinances of France, and it is
established by decisions in New York. (d) The master may
refuse to hire another vessel, and insist on repairing his own; and
whether the freighter be bound to wait for the time to repair, or
becomes entitled to his goods without any charge of freight,
will depend upon circumstances. *What would be a rea-
sonable time for the merchant to wait for repairs cannot
be defined, and must be governed by the facts applicable to the
place and the time, and to the nature and condition of the cargo.
A cargo of a perishable nature may be so deteriorated as not to
endure the delay for repairs, or may be too unfit and worthless
to be carried on. (a) The master is not bound to go to a distance
to procure another vessel, and encounter serious impediments in
* 213
(d) Mumford v. The Commercial Insurance Company, 5 Johns. 262; Searle v.
Scovell, 4 Johns. Ch. 218. Lord Denman, in Shipton v. Thornton, 9 Ad. & El. 314,
said, that no case of that sort had occurred in England; and he seemed to suppose,
that in a case where the transshipment could not be made but at the charge of an
increased freight, and when it would be greatly for the benefit of the freighter that the
goods should be sent forward, the master, in his character of agent of the owner, ought
to do it. If the cargo be charged with the increased freight, it becomes an average
loss to be borne by the insurer.
In Shultz v. Ohio Ins. Co., 1 B. Mon. (Ky.) 339, it was held, that the insurer was
not chargeable with such extra freight. Ib. 339, 343. He only guarantees the safe
arrival of the goods.
(a) Herbert v. Hallett, 3 Johns. Cas. 93; Clark v. Mass. F. & M. Ins. Co., 2 Pick.
104; Hunt v. Royal Exchange Assurance, 5 Maule & S. 47.
Henderson, L. R. 7 Q. B. 225; compare
8. c. L. R. 5 Q. B. 346. But it is said that
he cannot insist on carrying on the cargo
in a perishing condition for the sole pur-
pose of earning full freight, when it may
be saved by a different course; L. R. 5 Q.
B. 354; and, on the other hand, he is not
bound to delay the voyage for the sake of
the goods, ib. See, further, 228.
As to the law by which the power of
the master is determined, scc 164, n. 1.
[291]
214
[PART V.
OF PERSONAL PROPERTY.
the way of putting the cargo on board another vessel. His duty
is only imperative when another vessel can be had in the same or
in a contiguous port, or at one within a reasonable distance, and
there be no great difficulties in the way of a safe reshipment of
the cargo. (b)
In the course of the voyage, the master is bound to take all
possible care of the cargo, and he is responsible for every injury
which might have been prevented by human foresight and pru-
dence, and competent naval skill. He is chargeable with the
most exact diligence. (c) If the ship be captured during the
voyage, the master is bound to render his exertions to rescue
the property from condemnation, by interposing his neutral
claims, and exhibiting all the documents in his power for the
protection of the cargo. (d) We have already seen in what
cases and to what extent the master may hypothecate or sell the
cargo at a port of necessity; and if the ship, relieved at the
expense of the goods pledged or sold, should afterwards perish
with the residue of the cargo on board, before arrival at the port
of destination, the better opinion is, that the owner is not entitled
to payment for the goods sold. The merchant is not
*214 placed in a worse situation by the sale of the goods * than
1
if they had remained on board the ship. But the foreign
(b) Saltus v. Ocean Ins. Co., 12 Johns. 107; Treadwell v. Union Ins. Co., 6 Cowen,
270. See infra, 321.
(c) Roccus, n. 40, 55; Dale v. Hall, 1 Wils. 281; Vinnius, notæ ad Peckium, 259 ·
1 Emerigon, 373; Proprietors of the Trent Navigation v. Wood, 3 Esp. 127. The
master, on his arrival in port, in case of a disaster, is bound to give, in writing, a
verified statement of the circumstances attending the voyage, and the loss. The
French law requires the master, within twenty-four hours after his arrival in port, to
make his report (rapport, and which, in the language of the English and American
mercantile law, is termed a protest), containing the place and time of his departure,
the course he has kept, the dangers he has run, the accidents and all the remarkable
circumstances of the voyage. The report is to be made to the Tribunal of Commerce,
and, if in a foreign port, before the French consul, or, in the absence of either, before a
magistrate, and the report is to be verified by the master, and under circumstances,
together with the crew. Code de Commerce, art. 242–248. By the English practice,
the master's protest is made before a notary, and, since the English statute of 6 Wm.
IV. verification is made by solemn declaration instead of an oath. Abbott on Ship-
ping, by Shee & Perkins, 465, ed. Boston, 1846. Though the protest is not evidence
for the master or his owners, yet it is evidence against them, and is received as evi-
dence in foreign courts, and it is of great utility in matters of adjustment of losses,
and much consideration is given to it by merchants. Abbott, ib. 466.
(d) Cheviot v. Brooks, 1 Johns. 364.
1 172, n. 1; 174, n. 1.
[292]
LECT. XLVII.]
* 215
OF PERSONAL PROPERTY.
authorities are very much at variance on the point, and it remains
yet to be settled in the English and American law. (a)
4. Of the Delivery of Goods. On the arrival of the ship at
the place of destination, the cargo is to be delivered to the con-
signee, or to the order of the shipper, on production of the bill
of lading and payment of the freight. The English practice is,
to send the goods to the wharf, with directions to the wharfinger
not to part with them until the freight and other charges are paid,
provided the master be doubtful of the payment; for by parting
with the possession, the master loses his lien upon them for the
freight. (b) The cargo is bound to the ship as well as the ship
to the cargo; but the master cannot detain the goods on board
the ship until the freight bể paid, for the merchant ought to have
an opportunity to examine the condition of them previous to
payment. (c) The foreign ordinances of Wisbuy, and of Louis
XIV., allow the master to detain the goods, while in the lighter
or barge, on the passage to the quay, for they are still
*in his possession. (a) The manner of delivery, and the * 215
period at which the responsibility of the owners and mas-
ter ceases, will much depend upon usage. (b) The general rule
is, that delivery at the wharf (when there are no special direc-
tions to the contrary) discharges the master. (c) But the very
reasonable qualification of the rule is, that there must be a deliv-
ery at the wharf to some person authorized to receive the goods,
or due previous notice must have been given to the consignee of
(a) Emerigon has collected all the authorities, pro and con, on this very debatable
question. See Hall's Emerigon on Maritime Loans, 92. Non nostrum tantas compo-
nere lites. In favor of the right of the merchant to be paid, see the Laws of Wisbuy,
art. 68; Valin, Comm. tit. Du Fret, art. 14, i. 665; Cushing's Pothier on Maritime
Contracts, 19, Charte-Partie, n. 34, and Cleirac, Jugemens d'Oleron, art. 22, n. 2. In
opposition to such a claim, Emerigon reasons from the provisions and omissions in the
Consolato del Mare and the Ordinances of Oleron and Antwerp, that the merchant is not
entitled to pay. Pothier also admits that experienced persons, whom he consulted on
the subject, were against his opinion. Abbott, in his Treatise on Shipping, 5th Am. ed.
Boston, 1846, p. 456, is also against the claim of the shipper to be paid for the goods sold.
(b) Abbott on Shipping, pt. 3, c. 3, sec. 11; [4th Am. ed., ch. on Duties of Master
and Owners.] Sodergren v. Flight, cited in 6 East, 622.
(c) Abbott on Shipping, sup.
(a) Laws of Wisbuy, art. 57; Ord. de la Mar. liv. 3, tit. Du Fret, art. 23.
(b) Wardell v. Mourillyan, 2 Esp. 693; Heran v. Ship Grafton, N. Y. D. Court,
U. S. infra.
(c) Hyde v. Trent and Mersey Navigation Company, 5 T. R. 389; Chickering v.
Fowler, 4 Pick. 371; Cope v. Cordova, 1 Rawle, 203; Fox v. Blossom, New York
Common Pleas, October, 1828.
[293]
216
[PART V.
OF PERSONAL PROPERTY.
the time and place of delivery; and the master cannot discharge
himself, by leaving them naked and exposed at the wharf. So,
if the master gives a receipt for goods for shipping left on the
dock, they are as much at the risk of the ship as if actually put.
on board. (d) His responsibility will continue until there is actual
delivery, or some act which is equivalent, or a substitute for it,
unless the owner of the goods, or his agent, had previously
assumed the charge of the goods; (e) or at least until the con-
signee has had notice of the place and time of delivery, and the
goods have been duly separated and designated for his use. (ƒ)
It is often difficult for the master of a vessel to know to whom
he can safely deliver the goods, in case of conflicting claims.
between consignor and consignee, or consignor and the assignee
of the consignee. Prudence would dictate that he deliver the
goods to the party upon whose indemnity he can most safely rely.
But he ought not to be put to the peril and necessity of indem-
nity; and it is desirable that he should know to whom of right
he can deliver the goods. If the consignee has failed, he
216 ought to deliver to the claimant on *behalf of the con-
signee; and if the consignee has assigned the bill of lading,
and the rights of the consignor be still interposed and contested,
it is safest for the master to deposit the goods with some bailee,
until the rights of the claimants are settled, as they can always
be, upon a bill of interpleader in chancery, to be filed by the
master. (a) Having made a consignment, the consignor or seller
has not an unlimited power to vary it at pleasure. He may do
it only for the purpose of protecting himself against the insol-
vency of the buyer or consignée. (b)
(d) Fisher v. Brig Norval, 8 Martin (La.), N. s. 120.
(e) Strong v. Natally, 4 Bos. & P. 16; Ostrander v. Brown, 15 Johns. 39.
(ƒ) Chickering v. Fowler, Cope v. Cordova, and Fox v. Blossom, supra; 1 Valin's
Comm. 636. See ii. 604, 605, s. p. In Heran v. The Ship Grafton, (District
Court of U. S., N. Y., November, 1844,) Judge Betts held, that according to the
well settled course and usage of trade, delivery of goods on freight at the dock, with
notice to the consignee of the time and place, discharges the ship owner or co-
mon carrier from liability, and that the rule applied equally to the coasting and the
foreign trade. But uniform usage will control and regulate the mode of delivery ;
and an exception to the general rule would also exist, if a reasonable discretion was
not exercised by the carrier, and perishable goods be put on the dock in hazardous
or improper weather, against the consent of the consignee. Ostrander v. Brown, 15
Johns. 39; Cope v. Cordova, 1 Rawle, 203, s. p.
(a) Abbott on Shipping, pt. 4, c. 10, sec. 24.
(b) The Constantia, 6 C. Rob. 321; 1 Emerigon, des Ass. 317. The master may
[294]
LECT. XLVII.] OF PERSONAL PROPERTY.
* 217
The causes which
5. Of the Responsibility of the Ship Owner.
will excuse the owners and master for the nondelivery of the
cargo must be events falling within the meaning of one of the
expressions, act of God, and public enemies; or they must arise
from some event expressly provided for in the charter party. It
is well settled in the English and in our American law, that
carriers by water (and whether the carriage relates to foreign
or inland navigation), are liable as common carriers, in all the
strictness and extent of the common law rule, unless the loss
happens by means of one of the excepted perils. (c) Perils of
the sea denote natural accidents peculiar to that element, which
do not happen by the intervention of man, nor are to be prevented
by human prudence. A casus fortuitus was defined in the civil
law to be quod damno fatali contingit, cuivis diligentissimo possit
contingere. It is a loss happening in spite of all human effort
and sagacity. The only exception to this definition is, the case
of a vessel captured and plundered by pirates, and that
has been adjudged to be a peril of the * sea. (a) A loss *217
by lightning is within the exception of the act of God;
but a loss by fire, proceeding from any other cause, is chargeable
upon the ship owner. (b) The moment the goods are transferred
from the ship or the lighter to the warehouse, this extraordinary
responsibility ends, and the warehouseman is not so respon-
sible. (c)
It is often a difficult point to determine, whether the disaster
unite in himself the character of consignee as well as master, and in that case he stands
in the relation of agent to two distinct principals. In the safe custody and delivery of
the cargo he is the agent of the ship owner; and in the sale of it after the cargo has
arrived at the place of destination, he is the agent of the shipper or consignor.
Thompson, J., and Kent, C. J., in U. Ins. Co. v. Scott, 1 Johns. 111, 115; Williams v.
Nichols, 13 Wendell, 58; The Waldo, U. S. District Court of Maine, 1841, [Daveis,
161.]
(c) See ii. 598-600.
(a) Pickering v. Barkley, Style, 132; Barton v. Wolliford, Comb. 56.
(b) Forward v. Pittard, 1 T. R. 27 ; Hyde v. Trent and Mersey Navigation Company,
5 id. 389; Gilmore . Carman, 1 Smedes & M. 279. In Hunt v. Morris, 6 Martin
(La.), 676, it was held, that the owners of a steamboat destroyed by fire were not
liable to the freighters, if proper diligence was used. But that decision was according
to the civil law, which is not so strict on this point. But the owner is liable to the
freighter for damages arising from fire to the ship, occasioned by gross and culpable
negligence in the mode of fitting up the ship, or otherwise. Hunters v.. The Owners
of the Morning Star, Newfoundland, 270.
(c) Garside v. Trent and Mersey Navigation Company, 4 T. R. 581.
[295]
217
[PART V.
OF PERSONAL PROPERTY.
happened by a peril of the sea, or unavoidable accident, or by
the fault, negligence, or want of skill of the master. If a rock
1 Owner's Liability.— (a) Common Car-
riers. It has been commonly assumed
that a general ship is a common carrier.
Laveroni v. Drury, 8 Exch. 166, 170; Gage
v. Tirrell, 9 Allen, 299, 302; Clark v.
Barnwell, 12 How. 272, 280; Garrison v.
Memphis Ins. Co., 19 How. 312, 315;
The Zenobia, Abbott, Adm. 80. The
contrary is argued by Mr. Parsons (1 Ship.
248, & n. 2), on the ground that it is not
bound to receive all goods offered. The
question, if there is any, is made less im-
portant by the fact that a bill of lading is
generally given by which the liability is
expressly fixed. See, also, Kay v. Wheeler,
L. R. 2 C. P. 302, 304; Allen v. Sack-
rider, 37 N. Y. 341, (but in this case the
ship was not employed as a general ship).
Sea Perils, &c. - The text, 216, is con-
firmed as to pirates by Gage v. Tirrell, 9
Allen, 299, 310. As to fire, by Garrison v.
Memphis Ins. Co., 19 How. 312, 315; Airey
v. Merrill, 2 Curtis, 8; Slater v. Hayward
Rubber Co., 26 Conn. 128; Miller v. Steam
Nav. Co., 6 Seld. (10 N. Y.) 431. Other
perils of the sea are hidden obstructions
in a river, recently brought there by the
current. Redpath v. Vaughan, 52 Barb.
489; Turney v. Wilson, 7 Yerg. 340.
But see Friend v. Woods, 6 Gratt. 189.
Restraints of princes and rulers are not
perils of the sea. Spence v. Chadwick,
10 Q. B. 517; Howland v. Greenway
(The Griffin), 22 How. 491, 502; Park-
hurst v. Gloucester M. Fishing Ins. Co.,
100 Mass. 301, 305. But the judgment
of a foreign court is not one of those re-
straints, which are confined to interfer-
ence with a strong hand. Finlay v. Liver-
pool & G. W. Steamship Co., 23 L. T. N. s.
251. Rats and other vermin are not a peril
of the sea or within the usual exceptions of
a bill of lading. Kay v. Wheeler, L. R. 2
C. P. 302; The Miletus, 5 Blatchf. 335.
When the loss would not have hap-
pened but for the unseaworthiness of the
ship, or other negligence or breach of
contract of the owners or master, it would
seem that the owners are not exonerated
by the fact that the proximate cause of
the loss is a jettison on account of a peril
of the sea. Schloss v. Heriot, 14 C. B. N. S.
59; post, 234, n. 1, (a); The Portsmouth,
9 Wall. 682, 684; The Norway, 3 Moore,
P. C. n. s. 245, 262; Bazin v. Richardson,
20 Law Rep. 129; 5 Am. Law Reg. 459.
See Tuckerman v. Stephens & Condit
Transp. Co., 3 Vroom, 320. But com-
pare Memphis & C. R.R. v. Reeves, 10
Wall. 176, 191. But when the owners
show that the loss was occasioned by one
of the excepted risks, the burden of proof
is on the plaintiff to show that it might
have been avoided but for their negli-
gence. Western Transp. Co. v. Downer, 11
Wall. 129; Czech v. General Steam Nav.
Co., L. R. 3 C. P. 14; 5 Am. Law Rev. 205.
Other Damage. A vessel is liable in
rem for damage caused to goods of one ship-
per by those of another, although the goods
are stowed in the usual way, if the injury is
caused by the goods of the third party
being in bad condition when put on board.
The Bark Cheshire, 2 Sprague, 28; ante,
206, n. 1; post, 218, n. 2. The owners are
also liable personally. Gillespie v. Thomp-
son, 6 El. & Bl. 477, n. (a) to Brass v.
Maitland. Compare Clark v. Barnwell,
12 How. 272; Rich v. Lambert, ib. 347;
Baxter v. Leland, Abbott, Adm. 348;
Parrott v. Barney, 2 Abbott, U. S. 197,
223. As this is not a peril of the sea,
when the ordinary bill of lading is given
there is a liability on the contract apart
from negligence. The Freedom, L. R. 3
P. C. 594.
—
(b) Statutory Limitations.-The owners'
liability is now limited in the United States
by the act of Congress of March 3, 1851, ch.
43, 9 U. S. St. at L. 635. This statute is
carefully discussed in an article, 1 Am. Law
Rev. 597, by Mr. Lathrop, of the Boston
[296]
LECT. XLVII.]
* 217
OF PERSONAL PROPERTY.
or a sand bar be generally known, and the ship be not forced
upon it by adverse winds or tempests, the loss is to be imputed
bar, and is said (p. 604) to be taken princi-
pally from the English act of 26 Geo. III.,
and ch.47 of Maine R. S. 1840. The first
section exempts the owners from liability
for loss by fire, unless such fire is caused
by their design or neglect. This only ap-
plies to goods actually on board the ves-
sel. Salmon Falls Manuf. Co. v. The
Tangier, 21 Law Rep. 6, and next two
cases; Morewood v. Pollok, 1 El. & Bl.
743. It extends to passengers' baggage.
Chamberlain v. Western T. Co., 44 N. Y.
305. And the neglect meant is that of
the owners personally, and not that of the
officers and crew, for which the owners are
not liable. Walker v. Western Transp.
Co., 3 Wall. 150. An amendment was
added to the section as first reported
(Cong. Globe, xxiii. 719, 720), allow-
ing the parties to make such contract
as they please varying the owners' lia-
bility. But a local custom making own-
ers liable for negligence of their servants
would probably not be enough without
an express assumption of that liability.
Ib.
The second section exempts the owners
from liability for precious metals and
stones, coins, jewelry, bank bills, &c., un-
less a note in writing of their true char-
acter and value is given at the time of
shipping to the owners or their agents,
and the same entered on the bill of lading.
See Wattson v. Marks, 2 Am. Law Reg.
157. This does not apply to money suf-
ficient for the reasonable travelling ex-
penses of a passenger contained in the
valise which he delivers as his luggage.
Dunlap v. International Steamb. Co., 98
Mass. 371.
By the third section it is enacted "that
the liability of the owner or owners of
any ship or vessel, for any embezzlement,
loss or destruction, by the master, officers,
marners, passengers, or any other person
or persons, of any property, goods, or
merchandise, shipped or put on board of
such ship or vessel, or for any loss, dam-
age, or injury by collision, or for any act,
matter, or thing, loss, damage, or forfeit-
ure, done, occasioned, or incurred, with-
out the privity or knowledge of such
owner or owners, shall in no case exceed
the amount or value of the interest of
such owner or owners respectively, in
such ship or vessel, and her freight then
pending." And by the fourth, "that if any
such embezzlement, loss, or destruction,
shall be suffered by several freighters or
owners of goods, wares, or merchandise,
or any property whatever, on the same
voyage, and the whole value of the ship
or vessel, and her freight for the voyage,
shall not be sufficient to make compensa-
tion to each of them, they shall receive
compensation from the owner or owners
of the ship or vessel, in proportion to their
respective losses; and for that purpose
the said freighters and owners of the
property, and the owner or owners of the
ship or vessel, or any of them, may take
the appropriate proceedings in any court,
for the purpose of apportioning the sum
for which the owner or owners of the ship
or vessel may be liable amongst the parties
entitled thereto. And it shall be deemed
a sufficient compliance with the require-
ments of this act, on the part of such
owner or owners, if he or they shall trans-
fer his or their interest in such vessel and
freight, for the benefit of such claimants,
to a trustee, to be appointed by any court
of competent jurisdiction, to act as such
trustee for the person or persons who may
prove to be legally entitled thereto, from
and after which transfer all claims and
proceedings against the owner or owners
shall cease." See 218, n. 1; ii. 260, n. 1.
With regard to the time at which the
value of the ship and freight is to be
estimated, it has been held, in a case of
collision, that it is to be taken just before
[297]
* 217
[PART V.
OF PERSONAL PROPERTY.
to the fault of the master. But if the ship be forced upon such
rock or shallow by winds or tempests, or if the bar was occa-
the collision occurred. Walker v. Boston
Ins. Co., 14 Gray, 288; Barnes v. Steam-
ship Co., 25 Leg. Int. 196. See African
Steamship Co. v. Swanzy, 2 K. & J. 660;
Leycester v. Logan, 3 K. & J. 446. So,
in a case of embezzlement by the master,
it has been held that the value is to be
taken just before the tort was committed.
Spring v. Haskell, 14 Gray, 309, 316,
denying Wattson v. Marks, 2 Am. Law
Reg. 157. But the latter case has re-
ceived the approval of the Supreme Court
of the United States, in the much con-
tested case of Norwich T. Co. v. Wright,
13 Wall. 104, 127; and Walker v. Boston
Ins. Co., sup., is disapproved as depriving
the owner of the right of abandonment if
the ship was lost. It has been held that
when there are several owners, they are
jointly liable to the extent of the value
of their interest. Spring v. Haskell, 14
Gray, 309. And no deduction is to be
made in estimating that value for a mort-
gage, bottomry, and the like. Spring v.
Haskell, sup.; Barnes v. Steamship Co.,
25 Leg. Int. 196. The earnings of the
vessel in transporting the goods of the
owner are freight, within the meaning of
the statute. Allen v. Mackay, 1 Sprague,
219. But if the owner of the vessel,
within the meaning of the statute, is not
the owner of the freight, the freight does
not contribute. Walker v. Boston Ins.
Co., 14 Gray, 288.
The right of abandonment given by
section four has been thought to be al-
lowed only in case of a loss occasioned by
the first class of causes mentioned in sec-
tion three. Walker v. Boston Ins. Co.,
14 Gray, 288, 307; Barnes v. Steamship
Co., 25 Leg. Int. 196. When Wright v.
Norwich & N. Y. T. Co. was before the
Circuit Court, the same line of reason-
ing, and a consideration of the whole act,
were thought to lead to the conclusion
that Congress only intended to limit the
liability of ship owners as common car-
riers. The general words of the third
section as to "any loss, damage, or in-
jury by collision" were considered not to
apply to damage done to another vessel;
affirming s. c. 1 Benedict, 156, but on
different grounds. But the Supreme
Court gave the act its broadest construc-
tion. 13 Wall. 104. See The Baltimore,
8 Wall. 377, 385; Moore v. American
Transp. Co, 24 How. 1, 39.
A loss occasioned by the unseaworthi-
ness of the vessel (at the beginning of the
voyage?) is not "without the privity of
the owner." In re Sinclair, 8 Am. Law
Reg. 206. The appropriate proceed-
ings in any court," mentioned in section
four, may be taken in the court of ad-
miralty. Norwich Co. v. Wright, 13 Wall.
104.
For section five, see 138, n. 1.
Section six preserves liabilities of and
remedies against masters and mariners,
even when owners or part owners of the
vessel.
Section seven imposes a penalty for
shipping certain inflammable and danger-
ous articles without delivering at the time
a note of their nature and character to
the person in charge of the lading; and
also provides that the act shall not ap-
ply to the owner of any canal boat, barge,
or lighter, or to any vessel of any descrip-
tion whatsoever, used in rivers or inland
navigation. But this does not prevent its
embracing vessels engaged in commerce
on the great northern lakes as well as on
the ocean. Moore v. American T: ansp.
Co., 24 How. 1; Walker v. Western
Transp. Co., 3 Wall. 150, 152.
Effect in a Foreign Jurisdiction. - How
far such a law is applicable, or would
have been applied, in the British courts,
to a collision of an American with a for-
eign ship on the high seas, does not seem
to have been considered in Walker v
[298]
LECT. XLVII.]
* 218
OF PERSONAL PROPERTY.
sioned by a recent and sudden collection of sand, in a place
where ships could before sail with safety, the loss is to be attrib-
uted to a peril of the sea, which is the same as the vis major or
casus fortuitus of the civil law. (d) What is an excusable peril
depends a good deal upon usage, and the sense and practice of
merchants; and it is a question of fact, to be settled by the cir-
cumstances peculiar to the case. The English statute law of 26
Geo. III. c. 86, and 53 Geo. III. c. 159, has exempted ship owners
in some of these hard cases; but, with the exception of a statute
in Massachusetts, passed in 1818, and reënacted in the Revised
Statutes of 1836, limiting the responsibility of owners for the
acts of the master and mariners to the value of the ship and
freight, and of a similar statute in Maine, (e) I do not know of
any such statute exemptions in this country. (f) The owner is
bound for the whole amount of the injury done by the master or
crew, unless where ordinances or statutes have established a
different rule. (g) Not so abroad, for by the general mari-
time law of Europe, the * responsibility of owners of ves- *218
sels for the wrongful acts of masters is limited to the value
of the vessel and freight, and by abandoning them to the credi-
(d) Smith v. Shepherd, cited in Abbott on Shipping, pt. 3, c. 4, sec. 1, [ch. ou
Causes which excuse Master and Owners.]
(e) Laws of Maine, i. c. 14, sec. 8.
(f) The authority of the master to contract for and bind the owners, without
some special provision to the contrary, must be measured by the laws of the country
to which the ship belongs. He cannot bind the owners beyond the laws of their own
country, and by the foreign law. Pope v. Nickerson, 3 Story, 475, 6. [See 164,
n. 1.]
(g) See ii. 606, and supra, 207, where the exemptions from responsibility under
the English statutes are stated. 2 Story, 471.
Boston Ins. Co., sup. An American ship
which had injured a British ship under
such circumstances was denied the pro-
tection of either the American or British
act in The Wild Ranger, Lush. 553; 9 Jur.
N. s. 134; 32 L. J. N. s. Ad. 49; and this
would seem to have been sufficient ground
for the decision of the case in 14 Gray.
So the owner of one of two foreign ships
which have come into collision on the high
seas was not entitled to the benefit of the
G. & J. 614; 4 K. & J. 367. The English
act has, however, been held to apply to a
collision between an English and foreign
ship within three miles of the British
coast, General Iron Screw Collier Co. v.
Schurmanns, 1 J. & H. 180; and the
later English act of 1862, St. 25 & 26 Vict.
c. 63. § 54, has been applied in the case
of a collision on the high seas between an
English and a foreign vessel, in. favor of
the former Cail v. Papayanni (Thẻ
English statute. Cope v. Doherty, 2 De Amalia), 1 Moore, P. C. n. s. 471.
[ 299 ]
* 218
[PART V.
OF PERSONAL PROPERTY.
tor, they may discharge themselves. (a) And it appears very
clearly, that by the general maritime law, a lien exists in favor
of the merchant who ships merchandise in a vessel on freight,
against the vessel for the nonperformance of the contract of
affreightment, under the bill of lading, entered into by the mas-
ter in his quality of master, and that it may be enforced by pro-
cess in rem. The ship itself, in specie, is considered as a security
to the merchant who lades goods on board of her, and it makes
no difference whether the vessel be in the employment of the
owner directly, or be let by a charter party to a hirer, who was
to have the whole control of her. By custom, says Cleirac, the
ship is bound to the merchandise, and the merchandise to the
ship. (b) 1
(a) Consulat de la Mer, ii. 41; Codigo de Commercio of Spain, 1829, art. 622;
Emerigon, Contrats à la Grosse, c. 4, sec. 11, who refers to the principal foreign
authorities on the point; Boulay-Paty, Cours de Droit Com. i. 263–298. The latter
discusses the subject with his usual comprehensive erudition. See, also, Pope v.
Nickerson, 3 Story, 465, 474.
•
(b) Us et Coutumes de la Mer, 72; ib. 503; Navigation des Rivières, art. 18, 19;
Consulat de la Mer, ii. 80, 90, 104, 455, c. 58, 63, 72, 259, 289; Ord. de la Marine,
1, 14, 16; 1 Valin's Comm. 362. Lord Tenterden, in his Treatise on Shipping, 170,
admits this to be the rule of the maritime law, but denies that the Court of Admi-
ralty, in England, has jurisdiction to enforce the lien upon the ship in behalf of the
shipper. That principle of maritime law, therefore, lays dormant, from the want of
a court of law or equity to enforce it in rem. But in the case of the Rebecca, in the
Admiralty Court of the district of Maine, Judge Ware thought himself bound, and
on solid grounds, to adopt the principle of the marine law, and he gave a remedy in
rem against the vessel, in favor of the shipper, for the wrongful acts of the master.
Ware, 188; The Phebe, ib. 263, s. p.
¹ Liens.- See 138, n. 1; 164, n. 1; and
below, as to the ship being bound when
the general owners are not. ii. 260, n. 1.
As to when the lien begins, 206, n. 1;
as to time for enforcing it, 196, n. 2.
that such a proceeding does not neces-
sarily imply the existence of a lien. See
The Two Ellens, L. R. 4 P. C. 161, 169;
L. R. 3 Ad. & Ec. 345, 357, and cases
cited; The Bold Buccleugh, 7 Moore, P.
As to the extent to which the ship is C. 267, 284; ante, 170, n. 1.
bound by a bill of lading, 207, n. 1.
See, generally, The Keokuk, 9 Wall.
517, 519.
In The Maggie Hammond, 9 Wall. 435,
the owner of a cargo shipped between
foreign ports on a British ship, was al-
lowed to enforce a lien on the vessel for
breach of the contract of affreightment, on
the ground that the English law, St. 24 &
25 Vict. c. 10, § 6, would have given him
a proceeding in rem, although it seems
As to the effects of the lien for freight
where it has attached, post, 228, n. 1.
As to the lien for contribution in gen-
eral average, see 234, n. 1, (e); as to col-
lision, see 232, n. 1; as to salvage, see
248, n. 1.
The original liability of the vessel for
the torts of the master seems to spring
from the fact that she was personified
by the maritime law, and that she, not
the owners, was regarded as the principal.
[300]
LECT. XLVII.]
* 218
OF PERSONAL PROPERTY.
By the civil law, the owners were responsible in solido, for all
the obligations of the master, in his character of master, to their
full extent, whether arising ex contractu or ex delicto. But by the
maritime law, the owner is not responsible for the wrongful acts
of the master beyond his interest in the vessel and freight, and
by abandoning them he is discharged, while the ship continues
liable in specie, and the shipper has so far a privilege against it
over the general creditors. (c)
6. Of the Duties of the Shipper. We have seen what are the
(c) This, says Emerigon, (Contrats à la Grosse, c. 4, sec. 11,) was the nautical law
of the middle ages, and of the north of Europe, as well as of the Ordinance of the
Marine, and he refers, for the support of his assertions, to all the leading text authori
ties; and it is, no doubt, the settled law of the maritime nations of continental Europe.
But this limitation of the owner's responsibility, so far as regards the faults of the
master, has never been adopted in England, or in this country, except by special
statute authority, as we have already mentioned, and the common law, like the civil
law, holds the owner responsible, without any such limitation. Abbott on Shipping,
part [4, ch. on Limit. of Responsibility.] Mr. Justice Ware, in the case of the Rebecca,
above cited, has examined this subject with deep and accurate research, and arrives
at the same conclusion with the judges in the Louisiana cases. Porter, J., in Mal-
pica v. McKown, 1 La. 259; Martin, J., in Arayo v. Currell, ib. 539. The note of the
case of the Rebecca, in the third edition of this volume, was taken from the Jurist.
The opinion of the learned judge is now more fully and correctly given in his own
volume of reports, and it is, as far as the subject extends, a masterly examination of
the maritime jurisprudence of Europe. [Cf. ii. 260, n. 1.]
She might be liable when the owners
were not, apart from their interest in her,
because she might be in fault, when the
owners, by the doctrines of agency, were
not chargeable for the acts of the person
controlling her. Conversely, it is laid
down by Pardessus, Droit Comm. n. 961,
that the lien for freight prevails even
against the owner of stolen goods, as the
master deals “less with the person than
with the thing," &c. Ante, 138, n. 1;
176, n. 1; post, 232, n. 1. By the English
law, even, it can hardly be maintained
that the ship is never liable when the
owners at the time the cause of action
accrued are not also chargeable person-
ally on ordinary principles of agency,
as was said in The Druid, 1 Wm. Rob.
391, 399; compare the lien for salvage
with the personal liability of the owners,
post, 248, n. 1. But the responsibility
of the ship seems to be mainly confined
The principle,
to cases where the owners have, by
their voluntary act, for instance, by a
demise of the ship, allowed her to get
into the situation where she becomes a
wrong doer. Post, 232, n. 1; The Ticon-
deroga, Swabey, 215.
even when thus limited, cannot be sus-
tained by the analogies of the common
law, but involves a partial personifica-
tion of the ship, and if the courts go as
far as this, it is only an extension of the
principle to hold her liable in case of com-
pulsory pilotage. Ante, 176, n. 1. But see
The Halley, L. R. 2 P. C. 193, 201, 202. Cf.
ii. 260, n. 1; 1 Tissot, Droit Pén. p. 20;
1 Tylor, Prim. Culture, Am. ed. 285, 286.
See, generally, as to the liability of the
ship, The John L. Dimmick, 9 Am. Law
Reg. 224; Ralston v. The State Rights,
Crabbe, 22; The Aberfoyle, 1 Abbott
Adm. 242; 1 Blatchf. 360; McGuire v
Golden Gate, 1 McAl. 104.
[301]
* 219
[PART V.
OF PERSONAL PROPERTY.
J
general duties of the master. Those on the part of the charterer
are, to use the ship in a lawful manner, and for the purpose for
which it was let. Usually, the command of the ship is reserved
to the owner, and to the master by him appointed, and the mer-
chant has not the power to detain the ship beyond the stipulated
time, or employ her in any other than the stipulated service, and
if he does he must answer in damages. (d) If the freighter puts
on board prohibited or contraband goods, by means whereof the
ship is subjected to detention and forfeiture, he must answer to
the ship owner for the consequences of the act. (e) 2 And if the
merchant declines to lade the ship according to contract, or to
furnish a return cargo, as he had engaged to do, he must render
in damages due compensation for the loss; and the English
* 219 law leaves such questions at large to a jury, without * defin-
ing beforehand the rate of compensation, in imitation of
some of the ordinances in the maritime codes.
7. Of the Payment of Freight. Freight, in the common accepta-
tion of the term, means the price for the actual transportation
of goods by sea from one place to another; but, in its more exten-
sive sense, it is applied to all rewards or compensation paid for
the use of ships, including the transportation of passengers. (a)
The personal obligation to pay freight rests either on the charter
party, or on the bill of lading, by which the payment of freight
äs made a condition of delivery; and the general rule is, that the
delivery of the goods at the place of destination, according to the
charter party, is necessary to entitle the owner of the vessel to
freight. The conveyance and delivery of the cargo form a con-
(d) Lewin v. East India Company, Peake, 241.
(e) Smith v. Elder, 3 Johns. 105.
(a) Giles v. The Cynthia, 1 Peters Adm. 206; [Denoon v. Home & Col. Ins. Co.,
L. R. 7 C. P. 341, 348.]
2 The shipper of goods on a general ship
is held to undertake that he will not de-
liver to be carried on the voyage pack-
ages of goods of a dangerous nature,
which those employed on behalf of the
ship owner may not, on inspection, be
reasonably expected to know to be such,
without expressly giving notice that
they are of a dangerous nature, even
when he is ignorant of the fact and
without actual fault. The decisions are
put on the ground of policy that of
two innocent persons the loss should fall
on the one who has generally the best
means of informing himself as to the con-
dition of the article shipped. Brass v.
Maitland, 6 El. & Bl. 470; Pierce v. Win-
sor, 2 Cliff. 18; 2 Sprague, 35. Compare
Parrott v. Barney, 2 Abbott, U. S. 197,
224. See Boyd v. Moses, 7 Wall. 316;
ante, 206, n. 1; also 217, n. 1, (a), ad finem.
As to unloading, see 206, n. 1.
[302]
LECT. XLVII.]
* 220
OF PERSONAL PROPERTY.
dition precedent, and must be fulfilled.¹ A partial performance
is not sufficient, nor can a partial payment or ratable freight be
claimed, except in special cases, and those cases are exceptions to
the general rule, and called for by the principles of equity. (b)
The amount of freight is usually fixed by agreement between
the parties; and if there be no agreement, the amount is ascer-
tained by the usage of the trade and the reason of the case. If
the hiring be of the whole ship, or for an entire part of her for
the voyage, the merchant must pay the freight, though he does
not fully lade the ship. But if he agrees to pay in proportion to
the amount of the goods put on board, and does not agree to pro-
vide a full cargo, the owner can demand payment only for the
cargo actually shipped. If the merchant agrees to furnish a return
cargo, and he furnishes none, and lets the ship return in ballast,
he must make compensation to the amount of the freight; and
this is sometimes termed dead freight, in contradistinction to
freight due for the actual carriage of goods. (c) 2
*It is supposed to be the doctrine of the case of Bell v.
* 220
Puller, (a) that the master would be entitled to freight for
bringing back the outward cargo, if it could not be disposed of,
though the charter party was silent as to a return cargo. It would
stand upon the equity of the claim to dead freight. (b) The
French law, in such a case, allows freight for bringing back the
cargo, because it could not be sold, or was not permitted to be
landed. (c)
(b) Mr. Justice Story, in the case of the Ship Hooper, U. S. C. C. Mass. May,
1839, 3 Sumner, 542, laid down the general rule, that freight for the entire voyage
could only be earned by a due performance of the voyage; and that the only
acknowledged exception is where there is no default or inability of the carrier ship
to perform the voyage, and the ship owner is ready to forward them, but there is a
default on the part of the owner of the cargo, or he waives a further prosecution of
the voyage.
(c) Roccus, note, 72, 73, 74, 75; Edwin v. East India Company, 2 Vern. 210;
Atkinson v. Ritchie, 10 East, 530; Peters, J., in Giles v. The Brig Cynthia, Peters
Adm. 207.
(a) 2 Taunt. 286.
(b) Lawes on Charter-Parties, 152.
(c) Boulay-Paty, ii. 391. In the case of the schooner Volunteer and Cargo, 1 Sum-
ner, 577, Mr. Justice Story, after a skilful criticism of the English cases, was of
opinion that the owner would be entitled to hold the cargo by way of lien for the
freight in such a case. But the owner cannot rightfully refuse to land the cargo before
the freight is paid or secured, for the shipper has a right, after the goods are unlivered,
2 See 228, n. 1, (d).
1 See 228, n. 1, (a).
[303]
221
[PART V
OF PERSONAL PROPERTY.
1
If there be no agreement in the case, the master is not bound
to part with the goods until the freight be paid, for by the com-
mon law, there is a lien on the goods shipped for the freight due
thereon, whether it arise under a common bill of lading, or under
a charter party, though the lien may be waived or displaced by
any special agreement inconsistent with the lien. (d) But if the
master refuses to deliver the goods for other cause than the non-
payment of freight, he cannot avail himself of the want of a
tender. When the regulations of the revenue require the goods
to be landed and deposited in a public warehouse, the master may
enter them in his own name, and preserve the lien. The shipper
of goods on freight has a lien on the vessel for the loss of the
goods, by reason of the nonperformance of the contract entered
into by the master in the bill of lading. By a common clause in
charter parties, the owner binds the ship, and the charterer binds
the cargo, to the performance of all the covenants in the charter
party, though the right of lien for freight does not absolutely
depend on any covenant to pay freight. If there be such a cov-
enant, it creates a lien or pledge on the cargo, to be enforced
by a suit in rem, or by detaining the cargo until the freight be
paid. (e) The English courts of common law will not allow such
a lien to be enforced by the admiralty in rem; but the justice
and necessity of such a jurisdiction are admitted, and not invoked
in vain in this country, and the lien may be enforced by process
in rem against the vessel or the proceeds of the cargo, in the dis-
trict courts. (f)¹ The ship owner's lien for freight is gone when
the charterer is constituted owner, and takes exclusive
**221 possession for the voyage, * or when the payment of the
1
freight is, by agreement, postponed beyond the time, or
to examine them, and to see whether they are damaged, and to have the damages, if
any, ascertained, and then, after the discharge, the owner has the right to detain the
cargo in custody until payment or security of the freight. Abbott on Shipping, 5th
Am. ed. Boston, 1846, 460; 1 Valin, lib. 3, tit. 3, art. 21, p. 665; Pardessus, Droit
Com. part 3, tit. 4, c. 2, art. 719; Case of Certain Logs of Mahogany, 2 Sumner, 601,
602.
(d) The Schooner Volunteer and Cargo, 1 Sumner, 551. [See 228, n. 1, (d).]
(e) The Schooner Volunteer and Cargo, 1 Sumner, 572, 573.
(ƒ) Cleirac, Us et Coutumes de la Mer, 72; Boulay-Paty, ii. 297; Crane v. The
Rebecca, Ware, 188; The Schooner Volunteer and Cargo, 1 Sumner, 551.
I The Kimball, 3 Wall. 37; 2 Cliff. 4;
Maggie Hammond, 9 Wall. 435; ante,
2 Sprague, 33; 228, n. 1, (d). See The 218, n 1.
[304]
LECT. XLVII.]
* 222
OF PERSONAL PROPERTY.
at variance with the time and place for the delivery of the goods.¹
But without a plain intent to the contrary, the ship owner will
not be presumed to have relinquished his lien on the cargo for
the freight, notwithstanding he has chartered the vessel to
another. (a) The general right of the master and owner to
retain the goods for the freight is equally perfect, whether the
merchant takes the whole vessel by a charter party or sends his
goods in a general ship. The lien applies, whether the hire of
the vessel be stipulated in a charter party, or the freight be stip-
ulated in the bill of lading. The owner is equally the carrier in
both cases. But if, instead of letting the use of the ship to freight,
the vessel itself be let to hire, and the charterer has the pos-
session and right of control, he is then considered as owner for
the voyage, and the general owner, who has parted with the pos-
session, has no lien on the cargo for the hire of the ship. (b)
When the goods are to be delivered to the consignee on payment
of freight, the consignee makes himself responsible by receiving
the goods under the usual condition expressed in the bill of
lading. (c) And if the goods, by the bill of lading, were to be
delivered to B., or his assigns, he or they paying freight, and the
assignee receives the goods, he is responsible to the master for
the freight, under the implied undertaking to pay it. (d) So,
if the master delivers the goods without payment of the
freight, he may sue the consignee to * whom the goods were
to be delivered, on payment of freight, upon an implied
promise to pay the freight, in consideration of his letting the goods
out of his hands before payment. (a) 1 It was once held, that if
the master parted with the goods to the consignee without secur-
ing his freight, he was deprived of all recourse to the consignor;
but it is now decided otherwise. If the master cannot recover
* 222
(a) Chandler v. Belden, 18 Johns. 157; Clarkson v. Edes, 4 Cowen, 470; Ruggles
v. Bucknor, 1 Paine, 358; Christie v. Lewis, 2 Brod. & B. 410; Pickman v. Woods,
6 Pick. 248; Drinkwater v. The Brig Spartan, Ware, 149; Fernandez v. Silva, 1 La.
274.
(1) Drinkwater v. The Brig Spartan, Ware, 149; Christie v. Lewis, 2 Brod. & B.
410; Story, J., in Kleine v. Catara, 2 Gal. 68.
(c) Roberts v. Holt, 2 Show. 432.
(d) Cock v. Taylor, 2 Camp. 587, afterwards affirmed in K. B., 13 East, 399.
Dougal v. Kemble, 3 Bing. 383, s. p.
(a) Mansfield, C. J., in Brouncker v. Scott, 4 Taunt. 1.
1 See 228, n. 1, (d).
1 See 228, n. 1, (e).
VOL. III.
20
[305]
* 223
[PART V.
OF PERSONAL PROPERTY.
the freight from the consignee to whom he has delivered the
goods, without receiving the freight, he still has his remedy over
on the charter party against the shipper, and the condition pre-
cedent to the delivery inserted in the bill of lading was intended
only for the master's benefit. (b) The buyer of the goods from
the consignee is not answerable for the freight, for that would
prove to be a most inconvenient check to the transactions of
business; and the buyer takes independently of the charge of
freight, unless that charge forms part of the terms of sale. Nor
would he be liable even if he should enter the goods at the cus-
tom-house in his own name while the freight was unpaid. (c)
If part of the cargo be sold on the voyage from necessity, the
owner, as we have seen, pays the value at the port of delivery,
deducting his freight, equally as if the goods had arrived. But
if the goods be prohibited an entry by the government of the
country, and such prohibition takes place after the commence-
ment of the voyage, and the cargo be brought back, the freight
for the outward voyage has been held to have been earned: and
the case was distinguished (though I think the distinction is
not very obvious) from that of a blockade. of the port of destina-
tion, and decided on the authority of the French Ordinance
of the Marine. (d) 2 Nothing can be more just, observes
* Valin, than that the outward freight should be allowed,
in such a case, since the interruption proceeds from
an extraordinary cause, independent of the ordinary marine
* 223
(b) Tapley v. Martens, 8 T. R. 451; Christy v. Row, 1 Taunt. 300; Shepard v. De
Bernales, 13 East, 565; Abbott on Shipping, 5th Am. ed. Boston, 1846, p. 513;
Spencer v. White, 1 Iredell, (N. C.) 236; Layng v. Stewart, 1 Watts & S. 222; Barker
v. Havens, 17 Johns. 234. But in this last case, the goods were owned by the con-
signor, and shipped on his account; and had that not been the case, the action would
not have been sustained. If there be no charter party, the shipper was held, by Lord
Tenterden, not to be liable in such a case. Drew v. Bird, 1 Moody & M. 156. In
Sanders v. Vanzeller, 2 Gale & D. 244, s. c. 4 Ad. & El. n. s. 260, it was held, by
the Q. B., that the acceptance of the goods under the bill of lading by the
consignee did not raise an inference in law of a contract to pay the freight, though
the bill of lading stated, he paying freight for the same. But it was admitted that
the circumstances might be evidence to a jury of such a contract. Independent
of this case, I should have thought that the law would have raised such a con-
tract. [See 228, n. 1, (e).]
(c) Artaza v. Smallpiece, 1 Esp. 23.
(d) Morgan v. Insurance Company of North America, 4 Dall. 455.
2 Compare The Teutonia, L. R. 3 Ad. & Ec. 394, 422; L. R. 4 P. C. 171; post
228, n. 1, (g).
[306]
LECT. XLVII.]
224
OF PERSONAL PROPERTY.
perils. (a) The case of a blockade of, or interdiction of com-
merce with the port of discharge, after the commencement of the
voyage, is held to be different; for, in that case, the voyage is
deemed to be broken up, and the charter party dissolved; and
if the cargo, by reason of that obstacle, be brought back, no
freight is due. (b) The same principle applies if the voyage be
broken up and lost, by capture upon the passage, so as to cause
a complete defeasance of the undertaking, notwithstanding there
was a subsequent recapture, as in the case of the Hiram. (c) On
the other hand, an embargo detaining the vessel at the port of
departure, or in the course of the voyage, does not, of itself,
work a dissolution of the contract. It is only a temporary
restraint, which suspends, for a time, its performance, and leaves
the rights of the parties in relation to each other untouched. (d)
If the ship be laden, and be captured before she breaks ground,
and afterwards recaptured, but the voyage broken up, the ship
owners are not entitled to any freight, though, by the usage of
the trade, the ship was laden at their expense. It is requisite
that the ship break ground, to give an inception to freight. (e)
It is the same thing with a blockade or hostile investment of the
port of departure. Such an obstacle does not discharge the con-
tract of affreightment because it is merely a temporary
suspension of its performance; and the ship owner may
detain the goods until he can prosecute the voyage with
safety, or until the freighter tenders him the full freight. This
was the decision in the case of Palmer v. Lorillard, (a)¹ in which
the doctrine was extensively examined; and it was shown, by a
reference to the foreign ordinances, and the soundest classical
(a) Ord. tit. Du Fret, art. 15; Valin, ib.; Code de Commerce, art. 299.
* 224
(b) Scott v. Libby, 2 Johns. 336; Liddard v. Lopes, 10 East, 526. But in the case
of the Friends, in Edw. Adm. 246, Lord Stowell allowed a pro rata freight, though
the vessel did not reach her port of destination, owing to a blockade; though, in gen-
eral, if the voyage be not performed, the rule of the admiralty, like that of the com-
mon law, is to deny freight. The Louisa, 1 Dods. 317.
(c) 3 C. Rob. 180.
(d) Hadley v. Clarke, 8 T. R. 259; M'Bride v. Marine Insurance Company, 5
Johns. 299, 308; Baylies v. Fettyplace, 7 Mass. 325.
(e) Curling v. Long, 1 Bos. & P. 634.
1 See 228, n. 1, (c); Reed v. United
States, 11 Wall. 591, 606; The Harri-
man, 9 Wall. 161; Allen v. Mercantile
(a) 16 Johns. 348.
Mut. Ins. Co., 44 N. Y. 437. As to perish-
able cargo, see Notara v. Henderson, ante,
212, n. 1.
[307]
* 225
[PART V.
OF PERSONAL PROPERTY.
writers on maritime law, (b) that the master, in the case of such
an invincible obstacle of a temporary nature to the prosecution of
the voyage, is entitled to wait for the removal of it, so that he
may earn his freight, unless the cargo consists of perishable
articles which cannot endure the delay.
He stands upon a
principle of equity which pervades the maritime law of Europe,
if he refuses to surrender the cargo to the shipper without some
equitable allowance in the shape of freight, for his intermediate
service.
When the goods become greatly deteriorated on the voyage,
it has been a very litigated question, whether the consignee was
bound to take the goods, and pay the freight, or whether he
might not abandon the goods to the master in discharge of the
freight. Valin and Pothier entertained opposite opinions upon
this question. (c) The former insists, that the regulation of the
ordinance, holding the merchant liable for freight on deteriorated
goods without the right to abandon them in discharge of the
freight, is too rigorous to be compatible with equity. He says
the cargo is the only proper fund and pledge for the freight, and
that Casaregis (d) was of the same opinion. Pothier, on the
other hand, was against the right of the owner to abandon
* 225 the deteriorated goods in discharge of the *freight; and
this is the better opinion, and the one adopted in the case
of Griswold v. The New York Insurance Company. (a) It is in
accordance with the Ordinances of the Marine, and of Rotterdam,
and with the new commercial code of France; and the latter
puts an end to all further doubt and discussion on the subject
of France. (b) The ship owner performs his engagement when
(b) Ord. de la Mar. liv. 3, tit. 3, Fret, art. 15, and tit. Charte-Partie, art. 8; Valin,
h. t.; Pothier, Charte-Partie, n. 69, 100, 101; Laws of Oleron, art. 4; Consulat,
par Boucher, c. 80, 82, 84; Roccus, de Nav. n. 54; Jacobsen's Sea Laws, by Frick.
295.
(c) Valin's Comm. i. 670; Pothier, Charte-Partie, n. 59.
(d) Disc. 22, n. 46, and Disc. 23, n. 86, 87.
(a) 3 Johns. 321. Mr. Bell says it is likewise the law in Scotland. 1 Bell's Comm.
570; Jordan v. Warren Ins. Co., 1 Story, 342. [Post, 228, n. 1, (ƒ).]
(b) Ord. tit. Du Fret, art. 25; Ord. of Rotterdam, art. 155; Code de Com. art.
305, 310; Boulay-Paty, ii. 488. The foreign ordinances and the discussions of the
foreign jurists on this litigated question, whether the merchant can abandon the dete-
riorated goods when brought to the place of destination, and thereby discharge him.
self from the freight, are stated at large in Abbott on Shipping, 5th Am. ed. Boston,
1846, 516-523.
[ 308 ]
LECT. XLVII.] OF PERSONAL PROPERTY.
* 226
he carries and delivers the goods. The right to his freight then
becomes absolute, and the carrier is no more an insurer of the
soundness of the cargo, as against the perils of the sea, or its
own intrinsic decay, than he is of the price in the market to
which it is carried. If he has conducted himself with fidelity
and vigilance in the course of the voyage, he has no concern
with the diminution of the value of the cargo. It may impair
the remedy which his lien afforded, but it does not affect his
personal demand against the shipper.
If casks contain wine, rum, or other liquids, or sugar, and the
contents be washed out, and wasted, and lost, by the perils of
the sea, so that the casks arrive empty, no freight is due for
them;¹ but the ship owner would still be entitled to his freight,
if the casks were well stowed, and their contents were essentially
gone by leakage, or inherent waste, or imperfection of the
casks. (c)
{
* 226
Should the cargo consist of live stock, as is frequently the
case in voyages from this country to the West Indies, and some
of the horses or cattle, for instance, should die in the course of
the voyage, without any fault or negligence of the master or
crew, and there be no express agreement respecting the payment
of freight, the general rule is, that the freight is to be paid
for all that were put on board.2 But if the agreement * was
to pay for the transportation of them, then no freight is
due for those that die on the voyage, as the contract is not,
in that case, performed. (a) The foreign marine law allows
freight paid in advance to be recovered back, if the goods be not
carried, nor the voyage performed, by reason of any event not
imputable to the shipper. (b) The reason is, that the considera-
tion for payment, which was the carriage of the goods, has
failed. But the marine ordinances admit that the parties may
stipulate that the freight so previously advanced, shall, at all
events, be retained. In Watson v. Duykinck, (c) the rule of the
(c) Molloy, b. 2, c. 4, sec. 14; Frith v. Barker, 2 Johns. 327.
(a) Dig. 14. 2. 10; Molloy, b. 2, c. 4, sec. 8.
(b) Ord. de la Mar. tit. Du Fret, art. 18; Roccus, de Nav. et Naulo, n. 80; Cleirac,
Les Us et Coutumes de la Mer, 42; Code de Commerce, art. 302.
(c) 3 Jolins. 335.
1 Duthie v. Hilton, L. R. 4 C. P. 138.
See The Collenberg, 1 Black, 170; Gunther
v. Colin, 3 Daly, 125; post, 228, n. 1, (ƒ).
2 But see Gibson v. Sturge, 10 Exch
622, 639; post, 228, n. 1, (ƒ).
[ 309 ]
227
[PART V.
OF PERSONAL PROPERTY.
marine law was recognized, though it was not applied to that
case, because the contract there appeared to be that the freight
was paid for receiving the passenger and his goods on board;
and, in such a case, the payment is to be retained, though the
vessel and cargo be lost on the voyage. The general principle
of the marine law was admitted in the fullest latitude, in Griggs
v. Austin; (d) 1 and whether the freight previously advanced is
to be retained or returned becomes a question of intention in the
construction of the contract. The French ordinances require a
special agreement to enable the ship owner to retain the freight
paid in advance; and Valin says, (e) that many authors on mari-
time jurisprudence, as Kuricke, Loċcenius, and Straccha, will
not allow even such a special agreement to be valid. (ƒ)
*227 * The English law is not so scrupulous, and does not
require any such express stipulation, and allows the inten-
tion of the parties to retain the previously advanced freight to be
more easily inferred. In De Silvale v. Kendall, (a) the Court
of K. B. adopted a directly opposite principle, and observed,
that if the charter party was silent, the law would require a per-
formance of the voyage before freight was due; but the parties
(d) 3 Pick. 20.
(e) Comm. i. 661.
(f) Straccha, in his Tractatus de Mercatura, tit. de Nav. part 3, n. 24, as referred
to by Valin, does not support the reference. He only says it was a question whether
the advanced freight was to be returned when the goods were not carried, and that a
ratable freight, in such case, was equitable.
(a) 4 Maule & S. 37. In Saunders v. Drew, 3 B. & Ad. 445, the doctrine of the
case of De Silvale v. Kendall was admitted, that freight paid in advance could not
be recovered back without an agreement to that effect. The rule in this country is
more reasonable, and it requires a stipulation that the freight paid in advance is not
to be returned if the voyage be not performed, otherwise the shipper may recover it
back. Pitman v.. Hooper, 3 Sumner, 50.
1 Recovery of Prepaid Freight. The
later American cases follow those men-
tioned in the text. Phelps v. William-
Bon,
5 Sandf. 578; The Kimball, 3 Wall.
37, 45; Brown v. Harris, 2 Gray, 359;
Benner v. Equitable Safety Ins. Co., 6
Allen, 222; Lee v. Barreda, 16 Md. 190;
Atwell v. Miller, 11 Md. 348. But in Eng-
land the doctrine that freight cannot be
recovered back when it has been paid in
advance is regarded as too firmly settled
to be departed from, even in a court of ap-
peal. It is not thought satisfactory, how-
ever, and would probably not be extended
to a case where the payment could be con-
strued not to have been made on account
of freight. For instance, where it was
only intended to make good the loss of
lien caused to the owners by the master's
signing bills of lading at a lower rate than
the charter party freight; or to be a mere
loan. Byrne v. Schiller, L. R. 6 Ex. 319;
Hicks v. Shield, 7 El. & Bl. 633; Jackson
v. Isaacs, 3 Hurlst. & N. 405; De Cuadra
v. Swann, 16 C. B. n. s. 772.
[310]
LECT. XLVII.]
OF PERSONAL PROPERTY.
* 228
might stipulate that part of the freight be paid in anticipation,
and be made free from subsequent contingency of loss, by reason.
of loss of the subsequent voyage. If freight be paid in advance,
and there be no express stipulation that it shall be returned in
the event of freight not being earned, the inference is, that the
parties did not intend that the payment of the part in advance
should be subject to the risk of the remainder of the voyage;
and without some provision of that kind, a new implied contract
to that effect could not be raised. (b)
The question as to the right to a ratable freight arises in two
cases; (1) when the ship has performed the whole voyage, and
has brought only a part of her cargo to the place of destination;
(2) when she has not performed her whole voyage, and the
goods have been delivered to the merchant, at a place short of
the port of delivery. In the case of a general ship, or one char-
tered for freight, to be paid according to the quantity of goods,
freight is due for what the ship delivers. (c) 1 The contract, in
such a case, is divisible in its own nature. But if the ship be
chartered at a specific sum for the voyage, and she loses part of
her cargo by a peril of the sea, and conveys the residue, it has
been a question, whether the freight could be apportioned. The
weight of authority, in the English books, is against the appor-
tionment of freight in such a case, (d) and the question
has been repeatedly discussed and determined of late * 228
years. It has been held that the contract of affreightment
was an entire contract; and unless fully performed by delivery
of the whole cargo, no freight was due under the charter party,
in the case where the ship was chartered for a specific sum for
the voyage. The delivery of the whole cargo is, in such a case,
(b) See Abbott on Shipping, 5th Am. ed. Boston, 1846, 496, 497.
(c) Ritchie v. Atkinson, 10 East, 295.
(d) Bright v. Cowper, 1 Brownlow, 21, and this case is cited with approbation by
Grose, J., in 7 T. R. 385. Malynes, in his Lex Mercatoria, 100, is of opinion that
there is no freight due, though he speaks in a loose and questionable manner. But
Abbott, in his Treatise on Shipping, 5th Am. ed. Boston, 524, thinks it hard that the
owners should lose the whole benefit of the voyage, where the object of it has been
in part performed, and no blame is imputable to them. Holt, in his System of
Shipping, Int. 89, says that a partial freight is due when the ship has brought part
of the goods in safety to the place of destination, for a proportionate benefit has been
1eceived.
1 Price v. Hartshorn, 44 N. Y. 94; post, 228, n. 1, (ƒ).
[311]
* 223
[PART V.
OF PERSONAL PROPERTY.
a condition precedent to the recovery of freight. The stipulated
voyage must be actually performed. A partial performance is
not sufficient, nor can a partial payment be claimed, except in
special cases. (a) ¹
1
(a) Post v. Robertson, 1 Johns. 24; The Ship N. Hooper, U. S. C. C. Mass., May,
1839, 3 Sumner, 542. See, also, Clarke v. Gurnell, 1 Bulst. 167; Cook v. Jennings, 7
T. R. 381; Osgood v. Groning, 2 Camp. 466; in which the necessity of a precise per-
formance of the covenant to transport and deliver the cargo is required, before an
action for the freight can be maintained.
1 Freight.
(a) As stated, 219, deliv-
ery as well as conveyance is a condition
precedent to the earning of freight. Brown
v. Tanner, L. R. 3 Ch. 597, 603; Cato v.
Irving, 5 De G. & Sm. 210, 224; Duthie
v. Hilton, L. R 4 C. P. 138; Clendaniel
v. Tuckerman, 17 Barb. 184; Brittan v.
Barnaby, 21 How. 527; Black v. Rose,
2 Moore, P. C. N. s. 277; General Steam
Nav. Co. v. Slipper, 11 C. B. n. s. 493.
As to the effect of a transfer of the ship
on the right to freight, see 138, n. 1;
Wilson v. Wilson, L. R. 14 Eq. 32.
(b) Lien for. According to Mr. Jus-
tice Sprague, the lien for freight is al-
most the only exception to the general
rule that maritime liens do not depend
upon possession. The Anna Kimball,
2 Sprague, 33; (reversed 3 Wall. 37;
inf.)
But according to Chief Justice
Taney, there are other cases inconsistent
with such a rule, and the rule cannot be
maintained in the admiralty courts of
the United States. Bags of Linseed, 1
Black, 108, 113; s. c. 1 Cliff. 68; post,
234, n. 1.
(c) A merchant who has laden goods
on a general ship is not entitled at
pleasure to demand them back, even
before the ship has broken ground, with-
out paying the freight that might have
become due for the carriage of them,
and indemnifying the master against the
consequences of any bill of lading signed
by him. Tindall v. Taylor, 4 El. & Bl.
219; Bartlett v. Carnley, 6 Duer, 194;
The Hermitage, 4 Blatchf. 474. Although
when he had actually removed them un
der such circumstances, the freight which
was, or by reasonable diligence might
have been earned in place of the stipu-
lated freight was deducted in measuring
the damages. Bailey v. Damon, 3 Gray,
92. But see The Hermitage, sup.
(d) When, by the bill of lading, the
sum called freight therein is to be paid
by the shipper at the port of shipment
one month after sailing, vessel lost or not
lost, no lien can be maintained upon the
goods against the consignees of the goods
at the port of discharge if in fact the
money has not been paid. In fact such
a sum is not freight, but money paid for
taking the goods on board and undertak-
ing to carry, not for carrying them;
and as it is not freight, a lien upon the
goods for it is not created by implication
of law, but must be expressly contracted
for, and calling the sum freight in the bill
of lading does not amount to such a con-
tract. Kirchner v. Venus, 12 Moore, P.
C. 361, 389, 390; How v. Kirchner, 11
Moore, P. C. 21; McLean v. Fleming, L.
R. 2 H. L. Sc. 128, 132; Gray v. Carr, L.
R. 6 Q. B. 522, 536, 541.
R. 6 Q. B. 522, 536, 541. This principle
seems to explain Raymond v. Tyson (The
Orphan), 17 How. 53; 1 Cal. 423. Com-
pare Howard v. Macondray, 7 Gray, 516,
519; Paynter v. James, L. R. 2 C. P.
348; affirmed 16 W. R. 768; Duthie v.
Hilton, L. R. 4 C. P. 138.
A lien for dead freight may be created
by express contract, but there seems still
to be some uncertainty in construing such
contracts and determining the extent of
such à lien. The point in doubt is whether
[312]
LECT. XLVII.]
* 228
OF PERSONAL PROPERTY.
The apportionment of freight usually happens when the ship is
forced into a port short of her destination, and cannot finish the
unliquidated damages for breach of a con-
tract to load a full cargo, can be called dead
freight, or whether that term must be con-
fined to cases where there is a liability to
pay for a full cargo of an ascertained
quantity at a certain rate, whether a full
cargo is loaded or not. Gray v. Carr, L.
R. 6 Q. B. 522; McLean v. Fleming, L.
R. 2 H. L. Sc. 128; Pearson v. Goschen,
17 C. B. N. s. 352. But compare The
Hyperion, ante, 206, n. 1, (c).
Another difficult question arises when
a receipt of part of the freight is indorsed
upon the bill of lading, and that docu-
ment is transferred to one who takes it
bona fide and for value, ante, 207, n. 1.
In a case where the sum receipted for
was in fact not paid in cash, but by a ne-
gotiable instrument which was not dis-
honored when the goods arrived, there
was held to be no lien for that sum, not-
withstanding a probability that the instru-
ment would be dishonored by reason of
the acceptor's insolvency. Tamvaco v.
Simpson, L. R. 1 C. P. 363; affirming 19
C. B. N. s. 453. See Kirchner v. Venus,
12 Moore, P. C. 361, 399, 400. In a some-
what similar case, except that there does
not appear to have been a transfer of the
bill of lading to a bona fide holder for
value, the Supreme Court of the United
States held that the lien for freight was
not displaced by a note having been given
for part of the amount. It was considered,
in accordance with the American doc-
trine (ante, 227, n. 1), that freight paid in
advance could be recovered back if the
vessel did not arrive, and was therefore
properly called freight, and that the or-
dinary incidents of freight were not taken
away by the receipt of a note maturing
at the time of the anticipated arrival of
the vessel. The note was not payment.
The Kimball, 3 Wall. 37; 2 Cliff. 4; 2
Sprague, 33.
not affect the lien on what remains on
board. There is a lien on the latter for
the whole of the freight. Sears v. Bags
of Linseed, 1 Cliff. 68; The Roecliff, 38
L. J. N. s. Ad. 56; Fox v. Holt, 36 Conn.
558, 564.
(e) Personal Liability. The principle
of Sanders v. Vanzeller, 222, n (b), as to
the consignee's liability, is approved in
Blanchard v. Page, 8 Gray, 281, 293;
Gage v. Morse, 12 Allen, 410; see, also,
Swett v. Black, 2 Sprague, 49; as well as
in later English cases. Young v. Moeller,
5 El. & Bl. 755, 760; Zwilchenbart v.
Henderson, 9 Exch. 722, 728. The lan-
guage of some other cases seems to sup-
port the opinion expressed by the author.
Morse v. Pesant, 2 Keyes, 16; Shaw v.
Thompson, Olcott, 144, 149; Philadel-
phia & Read. R. R. v. Barnard, 3 Ben. 39.
As stated in the text, 222, it is well set-
tled that the carrier does not lose his action
on the contract against the shipper by
giving up his lien on the goods. Wooster
v. Tarr, 8 Allen, 270; Holt v. Westcott,
43 Me. 445; Jobbitt v. Goundry, 29
Barb. 509. But it is now not unusual
to insert a clause in the charter party
to the effect that the charterer's re-
sponsibilities are to cease on shipment
of the cargo, provided it be of suffi-
cient value to cover the freight and
charges on arrival at the port of dis-
charge; and that the owner is to have an
absolute lien on the cargo for all freight,
dead freight, demurrage, and average.
Some of the cases arising upon such
clauses, and the construction of them,
are, Gray v. Carr, L. R. 6 Q. B. 522;
Bannister v. Breslauer, L. R. 2 C. P. 497,
criticised in Gray v. Carr; Oglesby v.
Yglesias, E. B. & E. 930; Milvain v.
Perez, 3 El. & El. 495. Whether and how
far such a lien is retained against the bill
of lading, will depend on how far the bill
The partial delivery of the cargo does of lading has incorporated the terms of
[313]
* 228
[PART V.
OF PERSONAL PROPERTY.
voyage. In that case, if the owner of the goods will not allow
the master a reasonable time to repair, or to proceed in another
the charter party. Ante, 207, n. 1; Gray
v. Carr, sup. See, also, Kirchner v. Venus,
12 Moore, P. C. 361, 400.
(f) Deductions for Damages. If the
goods have arrived, they cannot be aban-
doned by the charterer to the ship owner
in discharge of freight due on the charter
party because they have been so damaged
as to turn out of less value than the
freight, although the loss was caused by
the negligence of the master and crew.
In the English courts, the remedy for
culpable damage must be sought in a dis-
tinct proceeding. It seems that if there
is a loss of quantity or change of quality,
the question is whether the thing, for the
carriage of which freight was to be paid,
or any and how much of it, has substan-
tially arrived. If only a part has so ar-
rived, it seems that freight is payable in
respect of that part, unless the charter
party make the carriage of the whole a
condition precedent to the earning of any
freight, which is not usual in England.
Dakin v. Oxley, 15 C. B. N. s. 646, 667,
665; Meyer v. Dresser, 16 C. B. N. s.
646, 659; The Norway, Brown. & Lush.
377, 394; 13 W. R. 296; s. c. on appeal,
Brown. & Lush. 404, 409; 3 Moore, P. C.
N. s. 245, 265, 266; 11 Jur. N. s. 892, 893.
See The Don Francisco, Lush. 468; 31 L.
J. N. s. Ad. 14; The Salacia, Lush. 578, 582;
Gibson v. Sturge, 10 Exch. 622; Libby v.
Gage, 14 Allen, 261, 264. It follows, a
fortiori, that when there is a demise of the
ship for a lump sum in the nature of a
rent, although improperly called freight,
a deduction cannot be allowed on account
of goods not delivered in consequence of
sea perils. The Norway, 3 Moore, P. C.
N. s. 245, 265. On the other hand, when
the freight, properly so called, for a mixed
cargo, was fixed at a lump sum by the
bill of lading, the contract has been re-
garded as entire, and a loss by the fault
of the carrier or his servant of any part
of the goods shipped, will defeat his right
to recover any freight. Sayward v.
Stevens, 3 Gray, 97. See Libby v. Gage,
14 Allen, 261, 264.
The American statutes of set-off are
said to be more liberal than the English,
and the American admiralty courts have
generally allowed damage to the cargo
to be recouped from the freight money,
independent of statute, on the ground
that the counter claim is founded on the
same charter party. But it has been said
that if the damages sustained by the
respondent should exceed the just claim
of the libellant, not only could the court
give no decree for the excess, but the
respondent could not afterwards main-
tain a suit for such excess. Snow v. Car-
ruth, 1 Sprague, 324; Bearse v. Ropes,
ib. 331; Nichols v. Tremlett, ib. 361, 367;
Kennedy v. Dodge, 1 Benedict, 311;
Thatcher v. McCulloh, Olcott, 365; Brad-
street v. Heron, Abbott, Adm. 209, 214;
Zerega v. Poppe, ib. 397. Compare O’Con-
nor v. Varney, 10 Gray, 231; but see
Davis v. Hedges, L. R. 6 Q. B. 687; ante,
ii. 479, n. 1, ad finem.
The
(g) Freight pro rata itineris.
principle of the text, 229, that voluntary
acceptance at an intermediate port by the
freighter, is the basis of a claim to pro rata
freight is confirmed by Atlantic Mut. Ins.
Co. v. Bird, 2 Bosw. 195; The Soblom-
sten, L. R. 1 Ad. & Ec. 293; The New-
port, Swabey, 335; Ridyard v. Phillips,
4 Blatchf. 443; McKibbin v. Peck, 39
N. Y. 262. See, especially, Blasco v.
Fletcher, 14 C. B. N. s. 147. In The Teu-
tonia, L. R. 3 Ad. & Ec. 394; L. R. 4
P. C. 171, the owners of a vessel, who
were prevented from completing the voy-
age by the breaking out of war, were held
not bound to deliver the cargo at an in-
termediate port without some compensa-
tion. If the master sells the goods at an
intermediate port where the freighter is
[ 314 ]
LECT. XLVII.]
* 229
OF PERSONAL PROPERTY.
ship, the master will be entitled to the whole freight, because the
freighter is the cause of the contract not being performed.
*
But
if he consents, and the master refuses to go on, he is not entitled
to freight, because he has not performed his contract. To entitle
himself to freight, the master must proceed, or offer to proceed,
in another vessel, or repair his own, and take on the cargo; and
if he proceeds, he reassumes his usual risk of losing the
freight by the loss of the cargo in the subsequent part * 229
of the voyage, or of earning freight by its safe arrival and
delivery at the port of destination. If, however, the merchant
accepts the goods at the intermediate port, the general rule of the
marine law is, that freight is to be paid according to the propor-
tion of the voyage performed, and the law will imply such a con-
tract. This doctrine pervades the marine ordinances and writers
on marine law; (a) and it is now equally well settled in the Eng-
lish and American law, that freight, pro rata itineris, is due, when
the ship, by inevitable necessity, is forced into a port short of her
destination, and is unable to prosecute the voyage, and the goods
are there voluntarily accepted by the owner. Such acceptance
constitutes the basis of the rule for a pro rata freight; and it must
(a) Laws of Oleron, art. 4; Ord. of Wisbuy, art. 16; Roccus, n. 81; Straccha, de
Navibus, pt. 3, n. 24; Ord. de la Mar. liv. 3, tit. 3, Du Fret, art. 21, 22.
not and cannot be consulted, under circum-
stances in which it is the freighter's in-
terest that they should be sold, no freight
is due, although the freighter claims the
proceeds of the sale. The master is agent
ex necessitate for the freighter so far as to
validate the sale, ante, 212, n. 1; but is held
not to be agent to accept the goods on the
freighter's behalf at the intermediate port,
on terms of paying pro rata freight. The
Ann D. Richardson, Abbott, Adm. 499.
See Miston v. Lord, 1 Blatchf. 354; Rich-
ardson v. Young, 38 Penn. St. 169; Lord
v. Neptune Ins. Co., 10 Gray, 109. Doubts
of the soundness of this doctrine have
been intimated. Notara v.
Notara v. Henderson,
L. R. 5 Q. B. 346, 356. The question,
whether freight can be recovered if the
vessel is lost before completing the ser-
vices contemplated, depends on the con-
struction of the charter party. When-
1
ever the payment of freight is to be made
by time only, it is due and earned at
each interval specified, unless otherwise
expressly agreed. In such case, each of
the stipulated periods of payment, if such
are provided for in the charter party, is to
be considered as if it were a separate voy-
age. McGilvery v. Capen, 7 Gray, 525,
528; Brewer v. Churchill, 45 Me. 64.
Cases where the voyage contemplated in
the charter party was held to be entire
are Towle v. Kettell, 5 Cush. 18; Dona-
hoe v. Kettell, 1 Cliff. 135.
2 The Bahia, Brown. & Lush. 292,
305; 11 Jur. N. s. 90; Brown. & Lush.
167; 33 L. J. N. s. Ad. 97; Cargo ex
Galam, 2 Moore, P. C. N. s. 216, 229;
The Soblomsten, L. R. 1 Ad. & Ec. 293;
Hart v. Shaw, 1 Cliff. 358; 1 Sprague,
567; Whitney v. Rogers, 2 Disney, 421.
See 212, n. 1.
[315]
230
[PART V.
OF PERSONAL PROPERTY.
be a voluntary acceptance, and not one forced upon the owner by
any illegal or violent proceeding. The numerous cases upon
which this doctrine is sustained are all founded upon that of
Luke v. Lyde, and that case rested upon the decision in the House
of Lords, in 1733, in Lutwidge & How v. Grey. (b) If the out-
ward and homeward voyages be distinct, freight is recoverable
for the one, though the other be not performed. But if, by the
terms of the contract, they be one voyage, and the ship perform
the outward, and fails to perform the homeward voyage, no freight
is recoverable. (c)
* 230
1
*The rule by which the amount of the ratable freight is
to be ascertained is, to ascertain how much of the voyage
had been performed when the disaster happened which compelled
the vessel to seek a port, according to the mode of adjustment
pursued in Luke v. Lyde; or else to calculate how much of the
voyage had been performed when the goods arrived at the port
of necessity, according to the better course pursued in the cases
in this country. (a)
8. Of Loss from Collision of Ships. This has been a difficult sub-
ject for discussion and decision, and various opinions have been
entertained by the writers on maritime law. The evidence as to the
true cause of the collision is of difficult access. The accident usu-
ally happens in the darkness of night, or in a storm, and is neces-
(b) Cited in Abbott on Shipping, 5th Am. ed. Boston, 529, 530; Luke v. Lyde, 2
Burr. 883; Cook v. Jennings, 7 T. R. 381; Hunter v. Prinsep, 10 East, 378; Liddard
v. Lopes, ib. 526; Abbott on Shipping, id. 531; Robinson v. Marine Insurance Com-
pany, 2 Johns. 323; Hurtin v. Union Ins. Company, cited in Condy's Marshall on
Ins. 281, 601, [1 Wash. 530;] Caze v. Baltimore Insurance Company, 7 Cranch,
358; Armroyd v. Union Insurance Company, 3 Binney, 437; Welch v. Hicks, 6
Cowen, 504; Vance v. Clark, 1 La. 324; Tio v. Vance, 11 La. 199; The Ship N.
Hooper, U. S. C. C. Mass. May, 1839, 3 Sumner, 542; Vlierboom v. Chapman, 13
M. & W. 230. In Baillie v. Moudigliani, Park on Ins. c. 2, p. 70, it was held by
Lord Mansfield, that as between the owners of the ship and cargo, in case of a total
loss, no freight is due; but if part of the cargo be saved, and the merchant takes it,
freight pro rata is due. But as between the owners of the cargo and the insurer, the
latter is not responsible for freight. See Abbott on Shipping, 5th Am. ed. Boston,
534, note 1. In this last work the learned American editor, 547-550, and ib. 564–566,
has collected and summarily stated the American cases on this refined and vexatious
question of a pro rara freight.
(c) Lawes on Charter Parties, 149, 150; Mackrell v. Simond, 2 Chitty, 666.
(a) Marine Insurance Company v. Lenox, cited and approved of in Robinson v.
Marine Insurance Company, 2 Johns. 323; Coffin v. Storer, 5 Mass. 252.
1 See 228, n. 1, (g).
[ 316 ]
LECT. XLVII.]
* 230
OF PERSONAL PROPERTY.
1
sarily accompanied with confusion and agitation. When the fact is
clear, that a fault was committed by one party, or that he was in
want of due skill or care, and the disaster was the consequence
thereof, the party in fault must pay all the damages. The plain-
tiff may be in fault to a certain extent, and yet not to such an
extent as to prevent his recovering; though it would seem, that
if he or his agents substantially contributed to the injury, he can-
not recover. (b) There are settled nautical rules, by which, in
most cases, the want of skill or care or duty may be ascertained.
Thus the vessel that has the wind free, or is sailing before or
with the wind, must get out of the way of the vessel that is close-
hauled, or sailing by or against it. (c) The vessel on the star-
board tack has a right to keep her wind, and the vessel on the
larboard tack is bound to give way to the other, or bear up or
heave about to avoid danger, or be answerable for the conse-
quences. (d) The vessel to windward is to keep away when
both vessels are going the same course in a narrow channel, and
there is danger of running afoul of each other. (e)²
But in
(b) Raisin v..Mitchell, 9 Carr. & P. 613; Baron Parke, in the case of Bridge v.
The Grand Junction Railway Company, 3 M. & W. 244; Butterfield v. Forrester, 11
East, 60; 38 E. C. L. R. 254, note; Sills v. Brown, 9 Carr. & P. 601. By whose fault
the collision happened is a question of fact for a jury; and the actual damage at the
time and place of the injury, and not the probable profits at the port of destination,
is the measure of value in damages, in cases of collision as well as in cases of insur-
Smith v. Condry, 1 How. 28.
ance.
(c) Sills v. Brown, 9 Carr. & P. 601. The custom in England, in the case of car-
riages on land meeting each other, is, that each driver must pass to his own left hand.
The rule is directly otherwise in this country, or at least in Massachusetts and New
York. N. Y. R. S. 3d ed. i. 873; Kennard v. Burton, Law Reporter, July, 1826, [25
Me. 39.] By the New York Revised Statutes, 3d ed. i. 859, steamboats on the waters
of that state meeting each other, the boats are to pass on the starboard, or right side
of each other. Careful regulations are made in respect to the safe landing of pas-
sengers. When two steamboats are going in the same direction, they must not
approach within twenty yards of each other; and in the night time, each boat and
all vessels on the waters of the state must show good and sufficient lights.
(d) The Woodrop-Sims, 2 Dods. 83; The Thames, 5 C. Rob. 345; Jameson v.
Drinkald, 12 Moore, 148; The Celt, 3 Hagg. Adm. 321; Raisin v. Mitchell, 9 Carr. &
P. 613.
(e) Marsh v. Blythe, 1 M'Cord, 360. In many ports there are Trinity IIouse
regulations, requiring vessels at anchor in a navigable river, or port of much com-
merce, to have a light hung out conspicuously in dark nights. It was said, in Carsley
v. White, 21 Pick. 254, that there was no general and absolute usage on the subject,
and that the omission of the light might or might not be a fatal negligence, according
1 See 232, n. 1, (b).
which interprets the rule to be drawn
2 But see 1 Pars. Shipping, 568, n. 1, from Marsh v. Blythe, sup., differently.
[317]
* 231
[PART V.
OF PERSONAL PROPERTY.
*231 the case of a steam vessel, * which has greater power, and
is more under command, she is bound to give way to a
vessel with sails. (a)¹ So a neglect of due means to check a
to the circumstances. But the Ch. J. of Pennsylvania, in Simpson v. Hand, 6
Wharton, 324, more justly considered, that the hoisting of a light in a river or harbor
at night, amid an active commerce, was a precaution imperiously demanded by pru-
dence, and he did not see how it could be considered otherwise than as negligence
per se.
Train v. Steamboat N. A., 2 N. Y. Legal Observer, 67, s. p.
(a) The Shannon, 2 Hagg. Adm. 173. In the case of Lowry v. The Steamboat
Portland, in the U. S. D. C. for Mass., January, 1839, it was certified by experienced
navigators, and adjudged by the court as the rule on the subject, that when two ves-
sels approach each other, both having a free or fair wind, each vessel passes to the
right; and that a steamer was considered as always sailing with a fair wind, and is
bound to do whatever a sailing vessel going free, or with a fair wind, would be required
to do under similar circumstances. A steamer must back her engines immediately
when hailed in a fog. Case of the Perth, 3 Hagg. Adm. 414.
1 Rule of the Road. - Rules concerning
lights, fog signals, steering, and sailing,
are laid down by the British Merchant
Shipping Act Amendment Act 1862, St.
25 & 26 Vict. c. 63, § 25, and Table C.,
and by the Order in Council passed in pur-
suance thereof, Jan. 9, 1863, Lush. app.
Ixxii. et seq.; Holt's Rule of the Road;
2 Pritch. Adm. Dig. app. ccxxviii. These
rules have been adopted in the United
States by act of Congress of April 29,
1864, c. 69, 13 St. at L. 58; The Carroll,
8 Wall. 302; The Potomac, ib. 590; and
many other cases in Wallace. By subse-
quent Orders in Council, the British rules
are made applicable to ships belonging
to the countries named therein, including
most of the countries of Europe and Am-
erica, whether within British jurisdiction
or not, in accordance with the consent of
those countries. The effect of the latter
orders by § 61 of the act is, that in all
cases arising in any British court, such
ships are to be deemed subject to the
British rules, and for the purposes of
those rules to be treated as if they were
British ships. In the British admiralty,
therefore, the British rules would be ap-
plied to a case of collision between two
foreign ships, if they belonged to countries
which had acceded to those rules, and
which had accordingly been included in the
Orders in Council. The New Ed v. The
Gustav, reported on this point in Holt's
Rule of the Road, 28, 29.
Before the British law was thus made
applicable to foreign vessels in the British
courts by the consent of the foreign gov-
ernments, it was held that it did not
govern even British ships in cases of col-
lision on the high seas with foreign ves-
sels, on the ground of want of mutuality.
Such cases were decided by the ordinary
rules of the sea, whether the suit was
brought by the foreign or by the English
vessel. The Zollverein, Swabey, 96; 2
Jur. N. s. 429; 4 W. R. 555; The Sax-
onia, Lush. 410; The Chancellor, 14
Moore, P. C. 202; The Belle, 1 Bene-
dict, 317. But compare the language of
The Cleadon (Stevens v. Gourley), 14
Moore, P. C. 92, 97.
The United States statute contains no
clause like § 61 of the British act, sup.;
but in a case of collision between British
and American ships, the provisions com-
mon to the law of both countries were
thought in the District Court to govern
the United States vessel, on the ground
that those provisions had been adopted
by nearly all the nations whose ships
usually navigated the waters where the
collision took place, and were therefore to
be considered the ordinary rules of the
[318]
LECT. XLVII.]
* 231
OF PERSONAL PROPERTY.
vessel entering a river or harbor where others lie at anchor, is
a fault which creates responsibility for damages which may
ensue. (b) Where the collision arose by vis major, or physical
causes exclusively, and without any negligence or fault in any one,
open or concealed, the proprietors of the ship or cargo injured
must bear their own loss, and it is not the subject of apportion-
ment, or contribution, or of general average in any form. This
was the doctrine of the Roman law, and this is the rule of the
maritime law of Europe. (c) The greatest difficulty on the subject
has arisen in the cases in which the collision proceeded evidently
from error, neglect, or want of sufficient precaution, but the neg-
lect or fault was either inscrutable, or equally imputable to both
parties. In this case, of blame existing which is undiscoverable,
(b) The Neptune 2d, 1 Dods. 467. But if a vessel anchors in an improper place,
as in the thoroughfare pass of a river, her owner must abide the consequences of a
collision, unless other circumstances alter the equity of the case. Strout v. Foster,
1 How. 89 The Trinity House Charter of Deptford Strong, for the London trade,
was first granted by Henry VIII., and has been renewed and modified by subsequent
kings. The Trinity House Rules of 1840, as stated in the case of the Friends, in the
Admiralty, Hil. Term, 1843, 1 Wm. Rob. 484, declared that vessels having the
wind fair shall give way to those on the wind; that when both are going by the wind,
the vessel on the starboard tack shall keep the wind, and the one on the larboard tack
bear up, thereby passing each on the larboard hand; that when both vessels have the
wind free, large or abeam, and meet, they shall pass each other in the same way on
the larboard hand, and to effect it the helm must be put to port.
Steam vessels are considered in the light of vessels navigating with a fair wind, and
should give way to sailing vessels on a wind on either tack. When steam vessels on
different courses must necessarily cross so near, that by continuing their courses there
would be a risk of coming in collision, each vessel should put her helm to port, so
as always to pass on the larboard side of each other. A steam vessel passing another
in a narrow channel must always leave the vessel she is passing on the larboard hand.
There must be exceptions to these rules, says Dr. Lushington, implied by common
sense; and if a steamer goes with great rapidity in hazy weather or dark nights, she
is responsible for collision. The Rose, Adm. Hil. Term, 1843, [2 W. Rob. 1.]
See McCulloch's Dict. for the Trinity House Regulations. The difficulties occurring
in the application of these general rules, and the cases which have arisen on the
vexed questions, are learnedly examined in a work where we should not have
expected such a discussion. Westminster Review for September, 1844, 117. Sec,
also, the chapter on Collision, in Abbott on Shipping, 5th Am. ed. Boston, 1846, 228.
(c) Dig. 9. 2. 29; Consulat de la Mer, par Boucher, 200-203; Abbott on Shipping,
pt. 3, c. 8, sec. 12; Marshall on Insurance, 493; Pardessus, Droit Com. iii. n. 652;
Jameson v. Drinkald, 12 Moore, 148; The Ligo, 2 Hagg. Adm. 356; The Woodrop-
sea in that place. The Circuit Court
seemed hardly prepared to go so far, but
considered that the English decisions just
referred to were wrong, and that the act
of Congress must be taken to regulate the
conduct of our vessels towards those of
other countries as well as towards those of
the United States. The Scotia, 7 Blatchf.
308; s. c. 14 Wall. 170.
[319]
* 232
[PART V.
OF PERSONAL PROPERTY.
the marine law, by a rusticum judicium, apportions the loss, as
having arisen equally by the fault of both parties. (d) The rule
is universally declared by all the foreign ordinances and jurists;
and its equity and expediency apply equally where both parties
are to blame, and where the fault cannot be detected. But,
according to the English and American rule in the courts of com-
mon law, if there be fault or want of care on both sides, or with-
out fault on either side, neither party can sue the other. (e) The
general rule of the maritime law is, to make the ships contribute
equally, without regard to their relative value, and Valin con-
siders this to be the shorter, plainer, and better rule. (ƒ) There
has been much difference in the codes and authorities in
*232 maritime law, whether the cargo, as well as the * ship, was
to contribute to the loss.¹ Valin contends that the con-
Sims, 2 Dods. 85; Bell's Comm. i. 579, 580, 581; Story, J., in 2 Phillips [on Ins.] 183,
2d ed.
(d) Cleirac, Us et Coutumes de la Mer, 68; The Woodrop-Sims, 2 Dods. 85;
The De Cock, Eng. Adm. 18 9; The Am. Jurist, January, 1840, [xxii.] 464; Le Neve
v. Edin. and London Shipping Company, Bell's Comm. i. 581, note, 2d ed.; Reeves v.
The Ship Constitution, Gilpin, 579; Rogers v. Brig Rival, District Court of Mass.
Law Reporter for May, 1846, p. 28. [See 232, n. 1, (a).]
(e) Vanderplank v. Miller, 1 Moody & M. 169; Vennall v. Garner, 1 Crompt. &
M. 21; Simpson v. Hand, 6 Wharton, 311; Story, J., in the case of the Paragon,
Phillips on Ins. ii. 183; Abbott on Shipping, by Story, ed. 1829, p. 354.
(ƒ) Comm. ii. 166. The Marine Ordinance of the city of Rotterdam, in 1721,
declares that the damage resulting from collisions of ships shall be borne equally,
unless, indeed, the collision happened by design, or any remarkable fault, and then
the guilty party must bear the whole loss. Ord. of Rotterdam, secs. 255, 256. The
Ordinance of Hamburg, of 1731, tit. 8, is to the same effect, though even still nar-
rower in the exception. The loss, under that ordinance, is assessed as a common
average upon both vessels, freights and cargoes, and is to be borne one half by each
vessel. The foreign law and the sentence of a foreign marine court, in a case of col-
lision within its jurisdiction, and in a proceeding in rem, are conclusive as to the fact
and faultlessness of the collision, and of the apportionment; (2 Phillips on Ins. 2d ed.
182; Smith v. Condry, 1 How. 28;) and where there is no proof of negligence on the
part of the master or crew of the damaged ship, the insurer is liable for damages
occasioned by collision. Stevens & Benecke on Average, by Phillips, 368; Peters v.
Warren Ins. Co., vide infra, 302.
1 Collision. (a) With regard to the Ap-
portionment of Loss. - As stated on the last
page, when neither party is in fault, the
law leaves the parties where it finds them.
Stainback v. Rae, 14 How. 532; The
James Gray v. The John Frazer, 21 How.
184, 194; Union Steamship Co. v. New
York & Va. Steamship Co., 24 How. 307.
Other instances of the rusticum judicium
in the case of undiscoverable blame men-
tioned, 231, will be found in Hay v. Le
Neve, 2 Shaw's Scotch Appeals, 395;
Vaux v. Sheffer, The Immaganda Sara
Clarina, 8 Moore, P. C. 75. The Seringa-
patam, 2 W. Rob. 506; 3 id. 38; 5 Notes
of Cases, 61; 6 id. 165; The Saxonia,
་
[ 320 ]
LECT. XLVII.]
* 232
OF PERSONAL PROPERTY.
tribution is only between the ships, and that the cargoes are totally
excluded from the benefit, as well as from the burden of contri-
Lush. 410: The Catherine v. Dickinson,
17 How. 170; Chamberlain v. Ward, 21
id. 548; The Gray Eagle, 9 Wall. 505;
The Brig Rival, 1 Sprague, 128.
In like manner the owner of the cargo
on one of the vessels in fault can recover
half of his damages in a cause of collision
against the other vessel; The Milan,
Lush. 388; 31 L. J. N. s. Ad. 105; al-
though the cargo is not liable to be sued,
even if belonging to the owners of the ves-
sel; The Victor, Lush. 72; see, also, Lush.
403; The Roecliff, 38 L. J. n. s. Ad. 56;
further than that it is liable to be seized
in order to proceed in rem against the
freight which is a lien upon it. The Leo,
Lush. 444, Stewart v. Rogerson, L. R. 6
C. P. 424.
(b) Contributory Negligence. — The set-
tled form of question for the jury in the
common law courts in England is, whether
the damage was occasioned entirely by
the negligence or improper conduct of the
defendant, or whether the plaintiff him-
self so far contributed to the misfortune
by his own negligence or want of ordinary
and common care and caution, that, but
for such negligence or want of ordinary
care and caution on his part, the misfor-
tune would not have happened. Tuff v.
Warman, 5 C. B. N. s. 573; Walton v.
London, Brighton, &c., C. R. Co., Harr.
& Ruth. 424, 428; 14 W. R. 395. The
rule laid down in Tuff v. Warman has
been criticised and pronounced inexact in
Murphy v. Deane, 101 Mass. 455. There
are American cases to the effect that neg-
ligence on the part of the plaintiff
does not exonerate the defendant from
liability for his subsequent negligent acts.
Austin v. New Jersey St. Co., 43 N. Y. 75;
Needham v. San Francisco & S. J. R.R.,
87 Cal. 409; Flynn v. San Francisco & S.
J. R.R., 40 Cal. 14; Fitch v. Pacific R.R.,
45 Mo. 322. In other cases the liability
exists if the defendant's negligence pre-
VOL. III.
21
ponderates over that of the plaintiff. Chir
cago, Burlington, & Quincy R.R. v. Payne,
49 Ill. 499. See, generally, New Jersey
Express Co. v. Nichols, 33 N. J. (4 Vroom)
434; Cleveland & Pittsburg R.R. v. Rowan,
66 Penn. St. 393; Detroit & Milwaukee
R.R. v. Van Steinburg, 17 Mich. 99.
The rule of damages in cases of colli-
sion will be found in the Baltimore, 8
Wall. 377; where the earlier cases are
cited. As to the limitation of liability by
the act of March 3, 1851, see 217, n. 1, (b).
(c) Lien. - In cases of collision there
is a maritime lien on the ship in fault for
the damage.
the damage. Such a lien does not in-
clude or require possession, but is a claim
upon the ship to be carried into effect by
legal process, and as soon as it is carried
into effect by a proceeding in rem, it relates
back to the period when it first attached.
Harmer v. Bell, The Bold Buccleugh, 7
Moore, P. C. 267, 284; see 228, n. 1,·(b);
The Rock Island Bridge, 6 Wall. 213;
Edwards v. The Stockton, Crabbe, 580.
Compare The Two Ellens, L. R. 3 Ad. &
Ec. 345, 357. Like other maritime liens,
it may be lost by negligence or delay
where the rights of third parties may be
compromised. The Bold Buccleugh, sup. ;
ante, 196, n. 2; The Europa, Brown. &
Lush. 89; 2 Moore, P. C. N. s. 1; The
Charles Amelia, L. R. 2 Ad. & Ec. 330;
The Admiral, 18 Law Rep. 91; The
Stockton, sup. It attaches to the vessel,
although the owners have divested them-
selves of all power, right, and authority
over it for the time being by a charter
party amounting to a demise of the ship.
The Ticonderoga, Swabey, 215. See,
also, The Ruby Queen, Lush. 266. Per-
haps the only exception which has been
recognized even in England is where a
pilot is taken on board by compulsion.
Ticonderoga, sup. But see 176, n. 1;
218, n. 1. In America the lien has been
held to attach to a public vessel of tho
[321]
* 232
[PART V.
OF PERSONAL PROPERTY.
bution in the case of such a disaster. But in Le Neve v. Edin-
burgh and London Shipping Company, the cargo of the ship that
was sunk and lost by the collision received the benefit of the
contribution. (a)
9. Of General Average. The doctrine of general average grows
out of the incidents of a mercantile voyage, and the duties which
it creates apply equally to the owner of the ship and of the cargo.
General, gross, or extraordinary average means a contribution
made by all parties concerned towards a loss sustained by some
(a) This case was decided in the House of Lords in 1824. See Bell's Comm. i.
580-583, who has collected and digested the foreign authorities on the subject. By
the English statute of 53 Geo. III. c. 159, ship owners were protected from loss by
damage done to other vessels without their fault, beyond their property in the ship,
freight, apparel, and furniture. The value of the ship doing the damage is the price
at which she could be sold, ascertained by a valuation and appraisement. Dobree v.
Schroder, 2 Myl. & C. 489. In the case of the Dundee, it was held, that fishing stores
of a Greenland ship were liable to contribute in compensation for damages done to
another ship by collision, as appurtenances to a ship of that character. The Dundee,
1 Hagg. Adm. 109.
United States, although the government
is not liable for the wrongful acts of its
agents. The Siren, 7 Wall. 152; The
Davis, 10 Wall. 15; ante, 171, n. 1.
In a case where a British ship was
libelled in England for a collision with a
foreign vessel in the waters of Belgium,
she was held not to be liable, as she was in
charge of a pilot whom she was compelled
by Belgian law to employ, although by
the Belgian law the fact that taking the
pilot was compulsory did not exonerate
her. The principle of the decision as
Stated by the court is that an English
court will not enforce a foreign municipal
law, or give a remedy in the shape of
damages in respect of an act which ac-
cording to its own principles, ante, 176,
n. 1, imposes no liability on the person
from whom the damages are claimed.
The Halley, L. R. 2 P. C. 193, 201;
reversing s. c. L. R. 2 Ad. & Ec. 3. In
the course of the opinion, however, some-
thing is said as to the pilot not being the
agent of the owner by the English law,
and it may be that the Belgian law would
not be sufficient to create that relation
with an owner in England; but it is to be
remembered that the liability of the ves
sel in cases of collision does not depend
on her being under the control of the
owner's agents, as has just been stated.
(d) Vessels in Tow. - Many questions
have arisen out of collisions between a
vessel in tow of a steam tug and another
vessel. It is said to be well settled that
canal boats and barges in tow are con-
sidered as being under the control of the
tug, and that, therefore, the tug is liable
if either; The Express, 1 Blatchf. 365;
The Quickstep, 9 Wall. 665, 671; al-
though the tug is not a common carrier
as regards the vessel in charge. Brown
v. Clegg, 63 Penn. St. 51. And the same
has been held with regard to larger vessels
when the master of the tug has had entire
control. Sturgis v. Boyer, 24 How. 110.
In England the tow and the tug seem to
be considered as one ship, of which the
motive power is in the tug, and the gov-
erning power in the tow, and for the con-
duct of which the tow is responsible.
Stevens v. Gourley, The Cleadon, 14
Moore, P. C. 92; Maddox v. Fisher, The
Independence, ib. 103, 115. See The
Energy, L. R. 3 Ad. & Ec. 48.
[ 322 ]
LECT. XLVII.]
* 233
OF PERSONAL PROPERTY.
of the parties in interest, for the benefit of all; and it is called
general or gross average, because it falls upon the gross amount
of ship, cargo, and freight. (b)
By the Rhodian law, as cited in the Pandects, (c) if goods were
thrown overboard, in a case of extreme peril, to lighten and save
the ship, the loss, being incurred for the common benefit, was to
be made good by the contribution of all. The goods must
not be swept away by the violence of the waves,* for then *233
the loss falls entirely upon the merchant or his insurer, but
they must be intentionally sacrificed by the mind and agency of
man, for the safety of the ship and the residue of the cargo.¹ The
jettison must be made for sufficient cause, and not from ground-
less timidity. It must be made in a case of extremity, when the
ship is in danger of perishing by the fury of a storm, or is laboring
upon rocks or shallows, or is closely pursued by pirates or enemies;
and then, if the ship and the residue of the cargo be saved by
means of the sacrifice, nothing can be more reasonable than that
the property saved should bear its proportion of the loss. The
doctrine of general average is one of those rules of the marine
law which is built upon the plainest principles of justice; and it
has, accordingly, recommended itself to the notice and adoption
of all the commercial nations of the world. The title in the Pan-
dects, De Lege Rhodia de Jactu, has been the basis of the ordi-
nances of modern Europe, on the subject of general average; and
the doctrine of jettison was transplanted into the Roman law from
the institutes of the ancient Rhodians. A jettison is only permitted
in cases of extreme necessity; (a) ¹ and the foreign ordinances (b)
1
(b) Particular average is the same as partial loss, and is to be borne by the parties
immediately interested. Primage and average, which are mentioned in bills of lading,
mean a small compensation or duty paid to the master, over and above the freight,
for his care and trouble as to the goods. It belongs to him of right, and it is not
understood to be covered by the policy of insurance. For these charges, as well as
for freight, the master has a lien on the cargo. Park on Ins. c. 6, 134; Best v.
Saunders, 1 Dans. & Lloyd, 183.
(c) Dig. 14. 2. 1. This Rhodian law is discussed in the Pandects by Paulus, Papin-
ian, and other eminent lawyers. It forms the subject of the distinguished com-
mentaries of Peckius and Vinnius, in the treatise Ad Rem Nauticam, and of a treatise
of Bynkershoek; and it has received most ample illustrations in the dissertations upon
it by numerous other civilians, among whom may be selected Emerigon and Abbott.
(a) Sir Wm. Scott, in The Gratitudine, 3 C. Rob. 240.
(b) Laws of Oleron, art. 8; of Wisbuy, art. 20, 21, 38. Consulat de la Mer, ii.,
c. 99; Code de Commerce, art. 410.
1 See 234, n. 1.
[323]
* 294
[PART V.
OF PERSONAL PROPERTY.
require that the officers of the ship, and the supercargo, if on
board, should, if practicable, be previously consulted; and if the
master, in a case of false alarm, makes a jettison, there is no con-
tribution. The master is responsible for the due exercise of his
own judgment in the case of a jettison. He has the authority,
and if he shows a necessity of the sacrifice, he will be excused,
whether he follows the advice of the crew or not. The crew of a
vessel are not authorized to make a jettison of any part of the
cargo, even in a case of distress, without the order of the master.
This is the general rule, without reference to extreme cases. (c)
A regular jettison, says Emerigon, is that which takes place with
order, and without confusion, and is founded on previous delibera-
tion. Consultation is not indispensable previous to the sacrifice.
A case of imminent danger will not permit it. But it must appear
that the act occasioning the loss was the effect of judgment and
will; and there may be a choice of perils when there is no possi-
bility of safety. There must be a certain loss voluntarily
* 234 incurred for the common benefit, and it *is not necessary
that the vessel should be exposed to greater danger than
she otherwise would have been. To avoid an absolute shipwreck,
it may sometimes be necessary to run the vessel ashore in a place
which appears to be the least dangerous, and that will form a case
of general average. (a) The irregular jettison is valid, for it takes
place in the instant of a danger which is imminent and appalling,
and when all formality and deliberation would be out of season,
or impossible. All acts are precipitate, and commanded by that
sense of self-preservation when life is in jeopardy, which is
irresistible, and sways every consideration. Such a jettison is a
species of shipwreck, and is called seminaufragium. (b)¹ The
(c) The Nimrod, Ware, 14, 15.
(a) Sims v. Gurney, 4 Binney, 513; 1 Emerigon, 408. Targa says, that
during the sixty years he was a magistrate in the Consulat of the Sea, at Genoa, he
met with only four or five cases of a regular jettison, and they were suspicious by
reason of their very formalities.
(b) Consulat de la Mer, c. 284; Targa, c. 58; Casaregis, Disc. 45, n. 28.
1 General Average. — (a) Necessity, &c.
-If the master was competent for his
place, if an emergency actually existed
calling for a decision whether to make a
jettison, if he appears to have arrived at
his decision with due deliberation, by a
fair exercise of his skill and discretion,
with no unreasonable timidity, and with
an honest intent to do his duty, the law
does not seem to go behind his determi-
nation of what was necessary for the
common safety. (Compare 206, n. 1, d.)
Lawrence v. Minturn, 17 How. 100, 110;
Dupont de Nemours v. Vance, 19 How. 162;
[324]
LECT. XLVII.]
* 234
OF PERSONAL PROPERTY.
captain must first begin the jettison with things the least neces-
sary, the most weighty, and of least value, and nothing but the
Patten v. Darling, 1 Cliff. 254, 264. But
see Myers v. Baymore, 10 Penn. St. 114.
In The Star of Hope, 9 Wall. 203, 231, it
is said that it must be presumed that his
decision was wisely made in the absence
of proof to the contrary. The principle
that the immediate cause of the sacri-
fice must be the innavigability of the
vessel, and that it must be made with the
object and motive of obtaining present
safety, has been held to exclude a claim
for contribution in a very hard case,
where goods were thrown overboard to
make room for persons taken on board
from a sinking ship while the jettison
was going on. Two judges dissented, and
delivered a very convincing opinion. Dab-
ney v. New England Mut. Ins. Co., 14
Allen, 300.
The seaworthiness of the ship at the
commencement of the voyage is not a
condition precedent to the shipper's lia-
bility for general average, although, if
the loss was caused by the unseaworthi-
ness, it would be a good defence. Schloss
v. Heriot, 14 C. B. N. s. 59. In general,
where a jettison is rendered necessary by
any fault or breach of contract of the
master or owners, it must be attributed
to that rather than to the sea peril which
concurs in producing the necessity. The
Portsmouth, 9 Wall. 682, 684. Compare
217. n. 1; Lawrence v. Minturn, 17
How, 100, 111. The peril must be a sea
peril. Slater v. Hayward Rubber Co.,
26 Conn. 128; infra.
Community of Interest. The Am-
erican and English cases agree that there
must be a community of peril and bene-
fit. And contribution would not be com-
pelled between strangers who were not
united in a common adventure. Thus,
where the cable of a vessel is cut by its
crew to prevent an apprehended collision
with another vessel, the latter does not
contribute. The principle is that the
master, representing all the aggregate in-
terests by holding that office, has the
rightful power to judge as to the sacrifice
of one of the interests which he thus
represents, for the benefit of the others;
but not for mere strangers whose prop-
erty has not been confided to his care.
The John Perkins, 21 Law Rep. 87.
When the whole or a part of the cargo has
been landed, nice questions have arisen
as to when the community of interest
ceased, and the American courts have
carried the doctrine of general average
farther than the English in these instances.
It is doubtful, however, whether Bevan
v. Bank of U. S., inf. 239, n. (a), would
be followed even in America. McAn-
drews v. Thatcher, 3 Wall. 347, 373; Nel-
son v. Belmont, 21 N. Y. 36; Goodwillie
v. McCarthy, 45 Ill. 186, 189. In Eng-
land it is denied that all extraordinary
expenses incurred for the purpose of con-
tinuing the voyage are to be contributed
for. For instance, when the cargo has
been landed and is in safety, and it is a
matter of indifference to the owner of the
cargo whether his goods are forwarded in
the same or another ship, and it is possi-
ble to send them forward in another, it is
said that no part of his adventure is in
peril, and that he is not liable to general
average for such expenses afterwards in-
curred. Walthew v. Mavrojani, L. R. 5
Ex. 116; Hallett v. Wigram, 9 C. B. 580,
601; Kemp v. Halliday, 6 Best & S. 723,
748; Job v. Langton, 6 El. & Bl. 779,
792; Moran v. Jones, 7 El. & Bl. 523, 533;
Wilson v. Bank of Victoria, L. R. 2 Q. B.
203; (Power v. Whitmore, post, 235, is re-
ferred to in Dent v. Smith, L. R. 4 Q. B.
414, 450.) But in Nelson v. Belmont, sup.,
where Job v. Langton and Moran v. Jones
were considered, it was said that if the
enterprise is not abandoned, and the
property, although separated from the
rest, is still under the control of the mas
[ 325]
* 234
[PART V.
OF PERSONAL PROPERTY.
greatest extremity would excuse the master who should com-
mence the jettison with money, and other precious parts of the
cargo. (c)
(c) Code de Commerce, art. 411. Emerigon, i. 609, has beautifully illustrated,
from Juvenal, the growth and progress of an irregular jettison, and that imminent
danger and absorbing terror which justify it. At first the skill of the pilot fails: --
Nullam prudentia cani
Rectoris conferret opem.
/
Catullus becomes restless with terror as the danger presses, and at last he cries: --
Fundite quæ mea sunt
Præcipitare volens pulcherrima. — Juvenal, Sat. 12.
ter of the vessel, and liable to be taken
again on board for the purpose of prose-
cuting the voyage, the common interest
remains, and that whatever is done for
the protection of that common interest,
should be done at the common expense.
See, also, McAndrews v. Thatcher, 3 Wall.
347, 376; Goodwillie v. McCarthy, 45 Ill.
186; Star of Hope, 9 Wall. 203, 236; Dil-
worth v. McKelvy, 30 Mo. 149.
(c) Voluntary Sacrifice. The case of
The Columbian Ins. Co. v. Ashby, 239,
n. (d), as to the voluntary stranding of
the ship, has been generally followed and
approved in America. Merithew v. Samp-
son, 4 Allen, 192; Rathbone v. Fowler,
6 Blatchf. 294; Mutual Safety Ins. Co. v.
Cargo of the Ship George, Olcott, Ad. 89,
107; Sturgess v. Cary, 2 Curtis, 59; Bar-
nard v. Adams, 10 How. 270; Star of
Hope, 9 Wall. 203, 232; Patten v. Dar-
ling, 1 Cliff. 254. The question is treated
as open in Stephens v. Broomfield, The
Great Pacific, L. R. 2 P. C. 516, 524;
Maclachlan on Shipping, ch. 14, p. 570.
..
When the article sacrificed is the cause
of the danger, irrespective of a peril of
the sea, as in the case of cotton taking
fire by spontaneous combustion from in-
herent defect, it would not be contributed
for; and it is thought in England that
what is properly called wreck should be
disallowed for, and such is the practice of
average staters there. Johnson v. Chap-
man, 19 C. B. N. s. 563, 581; Slater v.
Hayward Rubber Co., 26 Conn. 128.
Taking wreck in the sense of articles
which have already lost all value at the
moment of the sacrifice, if saved then, the
proposition seems indisputable. But the
language of the above cases, and of Duer,
J., in Lee v. Grinnell, 5 Duer, 400, 409,
extends the denial of contribution to cases
where the value of the article is gone
at the moment of sacrifice, only because
there is no hope of saving it by any
course. This line of reasoning, if carried
out, would seem to exclude contribution
of the cargo when the ship was volun-
tarily stranded, contrary to the cases above
cited, and indeed all contribution except
in the case where some other portion of
the cargo might have been selected for
jettison instead of that which was thrown
overboard. The answer seems to be that
the destruction of the thing for which
contribution is claimed is an accomplished
fact, and it was certainly brought about
by a voluntary act, whereas it cannot be
certain that it would have been destroyed
if it had not been sacrificed, it is only
very probable. The giving up the possi-
bility of escape is the equity on which the
claim is founded. Opinion of Hoffman,
J., 5 Duer, 400, 418, and cases first cited
in (c) of this note.
→
(d) Sale of Cargo. The author's lan-
guage, at the beginning of p. 242, has been
thought to require the qualification that a
case for general average only arises where
part of the cargo has been sold in order
to defray expenses or repair losses which
[ 326 ]
LECT. XLVII.]
* 235
OF PERSONAL PROPERTY.
Before contribution takes place, it must appear that the goods
sacrificed were the price of safety to the rest, and if
*the ship be lost, notwithstanding the jettison, there will *235
be no ground for contribution. (a) All damage arising
immediately from jettison, or other act of necessity, is to be a
matter of general average, and, therefore, if, in cutting away a
mast, the cargo by that means be injured, or if, in throwing over
any part of the cargo, other parts of the cargo be injured, the
damage goes into general average, because it is to be considered
as part of the price of safety to the residue of the property. (b) ¹
So, if a ship be injured by a peril of the sea, and be obliged to go
into port to refit, the wages and provisions of the crew, during the
1
(a) Pothier, tit. Avaries, n. 113. No contribution, if at the time of sacrificing the
cargo there was no possibility of saving it. Crockett v. Dodge, 3 Fairfield, 190. [But
see 234, n. 1, (c).] No loss or expense is considered and applied as general average,
unless it was intended to save the remaining property, and unless it accomplished the
object. Williams v. Suffolk Ins. Co., U. S. C. C. Mass., May, 1839, 3 Sumner, 510.
(b) Maggrath v. Church, 1 Caines, 196.
are of themselves of the nature of general
average; and that where a sale of part of
the cargo has been effected in order to
pay for the repairing particular average
losses, the ship owner will alone be liable
to the owners of the goods so sold. Tu-
dor's L. C. on Merc. & Mar. Law, note to
Birkley v. Presgrave, 94, citing Powell v.
Gudgeon, &c., post, 302, n. (b); Hallett v.
Wigram, 9 C. B. 580.. See, also, La Con-
stancia, 2 Wm. Rob. 488; Dyer v. Piscat-
aqua F. & M. Ins. Co., 53 Me. 118; The
Mary, 1 Sprague, 51; Stirling v. Nevassa
Phosphate Co., 35 Md. 128.
(e) Lien. The American and English
cases agree that the master has a lien
on the cargo for contribution in general
average. They also agree that the lien
depends upon the possession of the goods.
But in America the lien, although pos-
sessory, is regarded as maritime, and is
enforced in admiralty, like the lien for
freight. Ante, 228, n. 1; Cutler v. Rae,
7 How. 729, 732; 8 How. 615; Bags of
Linseed, 1 Black, 108, 113; Dupont de
Nemours v. Vance, 19 How. 162, 171;
Mutual S. Ins. Co. v. Cargo of the Ship
George, Olcott, 89, 157. In Dupont De Ne-
mours' Case, sup., the owners of the cargo
were allowed to maintain a libel against
the vessel in admiralty for contribution,
and in Fitzpatrick v. 800 Bales of Cotton,
3 Benedict, 42, the owners of the vessel
obtained a decree against the cargo. See,
also, The Jolin Perkins, 21 Law Rep. 87,
96; Dike v. The St. Joseph, 6 McL. 573.
The English courts, on the other hand, con-
sider the master's lien to be a common law
lien, which is not enforced in admiralty.
But the admiralty courts, although they
will not directly enforce it, will not set it
aside and annul it when it comes before
them incidentally in the progress of a
cause over which they take jurisdiction,
as, for instance, a libel by a respondentia
bondholder. Cleary v. McAndrew, Cargo
ex Galam, 2 Moore, P. C. n. s. 216, 236;
(explaining Constancia, 2 W. Rob. 487;
The North Star, Lush. 45;) The Soblom-
sten, L. R. 1 Ad. & Ec. 293, 301.
1 Gage v. Libby, 14 Allen, 261, 267;
Patten v. Darling. 1 Cliff. 254; Lee v.
Grinnell, 5 Duer, 400; Nelson v. Belmont,
ib. 310, (21 N. Y. 36;) The Brig Mary, 1
Sprague, 17. See 234, n. 1.
[327]
236
[PART V.
OF PERSONAL PROPERTY.
detention, constitute the subject of general average, according to
the decisions in New York and Massachusetts. (c) Those decisions
are supported by the rule as laid down in Beawes, (d) and they are
in coincidence with the law and practice of Holland and France. (e)
Lord Tenterden, in his treatise on shipping, (f) observed, that
the English law books furnished no decision on this point, and he
thought it susceptible of a reasonable doubt, though his opinion
was evidently against the justice and policy of the charge for con-
tribution. Since he wrote, the question has been decided in the
K. B. according to his opinion, and in a case in which he sustained
and enforced a contrary opinion in his character of counsel. (g)
The result of the decisions in Plummer v. Wildman and Power v.
Whitmore (h) is, that where the general safety requires a ship to
go into port to refit, by reason of some peril, the wages and
*236 provisions of the crew during the * detention are not the
subject of general average; but the other necessary ex-
penses of going into port, and of preparing for the refitting the
ship, by unloading, warehousing, and reloading the cargo, are gen-
eral average. (a) The costs of the repairs, so far as they accrue
(c) Walden v. Le Roy, 2 Caines, 263; Padelford v. Boardman, 4 Mass. 548; Pot-
ter v. Ocean Ins. Co., 3 Sumner, 27. In Pennsylvania, it is decided that the wages
and provisions of the crew during an embargo go into a general average, and, as the
Ch. J. observed, the criterion of general average is, when the expenses were
(( neces-
sarily and unavoidably incurred for the general safety of the ship and cargo."
Insurance Company of N. America v. Jones, 2 Binney, 547. The case of a vessel
forced into port by sea perils and damage to refit, would doubtless be considered as
equally within the principle. See infra, 302.
(d) Lex Mercatoria, i. 161.
(e) Ricard, Négoce d'Amsterdam, 280; Emerigon, Traité des Ass. i. 624.
(ƒ) Abbott on Shipping, 5th Am. ed. 1846, p. 592.
(g) Power v. Whitmore, 4 Maule & S. 141.
(h) 3 Maule & S. 482; 4 id. 141, s. P. [See Dent v. Smith, L. R. 4 Q. B. 414,
450.] In De Vaux v. Salvador, 4 Ad. & El. 420, Lord Denman, in that case, relied
upon the nisi prius case of Fletcher v. Pole, before Lord Mansfield, in 1769, and cited
by Park on Ins. i. 70; and also in Robertson v. Ewer, 1 T. R. 131. He seemed to
admit that the expenses of wages and provisions, in such cases, might go into contri-
bution as between owners and freighters, though not as against underwriters. In
Charleston, in South Carolina, the average of provisions and wages of the crew, while
the vessel is detained in a port of necessity, is not charged to the underwriters. The
English rule is the one that prevails. Union Bank v. Union Ins. Co., Dudley Law &
Eq. 171.
(a) Beawes, L. M. 161; Abbott on Shipping, 280, 1st ed. Bedford Com. Ins.
Company v. Parker, 2 Pick. 8, and Thornton v. U. S. Ins. Company, 3 Fairf. 150,
support the position, that the necessary expenses of unloading and reloading the cargo,
when a vessel is forced into a port to refit, are to be brought into general average, for
all persons concerned are interested in the measures requisite to complete the voyage
[328]
LECT. XLVII.]
237
OF PERSONAL PROPERTY.
to the ship alone as a benefit, and would have been necessary in
that port, on account of the ship alone, are not average. Yet, if
the expense of the repairs would not have been incurred but for
the benefit of the cargo, and might have been deferred, with
safety to the ship, to a less costly port, such extra expense is
general average.¹
*
It has likewise been held, that the wages and provisions of the
crew, during a capture and detention for adjudication, are a
proper subject for general average; (b) while in the case of a
vessel detained by an embargo, they are not so subject, and are
chargeable exclusively upon the freight. (c) The French Ordi-
nance of the Marine, Pothier, and Ricard, all agree, that wages
and provisions are not a subject for contribution in the case
of an embargo; and yet it has been held, on the other hand,
by the Court of Errors in Pennsylvania, in 1807, that
*they were in such case the subject of general aver- 237
age. (a) In respect to the wages and provisions of the
crew, while the vessel was detained at an intermediate port, by
fear of enemies, and waiting for convoy, they were allowed to
form the subject of general average by the courts in Holland,
amidst conflicting opinions, and after very protracted and ex-
hausting litigation. (b) We cannot but lament the uncertainty
But again, the labor and board of the master and crew, in relieving a vessel cast
ashore in a storm, are not the subject of general average, or chargeable on the insurer;
though the extra hire and loss on the sale of outfits are general average. Giles v. Eagle
Ins. Co.,.2 Met. 140. The case of Walden v. Le Roy, 2 Caines, 263, assumes, that
those expenses, in such a case, go into a general average; and there seems to be no
doubt from the cases, that where the wages and provisions of the crew are to be borne
by general contribution, those other expenses are equally a part of it. The survey
to ascertain the necessity and extent of repairs at a foreign port may be ordered by
a court of admiralty, or by the American consul, or by persons voluntarily appointed
by the master, and if the damages were the result of a peril insured, the underwriters
bear the expense of the survey. Potter v. Ocean Ins. Co., 3 Sumner, 27, 42. The
whole subject is discussed and the authorities collected in Abbott on Shipping, 5th
Am. ed. Boston. 1846, 595-602.
(b) Ricard, Négoce d'Amsterdam, 279; Boulay-Paty, iv. 444; Leavenworth v.
Delafield, 1 Caines, 574; Kingston v. Girard, 4 Daļl. 274.
(c) Robertson v. Ewer, 1 T. R. 127; Penny v. New York Insurance Company, 3
Caines, 155; M'Bride v. Marine Insurance Company, 7 Johns. 431; Harrod v. Lewis,
3 Martin (La.), 311.
(a) Insurance Company of North America v. Jones, 2 Binney, 547.
(b) Bynk. Quæst. J. Priv. lib. 4, c. 25; Bynkershoek, in one of the adjudged cases
' See 234, n. 1; Dyer v. Piscataqua Libby, 14 Allen, 261, 268; Wilson v.
F&M. Ins. Co., 53 Me. 118; Gage v. Bank of Victoria, L. R. 2 Q. B. 203.
[329 ]
* 238
[PART V.
OF PERSONAL PROPERTY.
and confusion which the contradictory rules on this subject have
created. There is no principle of maritime law that has been
followed by more variations in practice than this perplexed doc-
trine of general average; and the rules of contribution in dif-
ferent countries, and before different tribunals, are so discordant,
and many of the distinctions are so subtle and so artificial, that
it becomes extremely difficult to reduce them to the shape of a
connected and orderly system. The French jurists complain that
their ancient nautical legislation left the question of contribution
very much at large, and subject to arbitrary discretion, and
*238 they commend very highly the regulations *of the Ordi-
nance and of the code as just and equitable, and marked
with certainty and precision. (a)
If part of the cargo be voluntarily delivered up to a pirate, or
an enemy, by way of ransom or contribution, and to induce them
to spare the vessel and residue of the goods, the property saved
must contribute to the loss, as being the price of safety to the
rest. The expense, also, of unlading the goods, to repair dam-
ages to the ship, or to lighten her when grounded, must be sus-
tained by general contribution; for all the parties concerned are
interested in the measures requisite for the prosecution of the
voyage. If the masts, cables, and other equipments of the
vessel be cut away, to save her in a case of extremity, their value
must be made good by contribution. (b) It was attempted, in
the case of Covington v. Roberts, (c) to extend the application of
which he cites, complains that the existing usages had extended contribution to every
kind of danger, and frequently comprehended wages and provisions of the crew as
proper objects of it, and that the practice might be abused to the destruction of the
merchant. His history of the vexatious litigation in these cases is quite curious. In
one of them, the Maritime Court at Amsterdam, in November, 1697, and again, in
November, 1698, adjudged that the wages and provisions were a proper subject for
contribution. The decisions were affirmed, on appeal, in July, 1700, and reversed on
a further appeal, in July, 1710. On a still further appeal to the Supreme Senate, of
which Bynkershoek was a member, after great discussion and much division in opin-
ion, the original decisions of the Amsterdam maritime judges were restored, in March,
1713. Magens, in his Essay on Insurance, i. 66-69, shows the uncertainty and dif-
ficulty abroad, as well as in England, of settling the proper items for a general average,
and particularly as to the wages and provisions of the crew.
(a) Ord. de la Mar. tit. Avaries, art. 7; Code, art. 400, 401; Boulay-Paty, iv. 466.
(b) Ord. de la Mar. tit. Avaries, art. 6; Valin's Comm. ii. 165; 1 Emerigon, 620,
621; Hennen v. Monro, 16 Martin (La:), 449.
(c) 5 Bos. & P. 378; Shiff v. Louisiana State Ins. Co., 18 Martin [La.], 629, to
Where a vessel was stranded near her port of destination, and for the purpose
of relieving her, the cargo was put into lighters and forwarded to the port, and during
S. P.
[ 330 ]
LECT. XLVII.]
* 239*
OF PERSONAL PROPERTY.
the general rule to the case of the loss of a mast, in carrying an
unusual press of sail to escape from an enemy, and to make that
the subject of general average; but the court considered that to
be no more than a common sea risk. All casual and inevitable
damage and loss, as distinguished from that which is purposely
incurred, are the subject of particular and not of general aver-
age. (d)
*If the ship be voluntarily stranded, to escape danger *239
from tempests, or the chase of an enemy, the damages
resulting from that act are to be borne as general average if
the ship be afterwards recovered and perform her voyage. (a)
But if the ship be wholly lost or destroyed, by the act of
running her ashore, it has been a question much discussed,
and different opinions entertained, whether the cargo saved was
bound to contribute to bear the loss of the ship. In Bradhurst
v. The Columbian Insurance Company, (b) the ship, in a case of
extremity, was voluntarily run ashore, and lost, but the cargo
was saved; and it was held that no contribution was to be levied
on the cargo for the loss of the ship. The marine ordinances,
the passage in the lighters part of the cargo was injured, such a loss to the cargo was
held to be a proper subject for general average. Lewis v. Williams, 1 Hall (N. Y.), 430.
(d) Emerigon, i. 622, states an interesting case to illustrate the general doctrine.
A French vessel being pursued by two cruisers of the enemy, the master, as soon as
it was dark, hoisted a boat into the sea, furnished with a mast and sail, and a lantern
at the masthead, and then changed his course, and sailed during the night without
any light on board his ship. In the morning no enemy was in sight; and the value
of the boat thus voluntarily abandoned for the common safety was made good by gen-
eral contribution.
(a) Abbott on Shipping, ŏth Am. ed. Boston, 1846, p. 587. In a case of voluntary
stranding, if it be done to save the cargo, the damage to the ship and cargo is the
subject of general average; but if it was resorted to in order to save the lives or lib-
erty of the crew, it is particular average. This distinction, Mr. Benecke says, is con-
formable to the practice of all countries. Benecke on the Principles of Indemnity,
220, 221. The principle is, that if a vessel be run ashore voluntarily to save life, and
is lost, and would unavoidably have been lost without the act, it is not a case for
contribution or general average, for nothing was saved, and no property sacrificed to
save property. Benecke, 219; Stevens & Benecke on Average, by Phillips, 84;
Meech v. Robinson, 4 Wharton, 360. But when a vessel is stranded, and part of the
cargo taken on shore and conveyed to the place of destination by land, and the vessel
is afterwards recovered, and other parts of the cargo reshipped and carried to the port
of destination, the owners of the cargo landed and conveyed by land are bound to
contribute to the extra charges and expenses incurred by the master, after the landing
of such cargo, as general average. The rule of equity, reciprocity, and equality requires
it. Bevan v. Bank of United States, 4 Wharton, 301. See, also, Benecke, 306, 307,
to the same point. [But see 234, n. 1, (b).]
(b) 9 Jolins. 9; Eppes v. Tucker, 4 Call, 346; Scudder v. Bradford, 14 Pick. 13, s. F
[331]
* 240
[PART V.
OF PERSONAL PROPERTY.
and writers on maritime law, were consulted, and the conclusion
drawn from them was, that the cargo never contributed for the
ship, if she was lost by means of the act of running her ashore.
But in two subsequent cases, where the ship was lost under like
circumstances, it was decided, on a like review of the European
law, that the loss was to be repaired by general average. (c)
The question, therefore, in which the foreign and domestic
authorities so materially vary, remains yet to be definitely set-
tled. (d) ¹
1
A temporary safety is all that is requisite to entitle the
*240 *owners of the property sacrificed to contribution; and if
the ship survives the disaster, and be afterwards lost by
another, still the goods saved in the second disaster must be con-
tributory to the original loss, for without that loss they would
have been totally destroyed. (a) Goods shipped on deck, con-
tribute, if saved, but if lost by jettison, they are not entitled to
the benefit of general average, and the owner of the goods must
bear the loss without contribution; for they, by their situation,
increase the difficulty of the navigation, and are peculiarly exposed
to peril. Nor is the carrier in that case responsible to the owner,
unless the goods were stowed on deck without the consent of the
owner, or a general custom binding him, and then he would be
chargeable with the loss. (b) ¹
(c) Caze v. Reilly, 3 Wash. 298; Gray v. Waln, 2 Serg. & R. 229. In Scudder v.
Bradford, 14 Pick. 13, where the masts were cut away, but the vessel afterwards,
notwithstanding that sacrifice, went ashore and was lost, it was held, that the cargo
saved was not liable to a general average, for the sacrifice was unavailing.
(d) It remains to be settled in the English law. Abbott on Shipping, 5th Am. ed.
Boston, 590, 591. But this question was finally settled in the Supreme Court of the
United States, in the case of The Columbian Ins. Company v. Ashby, 13 Peters,
331. The court reviewed the principal authorities, foreign and domestic, and decided
that in a case of a voluntary stranding of the ship for the common safety, and to save
the crew and cargo from impending peril, followed by a total loss of the ship, but
with a saving of the cargo, a clear case of general average existed, in which the
insurers of the cargo were held liable to contribute upon that principle to the loss of
the ship and freight. See the cases collected and condensed in Abbott on Shipping,
5th Am. ed. Boston, 1846, 490, 491, note.
(a) Vinnius, in Peckium ad legem Rhodiam, 246, 250; Boulay-Paty, iv. 443.
(b) Consulat de la Mer, c. 183; Ord. de la Mar. 3, 8, 13; Emerigon, c. 12, sec. 42;
1 See 234, n. 1, (c).
1 Lawrence v. Minturn, 17 How. 100,
115; Johnson v. Chapman, 19 C. B. N. s.
563; Harris v. Moody, 30 N. Y. 266; 4
Bosw. 210; Merchants' & Man. Ins. Co.
v. Shillito, 15 Ohio St. 559; Toledo Ins.
Co. v. Speares, 16 Ind. 52; The Milwau-
kie Belle, 9 Am. Law Reg. N. s. 311; 21
L. T. N. s. 800; Miller . Tetherington
7 Hurlst. & N. 954; 6 id. 278.
4
[332]
LECT. XLVII.]
* 240
OF PERSONAL PROPERTY.
It becomes an important inquiry on this subject, what goods
are to contribute, and in what proportions, to a loss voluntarily
incurred for the common safety. The general doctrine is, that
all the merchandise, of whatever kind or weight, or to whomso-
ever belonging, contributes. Goods of the government are
liable to contribute equally with those of other shippers. The
contribution is made, not on account of incumbrance to the ship,
but of safety obtained, and therefore bullion and jewels put on
board as merchandise contribute according to their full value.2
By the Rhodian law, (c) it was deemed just that all should con-
tribute to whom the jettison had been an advantage, and the
amount was to be apportioned according to the value of the
goods. It extended to the effects and clothes of every person,
and even to the ring on the finger, but not to the provisions on
board, nor to the persons of freemen, whose lives were of too
much dignity and worth to be susceptible of valuation. The
modern marine codes do not generally go to the extent of the
Rhodian law, and they vary greatly on the subject. By the Eng-
lish law, the wearing apparel, jewels, and other things belong-
ing to the persons of passengers or crew, and taken on board
Smith v. Wright, 1 Caines, 43; Lenox v. U. I. Company, 3 Johns. Cas. 178; Boulay-
Paty, iv. 566; Code de Commerce, art. 421; Dodge v. Bartol, 5 Greenl. 286; The
Brig Thaddeus, 4 Martin (La.), 582; Abbott on Shipping, 5th Am. ed. 578; Story
on Bailments, 339; Johnston v. Crane, Kerr N. B. 356; Wolcott v. Eagle Ins. Com-
pany, 4 Pick. 429. But if they be laden on deck, according to the custom of a particular
trade, they are entitled to contribution from the ship owners for a loss by jettison.
Gould v. Oliver, 4 Bing. N. C. 134 [2 Mann. & Gr. 208]. In the 5th Am. ed. of Abbott,
578, there is a learned note by the English editor, Sergeant Shee, on the exclusion
of goods stowed on deck from the benefit of general average; and the general rule is
considered to be quite inflexible that goods so stowed do not go into general average.
But the consent of the owner would undoubtedly relieve the master from the responsi-
bility for the loss of goods so disposed. In addition to the case of Gould v. Oliver,
the case of Milward v. Hibbert, in the Q. B., 2 Gale & Dav. 142, declared against any
general inflexible rule of law, that for goods stowed on deck the owner should be
excluded from the benefit of general average, and that the rule depended upon cir-
cumstances, and the evidence of commercial men respecting the usages of the trade.
Şee Abbott on Shipping, 5th Am. ed. Boston, 535, 536. There is the late statute of
5 Vict. prohibiting the cargo of vessels, clearing from British North America, between
September and May, to be stowed on deck, if the vessel be laden wholly or in part
with timber or wood goods.
(c) Dig. 14. 2. 2.
2 So do bank notes forming part of the
cargo. Harris v. Moody, 30 N. Y. 266;
4 Bosw. 210. Compare The Emblem,
Daveis, 61 (a case of salvage). As to
government goods, see 171, n. 1.
[333]
* 242
[PART V.
OF PERSONAL PROPERTY.
* 241 for private use, and not as * merchandise for transporta-
tion, and the provisions and stores for the crew, do not
contribute in a case of general average. (a) The common rule,
according to Magens, (b) is, that what articles pay freight must
contribute, and what goods pay no freight pay no average; and
that articles contribute according to their value, and not accord-
ing to weight. By the French Ordinance of the Marine, as well
as by the new commercial code, provisions and the clothes of the
ship's company do not contribute; but usage goes further, and
does not subject to the charge of general average either clothes,
jewels, rings, or baggage of the passengers, for they are consid-
ered accessory to the person. Emerigon, who has, according to
his usual manner, collected and exhausted all the learning apper-
taining to the subject, inclines to think with Pothier, that by
strict law and by equity, the clothes and jewels of passengers
ought to contribute. But Boulay-Paty, in his commentaries on
the new code, and in which he draws most liberally on the
resources of Emerigon, thinks they ought to be exempted, and
that the existing French usage is proper. (c)
Instruments of defence and provisions do not contribute,
because they are necessary to all; and yet, if they are sacrificed
for the common safety, they are to be paid for by contribution;
nor do the wages of seamen contribute to the general average,
except in the single instance of the ransom of the ship. They
are exempted, lest the apprehension of personal loss should
restrain them from making the requisite sacrifice, and the
* 242 hardships and perils they endure will entitle * them to an
exemption from further distress. (a) If part of the cargo
be sold for the necessities of the ship, it is in the nature of a
compulsive loan for the benefit of all concerned, and bears a
resemblance to the case of jettison; and if the ship be afterwards
lost, the goods saved must contribute towards the loss of the
goods sold, equally as if they had been thrown overboard to
(a) Abbott on Shipping, part 3, c. 8, sec. 14.
(b) Magens on Insurance, i. 62, 63.
(c) Ord. de la Mar. tit. Du Fret, art. 11; Code de Commerce, art. 419; Pothier,
tit. Des Avaries, n. 125; 1 Emerigon, 645; Boulay-Paty, iv. 561, 562. In Brown v.
Stapyleton, 4 Bing. 119, 12 J. B. Moore, 334, s. c., the general rule was declared to
be, that provisions for the crew on board a ship are not merces put on board for the
purpose of commerce, and do not contribute to the general average, even when the
cargo of the ship consists only of passengers.
(a) 1 Emerigon, 642.
[334]
LECT. XLVII.]
* 213
OF PERSONAL PROPERTY.
lighten the vessel. In such a case, a portion of the cargo, accord
ing to Lord Stowell, is abraded for the general benefit. (b)¹
Without entering minutely into the doctrine of adjusting and
settling a general average, (c) it will be sufficient to observe,
that, as a general rule, the goods sacrificed, as well as the goods
saved, if the vessel arrives at the port of destination, are to be
valued at the clear net price they would have yielded, after
deducting freight, at the port of discharge; and this rule is
founded on a plain principle of equity. (d) The person whose
loss has procured the safe arrival of the ship and cargo, should
be placed on equal ground with those persons whose goods had
safely arrived, and that can only be by considering his goods to
have also arrived. The owners of the ship contribute according
to her value at the end of the voyage, and according to the net
amount of the freight and earnings. The value of the
vessel lost is estimated according to her value at the port *243
of departure, making a reasonable allowance for wear or
tear on the voyage up to the time of the disaster; and the
practice in this country, or at least it is the practice in Boston, (a)
to ascertain the contributory value of the freight, by deducting
one third of the gross amount. As to losses of the equipment
of the ship, such as masts, cables, and sails, it is usual to deduct
one third from the price of the new articles; for, being new,
they will be of greater value than the articles lost. (b) The
subject of the adjustment of a general average has been very
*
1
(b) Hall's Emerigon on Maritime Loans, 94; The Gratitudine, 3 C. Rob. 261.
(c) Mr. Benecke has discussed at large, and very ably, the complicated and diffi-
cult subject of general average, and the adjustment of it; and to him I must refer foi
a more minute detail of the learning and principles applicable to the case. Princi
ples of Indemnity, c. 5, 7.
(d) Tudor v. Macomber, 14 Pick. 34. The Consolato del Mare, and the usage of
divers countries, made a distinction as to the rule of valuation, and they took the
value at the place of departure, if the jettison took place before the middle of the
voyage, and the value at the price of discharge, if afterwards. But the Ordinance
of the Marine did not make any such distinction. 1 Emerigon, 654. If the vessel
returns to the port of departure, or to some neighboring port, the price of replacing
the goods sacrificed, or the cost price, including charges, is the rule for settling the
general average. Tudor v. Macomber, 14 Pick. 34.
(a) 3 Mason, 439.
(b) Abbott on Shipping, 5th Am. ed. 607; Strong v. Firemen Ins. Company, 11
Johns. 323; Simonds v. White, 2 B. & C. 805; Gray v. Waln, 2 Serg. & R. 229, 257,258
1 But see 234, n. 1, (d).
1 Mutual S. Ins. Co. v. Cargo of Ship George, Olcott, Adm. 157.
[335]
* 244
[PART V
OF PERSONAL PROPERTY.
much discussed in some of the modern cases. In Leavenworth v.
Delafield, (c) which was the case of a vessel captured and carried
in for adjudication, and where the wages and provisions of the
crew went into general average, a rule of adjustment somewhat
peculiar to the case was adopted; for no disaster had happened
to injure the vessel or cargo. In Bell v. Smith, (d) the vessel
had been so deteriorated by the perils of the sea as to render a
sale of her abroad necessary; and the general average was cal-
culated on the price she sold for, and not on four fifths of her
original value, as in the preceding case of capture. In adjusting
the difficult subject of contribution to a general average, one rule
has been to take the value of the ship and cargo at the port of
necessity, or place where the expense was incurred; and if there
be no price of ship and cargo at such a place to be well and
satisfactorily ascertained, the parties concerned may be forced to
recur to the value at the port and time of departure on the voy-
age. (e) The doctrine of adjustment underwent a very
* 244 full discussion in Strong v. New York Firemen * Insurance
Company, (a) and it was there declared to be the duty of
the master, in cases proper for a general average, to cause an
adjustment to be made upon his arrival at the port of destination,
and that he had a lien upon the cargo to enforce the payment of
the contribution. This was shown to be the maritime law of
Europe.¹ When the general average was thus fairly settled in
the foreign port, according to the usage and law of the port, it
was binding and conclusive as to the items, as well as the appor-
tionment thereof, upon the various interests, though settled
differently from what it would have been in the home port. The
very same principle was largely examined and recognized in
Simonds v. White. (b) If, however, it was not a proper case for
a general average, and was a partial loss only, then these cases
do not apply, and a foreign adjustment, founded in mistake, and
(c) 1 Caines, 574.
(d) 2 Johns. 98.
(e) As a general rule, the valuation of the cargo in the bill of lading is conclusive
between the owner of the ship and the owner of the cargo, in the adjustment of a
general average in the home port. Tudor v. Macomber, 14 Pick. 34.
(a) 11 Johns. 323; Lewis v. Williams, 1 Hall (N. Y.), 430; Depau v. Ocean Ins.
Company, 5 Cowen, 63, s. P.
(b) 2 B. & C. 805; Dalglish v. Davidson, 5 Dowl. & Ry. 6; Loring v. Neptune
Ins. Company, 20 Pick. 411; Thornton v. United States Ins. Company, 3 Fairfield,
153.
1 See 234, n. 1.
[ 336 ]
LEUT. XLVII.]
* 245
OF PERSONAL PROPERTY.
assuming a case for general average when none existed, is not
binding. (c) With respect to the payment of the average, each
individual is undoubtedly entitled to sue for the amount of his
share when adjusted; but the English practice usually is, in the
case of a general ship, where there are many consignees, for the
master, before he delivers the goods, to take a bond from the dif-
ferent merchants for payment of their portions of the average
when the same shall be adjusted. (d)
1
* [10.] Of Salvage. Salvage is the compensation allowed * 245
to persons by whose assistance a ship or its cargo has been
saved in whole or in part from impending danger, or recovered
from actual loss, in cases of shipwreck, derelict, or recapture ;
and it often forms a material ingredient in the discussions and
adjustment which take place when a voyage has been disas-
trous. (a) The equitable doctrine of salvag; came from the
Roman law; (b) and it was adopted by the admiralty jurisdic-
tions in the different countries of Europe; and whether it be a
civil or war salvage, it is equally founded on the principle of
rewarding individual, spontaneous, and meritorious services,
rendered in the protection of the lives and property of others on
the sea, or wrecked on the coast of the sea. (c) It is charge-
able upon the owners, who receive benefit, and who would have
sustained the loss if it had not been prevented by the exertions
1
(c) Lenox v. United Ins. Company, 3 Johns. Cas. 178; Power v. Whitmore, 4
Maule & S. 141. [See Dent v. Smith, L. R. 4 Q. B. 414, 450; Harris v. Scaramanga,
L. R. 7 C. P. 481, 495, 498.]
(d) Abbott on Shipping, part 3, c. 8, sec. 17. The captain may make the giving
of the average bond a condition of the delivery, and it is held to be a reasonable con-
dition in support of a right founded on commercial usage. Cole v. Bartlett, 4 La.
130. The absolute owner of goods is liable to pay a general average; but if a mere
consignee, who is not owner, receives them, and the bill of lading saying, "he pay-
ing freight and demurrage," and is silent as to general average, the consignee is not
bound to pay it, though he would have been if it had been mentioned. He is liable
to pay freight by reason of the condition on which he receives the goods, and which
he agrees to by receiving the goods. Scaife v. Tobin, 3 B. & Ad. 523.
(a) Salvage, in policies of insurance, says Mr. Phillips, has a meaning somewhat
different, and it applies to that part of the cargo which survives the peril and is saved,
and is to be charged or credited, as the case may be, on the adjustment of total losses.
(b) Dig. 3. 5.
(c) The Calypso, 2 Hagg. Adm. 217, 218; Ware, J., in The Bee, Ware, 336; The
Schooner Emulous, 1 Sumner, 207. In the case of a ship stranded on a sand-bank,
in the St. Lawrence, infra corpus comitatus, the suit for salvage was held to be of com-
mon law, and not of admiralty jurisdiction. Stuart's Lower Canada Rep. 21.
VOL. III.
1 See 248, n. 1.
22
[ 337 ]
* 246
[PART V.
OF PERSONAL PROPERTY.
of the salvors. The allowance of salvage depends frequently on
positive statute regulations fixing the rate, and the foreign ordi-
nances contain precise enactments on this head, though salvage
is said to be a question of the jus gentium, and not the creature
of local institutions, like a mariner's contract. (d) The regula-
tion of salvage, by the statute law of the United States, is con-
fined to cases of recapture. In the case of shipwrecks, or
derelicts at sea, and rescue, and most other cases, the law has
not fixed any certain rate of salvage, and it is left to the discre-
tion of the court of admiralty, under all the circumstances.
The amount to be allowed varies according to the labor and
peril incurred by the salvors, the merit of their conduct, the
value of the ship and cargo, and the degree of danger from which
they were rescued. (e) The courts are liberal in the allowance
of salvage in meritorious cases, as a reward for the service, and
as an incentive to effort; and the allowance fluctuates between
one half, one third, and one fourth of the gross or net proceeds
of the property saved, but one third has been the most usual
rate. (ƒ) In a case of derelict, Sir William Scott observed,
that in no instance, except where the crown alone was con-
cerned, and where no claim had been given for a private
* 246 owner, had more than one half of the net proceeds of the
property been decreed by way of salvage; and in that
case he directed the salvage to be apportioned among the crews
of the two vessels which were the salvors, according to the
*
(d) 1 C. Rob. 278. The statute of 9 and 10 Vict. c. 99, enacts regulations on the
subject of salvage, and its unskilful enactments are exposed in the Law Magazine for
February, 1847, art. 2, [vol. xxxvii. — Vi. N. s. —32.]
(e) The Aquila, 1 C. Rob. 37; The Two Friends, ib. 271; The Sarah, cited in a
note to ib. 313; The William Beckford, 3 C. Rob. 355; Marshall, C. J., 2 Cranch,
267; Bond v. The Brig Cora, 2 Wash. 80; The Schooner Emulous, 1 Sumner, 207;
The Elizabeth and Jane, 1 Ware, 35; Bearse v. 340 Pigs of Copper, 1 Story, 314.
The leading authorities in respect to salvage, in the various cases of derelict, recap-
ture, rescue, and distress, are collected and classified by Mr. Perkins, the American
editor, in Abbott on Shipping, 5th Am. ed. Boston, 1846, p. 666.
(f) If the owner has voluntarily and fairly entered into a contract for a fixed or
reasonable compensation, the service rendered in a maritime case of distress is still a
salvage service; but the contract is not held binding upon the owner, unless it appears
that no advantage was taken, and that the rate of compensation was reasonable. The
Schooner Emulous, 1 Sumner, 207. One sixth is the usual allowance of military sal-
vage under the general law of nations, as practised in the English and American
courts, where the case is not marked with any extraordinary circumstances of diffi
culty or danger. Opinion of the U. S. Attorney General, [Op. Att. Gen. i. 584.]
[ 338 ]
LECT. XLVII.]
* 246
OF PERSONAL PROPERTY.
numbers of the crews. (a) The same observations were made by
the court, in Mason v. The Ship Blaireau, (b) and no instance
was found in which salvors were allowed beyond a moiety of the
value.¹ The court, in that case, reduced the allowance made in
the court below to the salvors, from three fifths of the net pro-
ceeds of the ship and cargo, to two fifths thereof. In general,
neither the master nor a passenger, seaman, or pilot is entitled
to compensation, in the way of salvage, for the ordinary assist-
ance he may have afforded a vessel in distress, as it is no more
than a duty; for a salvor is a person who, without any particular
relation to the ship in distress, proffers useful service, and ren-
ders it without any preëxisting contract making the service a
duty. (c) But a passenger, or an officer acting as such, for
extraordinary exertions beyond the line of his duty, has been
deemed entitled to a liberal compensation as salvage. (d) So,
(a) L'Esperance, 1 Dods. 46. But in a case of extraordinary salvage merit, in
bringing in a derelict, the court have not only allowed a moiety for salvage, but they
have charged the costs upon the other moiety. The Frances Mary, 2 Hagg. Adm.
89; The Reliance, ib. 90, note. In The Charlotta, ib. 361, the court gave the original
salvors the salvage of two fifths of the whole value. It was a case of derelict, and of
great merit. In cases of derelict, the rule limiting the salvage to a moiety seems to
be the fixed rule in the English admiralty and in our own. The Fortuna, 4 C. Rob.
193, and L'Esperance, 1 Dods. 46; The Blendenhall, ib. 414, 421; The Elliotta, 2 id.
75; Rowe v. The Brig 1 Mason, 372; The Henry Ewbank, Am. Jurist, No.
xxiii. 67; 1 Sumner, 401, s. c. Property is derelict, in the maritime sense of the word,
when it is abandoned without hope of recovery, or without an intention of returning.
Ware, 43.
(b) 2 Cranch, 268.
(c) The Neptune, 1 Hagg. Adm. 236; Hobart v. Drogan, 10 Peters, 108, 212.
(d) Newman v. Walters, 3 Bos. & P. 612; Bond v. The Brig Cora, 2 Wash. 80;
Case of Le Tigre, 3 id. 567; The Branston, 2 Hagg. Adm. 3, note. The general rule
is, that a salvage remuneration is given only to the persons actually occupied in the
salvage service. The Vine, ib. 1. But where the service has been performed at some
risk to the property of the owners, a portion of the remuneration has been allotted to
them. In cases of civil salvage, the courts of admiralty do not recognize the rule of
proportion, but award an equitable remuneration. Though the master and crew are
in strict language the only salvors, yet the owners of the salvor or saving ship are also
allowed salvage, and one third has been established as the suitable proportion under
ordinary circumstances. The Blaireau, 2 Cranch, 240; The Brig Harmony, Peters
Adm. 34, note; The Cora, ib. 361; 2 Wash. 80; The Ship Henry Ewbank, 1 Sumner,
400; The Salacia, 2 Hagg. Adm. 262. Underwriters may be entitled as owners to sal-
vage after an accepted abandonment. The Ship Henry Ewbank, supra. The act of
New York, of February 19, 1819, c. 18, sec. 19, (and which act was not repealed by
the New York Revised Statutes of 1830,) authorizes the Board of Wardens of the port
of New York to allow to branch and deputy pilots a reasonable reward for extra ser
vices for the preservation of vessels in distress. Vide supra, 176, note.
1 See 248, n. 1.
[339]
* 247
[PART V.
OF PERSONAL PROPERTY.
also, in a case of extraordinary peril, it is admitted, that great
exertions and personal hazard may exalt a pilotage service into
something of a salvage service, and salvage will be allowed. (e)
And if a ship has been abandoned, so as to discharge a seaman
from his contract, yet if he subsequently contributes to the pres-
ervation of the vessel, he will be entitled to salvage. (ƒ)
* 247 As the * duty of the seamen ceases by capture, any exer-
tion, subsequently and successfully made, to recover and
rescue the captured ship, will entitle them to recompense. (a)
The case will then be withdrawn from the operation of the gen-
eral, if not universal principle, that so long as the person, be he
a seaman, pilot, or other person, is acting within the line of his
duty in the given case, he has no valid claim for a salvage
remuneration.1
The subject of salvage was largely discussed in our courts in a
case of recapture. (b) The District Court of New York allowed
as salvage one half of the value of the ship. The Circuit Court
reversed the decree, and denied all salvage. The Supreme Court
of the United States corrected both decrees, and allowed one
sixth part of the net value, after deducting the charges. The
court, in that case, admitted the rule to be, that a neutral vessel,
captured by a belligerent, was entitled to be discharged without
paying salvage, on the ground that no beneficial service was
thereby rendered, as the neutral, acting properly, would, of
course, be discharged by the courts of the sovereign of the cap-
tor; and they admitted, likewise, the exception to the rule,
when belligerent captors and courts were notorious for their
unprincipled rapacity. This rule and the exception have been
frequently declared in the English Admiralty. (c) The rule of
(e) Sir William Scott, in The Joseph Harvey, 1 C. Rob. 306; The Frederick, 1 W.
Rob. 16.
(ƒ) Mason v. Ship Blaireau, 2 Cranch, 240; Hobart v. Drogan, 10 Peters,
108. In this last case it was decided, that seamen and pilots may, in extraordinary
cases, beyond the appropriate line of duty, perform salvage service, and be entitled to
compensation as salvors. But pilots or engineers of steamboats do not come within
the exception, though the rules of the marine law relative to disasters at sea apply
generally to navigation by steamboats. Mesner v. Suffolk Bank, U. S. D C. Mass.
1838.
(a) The Two Friends, 1 C. Rob. 271; The Beaver, 3 id. 292.
(b) Talbot v. Seeman, 1 Cranch, 1.
(c) The War Onskan, 2 C. Rob. 299; The Carlotta, 5 id. 54.
1 See 248, n. 1.
[ 340 ]
LECT. XLVII.]
* 248
OF PERSONAL PROPERTY.
1
British jurisprudence in respect to recaptured property, an sal-
vage thereon, is to give the benefit of the rule applicable to recap-
tured property of British subjects to allies, until it appears that
they act upon a less liberal principle, and then the allies are
treated according to their own measure of justice. (d)
The same rule has been * adopted by statute in this * 248
country, (a) and is founded on the immovable basis of
reciprocal justice.
Though the contract of seamen be not dissolved by shipwreck,
and it be their duty to remain and labor to preserve the wreck
and fragments of the ship and cargo, yet they may be entitled to
recompense, by way of salvage, for their peculiar services. The
wages recovered in the case of shipwreck are in the nature of sal-
vage, and form a lien on the property saved. The character of
seamen creates no incapacity to assume that of salvors; and were
it otherwise, it would be mischievous to the interests of commerce,
inconsistent with natural equity, and would be tempting the un-
fortunate mariner to obtain by plunder and embezzlement in a
common calamity, what he ought to possess upon principles of
justice. The allowance of salvage in such cases is and ought
to be liberal; not less, in any case, than the wages would have
amounted to; and even an additional recompense should be made
in cases of extraordinary danger and distinguished gallantry,
where the service was much enhanced by the preservation of life,
and the great value of the property at stake. (b) ¹
(d) The Santa Cruz, 1 C. Rob. 50. The British editor, Sergeant Shee, in Abbott
on Shipping, 5th Am. ed. p. 699, says that this case, The Santa Cruz, is a most finished
model of judicial eloquence. See, also, supra, i. 112.
(a) Act of Congress, March 3, 1800, c. 14, sec. 3.
(b) The Two Catherines, 2 Mason, 319. The court of admiralty has no power
of remunerating the mere preservation of life; but if it be connected with the pres-
1 Salvage. (a) When earned. It is
said not to be necessary that there should
be absolute danger in order to constitute
a salvage service; it is sufficient if there
is a state of difficulty and reasonable ap-
prehension. The Phantom, L. R. 1 Ad.
& Ec. 58; The Charlotte, 3 W. Rob. 68,
71; The Aztecs, 21 L. T. N. s. 797; The
Joseph C. Griggs, 1 Benedict, 81; The
Delphos, Newb. 412; The Independence,
2 Curtis, 350, 353. And risk to the sal-
vor is not a necessary element, even when
the service is performed by a tug under
a contract to tow the rescued vessel, al-
though it affects the quantum of the allow-
ance. The Pericles, Brown. & L. 80;
(explaining The Minnehaha, Lush. 335;
15 Moore, P. C. 133;) The Chetah, L. R.
2 P. C. 205, 212.
The principle that the reward is for
individual services, does not exclude an
allowance to absent owners whose prop-
[ 341 ]
* 248
[PART V.
OF PERSONAL PROPERTY.
11. Of the Dissolution of the Contract. The contract of
affreightment may be dissolved without execution, not only by
ervation of property, it forms a high ingredient of merit in the allowance of salvage.
1 Hagg. Adm. 83, 156. If the seamen remain by the ship, and exert themselves to the
utmost to save as much as possible from the wreck, they are entitled to their full
wages, if enough be saved for the purpose; and the law, from motives of policy,
allows them a further reward in the nature of salvage. The wages are to be paid
exclusively from the materials of the ship; but the salvage is a general charge upon
the whole mass of property saved, and it ought not, in such cases, to be less than the
expenses of their return home. The Dawn, Ware, 485, and the same case redecided
and illustrated with great force in the District Court of Maine, February Term, 1841.
American Jurist for October, 1841, p. 216, [Daveis, 121.]
erty suffered loss, or encountered risk in
rendering the service, as is explained p.
246, n. (d). The Charlotte, 3 W. Rob. 68;
The Camanche, 8 Wall. 448, 473; Water-
bury v. Myrick, Bl. & Howl. 34; The
Czarina, 2 Sprague, 48; The Andrina,
L. R. 3 Ad. & Ec. 286. See, especially,
Missouri's Cargo, 1 Sprague, 260, 271,
where it is put on the use of the owner's
ship, crew, and provisions, seemingly
irrespective of risk. The Norden, 1
Spinks, Ec. & Ad. 185; The Ship
Charles, Newb. 329, 338; The Janet
Mitchell, Swabey, 111; The Sir Ralph
Abercrombie, Carmichael v. Brodie, L.
R. 1 P. C. 454, 461. And on similar
grounds it is held that a corporation may
promote a suit for salvage. The Ca-
manche, 8 Wall. 448; The Blackwall,
10 Wall. 1. The owners of steamers are
allowed a greater compensation than own-
ers of sailing vessels. The Kingalock, 1
Spinks, Ec. & Ad. 263, 267; The Alfen,
Swabey, 189; The Enchantress, Lush.
93, 96; The William Penn, 1 Am. Law
Reg. 584; C. W. Ring, 2 Am. Law Rev.
259; Hennessey v. The Versailles, 1 Cur-
tis, 353, 363; The Princess Helena, 30 L.
J. N. s. Ad. 137, 139.
The services must be meritorious, in
the sense that salvage is a reward for
benefits actually conferred, not for a ser-
vice attempted to be rendered. The Che-
tah, L. R. 2 P. C. 205, 212; The Zephyrus,
1 W. Rob. 329, 330; The Edward Haw-
kins, Lush. 512; 15 Moore, P. C. 486;
The
The T. P. Leathers, Newb. 421, 428;
Whitaker, 1 Sprague, 282. And it is said
that even when services are rendered
under an agreement, compensation will
be contingent on the saving of property,
unless it was otherwise specified. The
Brig Susan, 1 Sprague, 499, 504. But
see The Undaunted, Lush. 90; The Az-
tecs, 21 L. T. N. s. 797. But it is not
necessary that safety should be due to
the exertions of the salvor alone, if they
contributed to the result. The Pontiac,
Newb. 131; 5 McL. 358; The Undaunted,
Lush. 90; The Atlas, Lush. 518, 527; 15
Moore, P. C. 329, 339; The Island City,
1 Black, 121.
The services must be greater or other.
than those which it was the duty of the
party to render.
party to render. Ante, 247; The Hanni-
bal. The Queen, L. R. 2 Ad. & Ec. 53;
The Wave v. Hyer, 2 Paine, 131.
If,
A tug, under a contract to tow a ves-
sel, is not relieved of her contract because
unforeseen difficulties occur in the com-
pletion of her task, but she may be
if performance becomes impossible.
by sudden violence of wind or waves, or
other accidents, the ship in tow is placed
'in danger, and the towing vessel performs
services which were beyond the scope of
the contract to tow, she will earn salvage,
even if she runs no risk. The Pericles,
Brown. & Lush. 80; The Minnehaha,
Lush. 335; 15 Moore, P. C. 133; White
Star, L. R. 1 Ad. & Ec. 68; The J. C,
Potter, 23 L. T. N. s. 603. So as to pilots
[ 342 ]
LECT. XLVII.]
*248
OF PERSONAL PROPERTY.
the act of the parties, but, in many cases, by the act of the
law.
Lee v. Ship Alexander, 2 Paine, 466.
But services rendered under a contract
for work and labor to be paid for at all
events, whether successful or not, are not
salvage services. The Independence, 2
Curtis, 350; Hennessey v. The Ver-
sailles, 1 id. 353. See The Brig Susan,
supra; Parker v. Brig Whitaker, 18
Law Rep. 497; Coffin v. Schooner John
Shaw, 1 Cliff. 230, 236; The Wm. Lush-
ington, 7 Notes of Cases, 361, 363; Hope
v. Brig Dido, 2 Paine, 243. The right of
seamen to salvage has been discussed ante,
196, n. 1. They are not excluded from
compensation for services rendered to
another vessel by the fact that it belonged
to the same owner with that on which
they are employed. The Sappho, L. R.
3 Ad. & Ec. 142; (explaining The Maria
Jane, 14 Jur. 857; 1 E. L. & Eq. 658.) It
seems that officers and crews belonging to
the United States navy may earn salvage
for remarkable services to American mer-
chant vessels. The Josephine, 2 Blatchf.
322, 328. See Robson v. The Huntress,
2 Wall. Jr. 59. Passengers were not al-
lowed salvage in The Vrede, Lush. 322;
30 L. J. N. s. Ad. 209; but it was admitted
that they might be salvors under extra-
ordinary circumstances. It is said that
their claim to salvage was allowed in The
Great Eastern, N. Y. D. C. 1864, 2 Pars.
Ship. 268, n. 5.
A vessel, through whose fault a colli-,
sion has taken place, is not compensated
for services to the other ship. She can-
not profit by her own wrong, and it is for
her own benefit to render them. Cargo
ex Capella, L, R. 1 Ad. & Ec. 356; The
Iola, 4 Blatchf. 28, 31; The Minnehaha,
Lush. 335, 348; 15 Moore, P. C. 133, 155.
Salvage may be forfeited or diminished
by misconduct of the salvors, such as em-
bezzlement, in co nection with the sal-
vage service. The Island City, 1 Black,
121; The Mulhouse, 22 Law Rep. 276;
The Martha, Swabey, 489; The Lady
Worsley, 2 Spinks, Ec. & Ad. 253, 256;
The Magdalen, 31 L. J. N. s. Ad. 22, 24,
Fielden, 11 W. R. 156; The Waterloo,
Blatchf. & Howl. 114. So it may be
diminished by negligence, in proportion
to the negligence, but not in proportion
to the damage occasioned by it. The
Cape Packet, 6 Notes of Cases, 565. See
The Atlas, inf. But the fraud of the mas-
ter does not defeat the claim of the own
ers and crew if the salvage is accom-
plished notwithstanding the fraud. The
Missouri's Cargo, 1 Sprague, 260; 18
Law Rep. 38. See The Atlas, Lush. 518,
529; 15 Moore, P. C. 329, 341.
There is no distinction between river
salvage in tidal water, not salt, and sea
salvage, except as affecting the quantum
of remuneration. The Carrier Dove,
Trask v. Maddox, 2 Moore, P. C. N. s.
243; Vivien v. Mersey Docks Board, L.
R. 5 C. P. 19, 28.
(b) Quantum. With regar to the
amount of salvage, two thirds has been
allowed, The Jubilee, 3 Hagg. Adm. 43, n.
(a); The Waterloo, Blatchf. & Howl. 114;
and the whole of a small amount has been
awarded under special circumstances.
The Hamilton, 3 Hagg. Adm. 168; Two
Anchors & Chains, 1 Benedict, 80. There is
no rule that the salvor is to have a moiety;
the true principle is adequate reward, ac-
cording to the circumstances of the case.
Post v. Jones, 19 How. 150; Two Hundred
and Ten Barrels of Oil, 1 Sprague, 91;
The Florence, 16 Jur. 572; 20 E. L. & Eq.
607, 622. As is said in 245, n. (ƒ), the
amount may be fixed by contract. The
Firefly, Swabey, 240; The Independence,
2 Curtis, 350, 357; The A. D. Patchin,
1 Blatchf. 414; Th H. B. Foster, Ab-
bott, Adm. 222. As to steamers, see
above in this note, (a).
•
(c) Derelict is discussed in many cases,
from which it appears that a momentary
abandonment of a vessel when the lives
of those on board seem to be in imminent
[ 343]
* 249
[PART V.
OF PERSONAL PROPERTY.
If the voyage becomes unlawful, or impossible to be performed,
or if it be broken up, either before or after it has actually com-
*
menced, by war or interdiction of commerce with the place
* 249 of destination, the contract is dissolved. (c) There is no
difference in principle between a complete interdiction of
commerce, which prevents the entry of the vessel, or a partial one,
in relation to the merchandise on board, which prevents it being
landed. The contract of affreightment in respect to the goods is
dissolved, for the shipper cannot demand the delivery of the goods
if the landing of them would expose the vessel to seizure. (a)
And if the voyage be broken up by capture on the passage, so as
to cause a complete defeasance of the undertaking, the contract
is dissolved, notwithstanding a subsequent recapture. (b) So, if
(c) Liddard v. Lopes, 10 East, 526.
(a) Patron v. Silva, 1 La. 277.
(b) The Hiram, 3 C. Rob. 180.
contract of affreightment or wages.
Capture does not of itself ipso facto dissolve the
It suspends it during the prize proceedings, and
it reattaches upon a recapture, which confers a title to salvage only, and restores and
does not extinguish the rights of neutrals. This is the general rule, and it is
well sustained by Mr. Just e Story, in the
danger, followed, as soon as judgment can
be exercised, by an intention of returning,
or an abandonment for the security of
the person accompanied with an intention
of returning provided that life is no lon-
ger in danger, or for the definite purpose
of getting aid at a specified port, with the
intention of returning as soon as the aid
is obtained, does not usually constitute an
ordinary case of derelict. The Cosmo-
politan, 6 Notes of Cases, supp. 17; The
John Perkins, ante, 196, n. 1; The Fenix,
Swabey, 13; The Champion, Brown. &
Lush. 69, (distinguishing The Coroman-
del, Swabey, 205;) The Island City, 1
Black, 121; 1 Cliff. 221; The T. P. Leath-
ers, Newb. 421; The George Nicholaus, ib.
449; The Pickwick, 16 Jur. 669; 20 E.
L. & Eq. 628. But see The John Gilpin,
Olcott, 77; The Joseph C. Griggs, 1
Benedict, 81.
In general the master of the saved ves-
sel is entitled to control her, and the sal-
vor cannot retain possession as against
him; but in cases of absolute derelict, and
some others, the salvor has a right to
case of the ship Hooper, 3 Sumner,
exclusive possession. The Champion,
Brown. & Lush. 69; The Cleopatra, 37
L. J. N. s. Ad. 31; The Gertrude, 30 L.
J. N. s. Ad. 130.
(d) Lien.— There is a maritime lien
for salvage services which is the founda-
tion of a proceeding in rem in the ad-
miralty, and which does not depend on
possession. (Compare 228, n. 1, (b);
234, n. 1, (e).) The H. D. Bacon, Newb.
274; The Missouri's Cargo, 1 Sprague, 260,
272; Cutler v. Rae, 7 How. 729, 731. See,
also, A Box of Bullion, 1 Sprague, 57;
The Lady Worsley, 2 Spinks, Ec. & Ad.
253, 255. The right to proceed in personam
depends on the owner's having received
the property; the salvor's claim being a
right against the property saved. The
Emblem, Daveis, 61, 68; The Independ-
ence, 2 Curtis, 350, 356. Compare 138,
n. 1; 218, n. 1. Whether an action for
salvage would lie at common law is per-
haps doubtful in England. Lipson v.
Harrison, 22 L. T. 83; 24 E. L. & Eq.
208; Castellain v. Thompson, 13 C. B.
N. s. 105.
[344]
LECT. XLVII.]
* 250
OF PERSONAL PROPERTY.
there be a blockade of the port of destination, by means of which
a delivery of the cargo becomes impossible, and the vessel returns
to the port of departure, the voyage is defeated and the contract
dissolved. (c)
But a temporary impediment of the voyage does not work a
dissolution of the charter party; and an embargo has been held
to be such a temporary restraint, even though it be indefinite as
to time. (d) The same construction is given to the legal opera-
tion of a hostile blockade, or investment of the port of departure,
upon the contract. It merely suspends the performance of it,
and the voyage must be broken up, or the completion of it be-
come unlawful, before the contract will be dissolved. (e) If the
cargo be not of a perishable nature, and can endure the delay,
then the general principle applies, that nothing but occurrences
which prevent absolutely the execution of the contract will dis-
charge it. The parties must wait until those which merely
retard its execution are removed. The commercial code
*
of France (ƒ) declares, that if, before the vessel sails on *250
her voyage, an interdiction of commerce with the country
to which she is bound takes place, the charter party is dissolved,
though it would be otherwise if a superior force hinders, for a
time, the departure of the ship, or if she were detained by supe-
rior force during the voyage.
In parting with the subject of this, and of the two preceding
lectures, I readily acknowledge the free use that has been made
of Lord Tenterden's excellent treatise on maritime law. It has
been the basis of the compilation, and it was impossible to find
any other model so perfect, or to make any material improve-
ment upon it. It is equally distinguished for practical good
sense, and for extensive and accurate learning, remarkably com-
pressed and appropriately applied. (a) Another work from which
549, on the ordinary principles of commercial law, in opposition to some of the admi-
ralty decisions of Lord Stowell, which proceed upon rather peculiar and enlarged
discretion in the administration of international law and policy in prize cases. See,
also, Spafford v. Dodge, 14 Mass. 72; The Elizabeth, 1 Peters Adm. 129.
(c) Scott v. Libby, 2 Johns. 336; The Tutela, 6 C. Rob. 177.
(d) Hadley v. Clarke, 8 T. R. 259; M'Bride v. Marine Ins. Company, 5 Johns.
808; Baylies v. Fettyplace, 7 Mass. 325.
(e) Palmer v. Lorillard, 16 Johns. 348.
(f) Code de Commerce, art. 276, 277.
(a) The 7th English ed. of Abbott on Shipping, by Sergeant Shee, and the 5th
[345]
* 251
[PART V.
OF PERSONAL PROPERTY.
I have derived much assistance is Mr. Holt's view of the English
navigation laws and of maritime contracts. He has followed in
the track of Lord Tenterden, and with great credit to himself.
His work is wholly free from the incumbrance of foreign learning
on the same subject. This omission gives the appearance of a
dry, practical character to the work, but the reading of it becomes
quite interesting by reason of the clearness of its analysis, the pre-
cision of its principles, the perspicuity of the style, and the manly
good sense of the author. The introductory part is particularly
excellent, for it contains a very condensed, yet comprehensive and
perfectly accurate view of all the principles in the work, entirely
disembarrassed from adjudged cases.
No one can observe, at first, without surprise, how extensively
and closely subsequent writers follow in the footsteps of those
who preceded them; but when we come to study the same topics,
handled so often by master spirits, we perceive that this must
necessarily be the case, in ethics and in law, where discoveries
are not to be made, as in the physical sciences. The entire region
of ethical and municipal jurisprudence has been amply
*251 explored, and with more than a *Denham or a Parry's
success. (a) Panatius was the original author of the sub-
stance of Cicero's offices, as Cicero himself acknowledges; and
that consummate work, in its turn, became the foundation of all
that Grotius, Puffendorf, Cumberland, and a thousand other writ-
ers, have laid down as the deductions of right reason, concerning
the moral duties of mankind. No person would think of compil-
ing a code of ethics without at least visiting the shades of
Am. ed. by Mr. Perkins, which includes the notes of the other editions and those of
the late Mr. Justice Story, contain a full and elaborate view of the law, with all its
late additions and improvements, both in England and America, on this most inter-
esting head of commercial jurisprudence. But the original text has become almost
overwhelmed by annotations, and the whole subject will soon require, if such accumu-
lations are to proceed, to be redigested. The first edition of Abbott, in 1802, was a
beautiful model of conciseness and simplicity.
(a) In the immense collection which was published at Amsterdam in 1669, of the
various works of Straccha, Santerna, and others, on nautical and maritime subjects,
we have laborious essays, replete with obsolete learning, on different branches of
commercial law, of no less than twenty Italian civilians, whose works are now totally
forgotten, and even their very names have become obscured by the oblivion of time.
Subsequent civilians may have erected stately tomes from the matter which their
ruins have furnished.
[346]
LECT. XLVII.] OF PERSONAL PROPERTY.
* 251
Tusculum, and still less would he think of erecting a temple of
jurisprudence, without adorning it with materials drawn from
the splendid monuments of Justinian, or the castellated remains
of feudal grandeur. The literature of the present day, "rich
with the spoils of time," instructs by the aid of the accumulated
wisdom of ages.
[347]
* 254
[PART V.
OF PERSONAL PROPERTY.
LECTURE XLVIII.
•
OF THE LAW OF MARINE INSURANCE.
MARINE insurance is a contract whereby one party, for a stip-
ulated premium, undertakes to indemnify the other against certain
perils, or sea-risks, to which his ship, freight, and cargo,¹ or some
of them, may be exposed, during a certain voyage, or a fixed
period of time.
In the consideration of a title in the law of such extensive
concern, and upon which so many learned volumes have been
exhausted, it has been found difficult to bring the subject within
manageable limits, and suitably restricted for the object of these
lectures. It has been my endeavor to state the leading principles
of the contract, and to dwell upon such parts only as are best
adapted for elementary instruction.
The subject will be considered under the following arrange-
ment: (I.) Of the formation and subject-matter of the contract.
(II.) of the voyage in relation to the policy. (III.) Of the rights
and duties of the insured in case of loss.
I. Of the Formation and Subject-matter of the Contract. (1) Of
the Parties. All persons, whether aliens or natives, may be
insured, with the exception of alien enemies, for it is a contract
authorized by the general law and usage of nations. (a) It
*254 was *for a long time an unsettled question in the English
law, whether the insurance of enemy's property was lawful.
(a) Pothier terms it a contract du Droit des Gens.
¹ Definition. — It applies to other inter-
ests besides those mentioned. Arnould,
Mar. Ins. ch. 1, ad fin., "Definitions;"
post, 262, 269.
In Commonwealth v. Wetherbee, 105
Mass. 149, 160, a contract of insurance in
general is defined as an agreement by
which one party, for a consideration
(which is usually paid in money, either in
one sum, or at different times during the
continuance of the risk), promises to make
a certain payment of money upon the
destruction or injury of something in
which the other party has an interest.
[348]
LECT. XLVIII.]
* 255
OF PERSONAL PROPERTY.
In the year 1741, a bill was brought into Parliament to prohibit
insurances on the property of the subjects of France, then at war
with Great Britain; and the propriety of such a restriction was
much discussed, and the bill was dropped. But in 1748, such a
bill passed into a law. (a) It prohibited, under a penalty, the
assurance on ships or merchandises belonging to France; and the
contracts for such policies were declared void. The statute of
33 Geo. III. c. 27, was to the same effect, though much more
severe in its penalties. Those statutes were temporary, and
applied only to the then existing war; and they left the question
still undecided as to the legality of such insurances, independent
of statute.
Lord Hardwicke, in the year 1749, declared, (b) that there
had been no determination that such insurances were unlawful,
and that it might be going too far to say, that all trading with
enemies was unlawful, and that there had been several insur-
ances of that sort during the war of 1741. But in Brandon v.
Nesbitt, (c) the Court of K. B. gave a fatal wound to the opinion,
that the insurance of enemy's property was lawful, though that
opinion had received considerable currency under the sanction
of the great name and influence of Lord Mansfield. (d) It was
certainly without any just foundation, either in the English law
or in the established policy and principles of the law of nations.
That case was a suit on a policy of insurance, brought in the
name of an English agent, for his principal, who was an alien
enemy; and it was adjudged that no action could be maintained
either by or in favor of an alien enemy. The case of Bris-
tow v. Towers (e) * was still more directly on the point, *255
and the legality and expediency of insurances of enemy's
property were discussed very much at large, and with great ability
and learning. The decision of the court was put upon the strict
ground, that the insurance of enemy's property was illegal, and
no action could be sustained on such a policy. A distinction was
afterwards taken in Bell v. Gilson, (a) where it was held that
the insurance of goods purchased in an enemy's country during
(a) Stat. 21 Geo. II. c. 4.
(b) Henkle v. The Royal Exchange Assurance Company, 1 Ves. 317.
(c) 6 T. R. 23.
(d) As see Planché v. Fletcher, 1 Doug. 251; Gist v. Mason, 1 T. R. 84.
(e) 6 T. R. 35.
(a) 1 Bos. & P. 345.
[349]
* 256
[PART V.
OF PERSONAL PROPERTY.
war, by a British agent, and shipped for British subjects, was a
lawful insurance. But every distinction of that kind was sub-
sequently abandoned; (b) and in the case of insurances on French
property previous to war, they were held not to cover a loss by
British capture after the war was renewed, even though the action
was not brought until after the restoration of peace. It was
declared, that an insurance of enemy's property, as well as all
commercial intercourse with the enemy, was, at common law,
unlawful, and that an insurance, though effected before the war,
made no difference, as a foreigner might otherwise insure previous
to the war, against all the evils incident to the war. Insurances
of enemy's property had been indulged, but never were legal.
The judicial language at last was, (c) that such insurances were
not only illegal and void, but repugnant to every principle of
public policy. The former opinion in favor of the expediency of
such insurances had never yet produced one single judicial deter-
mination in favor of their legality.
All the continental ordinances and jurists concur in the ille-
gality of such insurances. (d) Bynkershoek, in a chapter
* 256 * devoted to the consideration of this question, concludes
that the reason of war absolutely requires the prohibition
of insurance of enemy's property; because by assuming such
risks, we promote the maritime commerce of the enemy. Valin
considered that insuring enemy's property, and trading with the
enemy, was substantially the same thing; and he truly observed,
that when the English, in the war of 1756, insured French ships
and cargoes which were captured and condemned as prize of war,
and paid for by English underwriters, the nation only took with
one hand what it restored with the other. (a)
(b) Furtado v. Rogers, 3 Bos. & P. 191; Gamba v. Le Mesurier, 4 East, 407;
Brandon v. Curling, ib. 410.
(c) Lord Ellenborough, Kellner v. Le Mesurier, 4 East, 396. Lord Erskine, Ex
parte Lee, 13 Ves. 64. Property liable to capture and confiscation in war as belonging
to the enemy, cannot be lawfully insured within the jurisdiction of the capturing
power. The policy is void in its inception, or becomes so from the time the property
is impressed with a hostile character. Duer on Insurance, i. 420, [lect. 4, § 9.]
(d) The ordinances of Barcelona, as early as 1484, declared such insurances void.
Consulat de la Mer, par Boucher, ii. 717. See, also, Le Guidon, c. 2, sec. 5, in Cleirac,
Us et Coutumes de la Mer, 197, ed. 1671; Ord. of Stockholm, of 1756; 2 Magens, 257;
Ord. of the States General of the Netherlands, in 1622, 1657, 1665, and 1689, cited in
Bynk. Q. J. Pub. lib. 1, c. 21; Emerigon, des Ass. i. 128.
(a) Valin's Comm. ii. 32. See vol. i. lec. iv. how far a foreign domicile communi
cates to a citizen the disabilities of an alien enemy.
[350]
LECT. XLVIII.]
* 257
OF PERSONAL PROPERTY.
The doctrine of the European law, on this subject, was exten-
sively discussed and explicitly recognized in New York, in the
case of Griswold v. Waddington; (b) and as that doctrine is
founded on the same principle of general policy which interdicts
all commerce and trading with the enemy in time of war, it may
be considered as the established law of this country.1
With respect to persons who may be insurers, the rule of the
common law prevails with us; and any individuals, or companies,
or partnerships may lawfully become insurers; and we have no
incorporated companies, like those of the Royal Exchange Ass'ır-
ance and the London Assurance companies, with the monopoly or
exclusive right of making insurance as a company or partnership
on a joint capital. Each part owner may insure for himself, and
may act his pleasure as to the insurance of his individual propor-
tion of interest. (c) During the colonial government of this
country, as well as for the first fifteen or twenty years after the
peace of 1783, the business of insurance was almost entirely
carried on by * private individuals, each taking singly for *257
(b) 16 Johns. 438.
(c) A policy is not divisible, and if bad in part, it is bad in toto; and if void in its
inception as to one of the owners, it is void as to all. Parkin v. Dick, 11 East, 502;
Camelo v. Britten, 4 B. & Ald. 184; Lord Kenyon, in Bird v. Pigou, cited in 1 Phillips
on Ins. 91; [2 Selw. N. P. 13th ed. 932;] Clark v. Protection Ins. Co., 1 Story, 109. In
Keir v. Andrade, 6 Taunt. 498, it was decided, that if part of the goods were lawful,
and the residue not, the goods not subject to forfeiture were protected by the policy.
But the rule is too well settled to be disturbed, that the partial illegality of an entire
contract renders the whole void, and it applies as well to the contract of insurance as
to others. The more equitable rule, that the policy is void only as to the illegal part,
prevails in France. Pothier on Ins. n. 44; Duer on Insurance, 324-327, 393. Mr.
Duer is for confining the severity of the English rule to contracts of insurance neces-
sarily entire, and not susceptible of being treated as distinct and several.
—
1 Effect of War. It has been held in
cases arising out of the rebellion, that a
contract of insurance which was made and
partly executed before the war and which
cannot be dissolved without loss to one
party, although it would be suspended if
it could not lawfully be carried into exe-
cution, (Semmes v. City F. Ins. Co., 36
Conn. 543), will neither be dissolved nor
suspended, if it can be carried into exe-
cution consistently with the allegiance
of both parties. Manhattan Life Ins. Co.
v. Warwick, 20 Gratt. 614; New York
Life Ins. Co. v. Clopton, 7 Bush (Ky.), 179;
ante, i. 67, n. 1. With regard to agree-
ments made during the war, it may be
added that since the above note in vol. i.
was stereotyped, a decision contrary to that
of Kershaw v. Kelsey, there mentioned,
has been reached by the Supreme Court
of Iowa. Hill v. Baker, 32 Iowa, 302.
Cases arising out of the rebellion were
thought to stand on a peculiar footing in
McStea v. Matthews, 3 Daly, 349, where it
was held that a partnership between resi-
dents in the two sections was not dissolved
But see Howell v. Gordon, 40 Ga. 302.
[351]
*257
[PART V.
OF PERSONAL PROPERTY.
himself, and not in solido, a risk to the amount of his sub-
scription. (a) But incorporated companies began to multiply and
supplant private underwriters, and the business of insurance in
the United States is now carried on almost exclusively by incor-
porated companies. Individuals and unincorporated partnership
companies are still at liberty to carry on the business of insurance
to any extent they please, and the success of any such competition
with the incorporated companies would depend upon the ability
to command confidence, and the judgment and skill with which
the business was conducted. (b)
(2) Of the Terms and Subject of the Policy, and the Force of
Usage thereon. If the ship be specified in the policy, (c) ¹ it
1
(a) As early as 1725, Francis Rawle, of Philadelphia, proposed the establishment,
under legislative sanction, of a marine insurance office. This he did in a small vol-
ume printed by Dr. Franklin, and the first book he ever printed. See App. to Mr.
Wharton's memoir of the late William Rawle, Esq.
(b) Marine insurance was formerly a lawful business in New York, equally open to
all the world; but in 1829, the Legislature, by statute (Laws of New York, sess. 52,
c. 336), prohibited marine insurance, or lending on respondentia or bottomry, effected
within the state, to all persons and companies residing in any foreign country, acting
by any agent here. Persons and associations in other states, effecting such insurances
in New York, were taxed ten per cent on their premiums. The same check and
prohibition applies to insurances in New York against fire. N. Y. Revised Statutes,
i. 714. See, further, infra, 371. The statute law of Pennsylvania also prohibits all
kinds of insurance by foreign corporations or companies within the state. Purdon's
Dig. 545. The law in Massachusetts is more liberal, and it allows incorporated insur-
ance companies in other states and in foreign countries to insure by their agents,
upon compliance with certain conditions, intended to guard against abuse. Act of
1816, and Revised Statutes of 1836. Every incorporated insurance company in Mas-
sachusetts may insure vessels, freiglit, money, goods, and effects, and against captivity
of persons, and on the life of any person at sea, and on money lent upon bottomry and
respondentia, and against fire; on dwelling-houses and other buildings, and on mer-
chandise or other property within the United States. Statutes, 1817, 1819. Revised
Statutes, 1836, pt. 1, tit. 13, c. 37, sec. 2.
(c) A policy of insurance must be in writing, according to uniform usage and prac-
tice, and this is specially required by the statute of 35 George III., and by most of the
•
1 Oral and Written Policies. - Apart⚫Wall. Jr. 313; Sanborn v. Fireman's
from statute, a contract of insurance need Ins. Co., 16 Gray, 448; Goodall v. N. E.
not be in writing. Commercial Mut. M. Mut. Ins. Co., 25 N. H. 169, 193. Com-
Ins. Co. v. Union Mut. Ins. Co., 19 How. pare Security F. Ins. Co. of N. Y. v. Ken-
318; Trustees of First Baptist Church v. tucky M. & F. Ins. Co., 7 Bush (Ky.),
Brooklyn F. Ins. Co., 19 N. Y. 305; Walker 81; New England F. & M. Ins. Co. v.
v. Metropolitan Ins. Co., 56 Me. 371; Mo- Robinson, 25 Ind. 536; with Henning v.
bile Marine Dock & M. Ins. Co. v. McMil- U. S. Ins. Co., 47 Mo. 425. The last
lan, 31 Ala. 711; Constant v. Ins. Co., 3 cited case differed from the others in hold-
[ 352 ]
LECT. XLVIII.]
* 257
OF PERSONAL PROPERTY.
becomes part of the contract, and no other ship can be substituted
without necessity; but the cargo may be shifted from one ship
to another, if it be done from necessity, and the insurer of it will
still be liable. (d) An insurance on the body of a ship, except
foreign ordinances. Printed forms of policies are universally in use. Duer on Insur-
ance, i. 60, 62, and 64, n. 3. There are said to be six essential parts to every policy:
1. The parties; 2. The premiums; 3. The subject insured; 4. The amount insured;
5. The risks; 6. The voyage or term of the risk; and by the statute of 35 Geo. III.
no duration of the term of any policy can be for a longer term than twelve months.
Duer, ub. sup. 59, 101, 107, n. 3, 4. The application for insurance is usually made in
writing. The policy need only be signed. by the insurer, for the obligations on the
part of the assured are conditions merely on the performance of which his right to
indemnity depends. The policy itself contains an acknowledgment of the premium.
Ib. 65. It is perfect and binding as soon as the terms are agreed on, and the policy
signed by the designated officer, without actual delivery. Kohne v. Ins. Co. N.
America, 1 Wash. 93. Even if the terms of the policy be agreed on in writing, equity
will enforce the execution of the policy or payment, though a loss occurs in the mean
time. Motteux v. The London Ass. Co., 1 Atk. 545; Perkins v. Wash. Ins. Co., 4
Cowen, 646; M'Culloch v. Eagle Ins. Co., 1 Pick. 278. This last case allows a remedy
in such case at law. Mead v. Davison, 3 Ad. & El. 303.
(d) [Salisbury v. Marine Ins. Co. of St. Louis, 23 Mo. 553.] The owner may
change the master of the vessel insured in his discretion, without prejudice to the
ing that the charter and by-laws of the
defendant company made an oral agree-
ment to insure invalid.
In those jurisdictions where a written
policy is not necessary, there is a tendency
to hold that a policy made in pursuance of
an oral agreement is binding as soon as
executed, while still in the hands of the
company, and is held by them to the use
of the insured. Kohne's case, cited in
the note (c), seems to go no further than
this. Hallock v. Commercial Ins. Co., 2
Dutcher, 268; 3 Dutch. 645; Baxter v.
Massasoit Ins. Co., 13 Allen, 320. See
Real Est. M. F. Ins. Co. v. Roessle, 1
Gray, 336; (explained 16 Gray, 454;)
Lindauer v. Delaware M. S. Ins. Co., 13
Ark. 461.
When, however, as in England, an in-
strument in writing is required by statute,
a delivery of the instrument seems to be
as necessary as in other cases. Whether
it has been delivered or not is rather a
question of fact than of law. A policy
purporting to be signed, sealed, and de-
VOL. III.
23
livered by an insurance company,
and
made in conformity to the terms assented
to by the insured on a slip of the sort
explained, post, 286, n. 1, was held bind-
ing on them by the House of Lords against
the opinion of a majority of the judges,
although it had never left the hands of
the company; the custom being for the
insurers to keep it until sent for by the
assured or his broker. The grounds were
that the statement on the policy was to be
taken as conclusive against the company;
that the policy was to be treated as deliv-
ered from the moment the parties intended
it to be operative (having the custom in
view); and that the practice of executing
the policy in the absence of the insured,
and waiting for him to send for it, assumes
a previous assent on the part of the in-
sured to the policy to be executed. Xenos
v. Wickham, L. R. 2 H. L. 296; 14 C. B.
N. 8. 435; 13 C. B. N. s. 381; an able
statement of the opposite view will be
found in the judgment of Willes, J., L. R.
2 H. L. 313.
[353]
* 258
[PART V.
OF PERSONAL PROPERTY.
when varied by special agreement, sweeps in, by the comprehen-
siveness of the expression, whatever is appurtenant to the ship.
This is the doctrine taught in all the continental writers on insur-
ance, as well as in the English law. (e) An insurance on a ship
means prima facie the legal interest in the vessel, and not the
mere equitable interest, and if the policy be intended to
*258 cover the equitable interest only, that * interest ought to
*
be disclosed to the insurer. (a) An insurance will be valid
without naming the ship, as upon goods on board any ship or
ships; and it becomes sometimes a nice question as to the appli-
cation of the loss, when there are two or more policies of that
loose description on different parcels of goods. (b)¹ So, it will be
valid if made on account of A., or of whom it may concern. (c)
In England, the statute of 25 Geo. III. c. 44, prohibits insur-
ances in blank, as to the name of the insured; and the name
of the party in interest, or some agent in his behalf, must be
inserted, and the policy cannot be applied to any property which
does not belong to the party named, or in which he is not inter-
ested; but the suit on the policy may be brought in the name of
the principal or agent. (d) The interest of the real owner may
insurance, provided it be done in good faith, and a substitute of competent skill be
provided. Platt, J., Walden v. Firemen Ins. Company, 12 Johns. 128. It is immate-
rial whether the written words of a policy be inserted in the body of the instrument,
or written on its face, or in the margin. De Hahn v. Hartley, 1 T. R. 343; Bean v.
Stupart, Doug. 11; Kenyon v. Berthon, ib. 12, n. But Mr. Duer thinks, and justly,
that a memorandum on the back of a policy, not referred to in the instrument, nor
signed by the insurer, is a nullity. Duer on Insurance, i. 76. So a material altera-
tion in a policy, without the consent of the insurer, though made in the margin or by
interlineation, destroys it; if the alteration be immaterial, it is otherwise. The cases
to this point are collected in Duer on Insurance, i. 143, n.; ib. 81. Insurances are
to be liberally construed in favor of the assured, for that is most consonant to the
intentions of the party. So an exception to the risks is to be construed strictly against
the insurer, and for the same reason. Ib. 161.
(e) Emerigon, i. 423; Boulay-Paty, iii. 379; Pardessus, iii. n. 758; Plantamour v.
Staples, 1 T. R. 611, note.
(a) Ohl v. Eagle Ins. Company, 4 Mason, 390. [Bailey v. Hope Ins. Co., 56 Me.
474.]
(b) Emerigon, i. 173; Kewley v. Ryan, 2 H. Bl. 343; Henchman v. Offley, ib. 345,
note.
(c) Boulay-Paty, iii. 528, 531, iv. 28.
(d) Cox v. Parry, 1 T. R. 464. It may be brought in the name of the party by
1 Running Policies.- Running policies
upon goods on board ships as may be de-
clared have become common. The assured
can appropriate such a policy to goods on
board any ship, and if the appropriation
is made in good faith, and the ship de
[354]
LECT. XLVIII.]
* 258
OF PERSONAL PROPERTY.
be averred and shown; but if one partner insures in his own.
name only, the policy will cover his undivided interest in the
partnership, and no more. (e) If the policy has the words, and
whomsoever it may concern, then it will cover the whole partner-
ship interest; (ƒ) and Valin and Boulay-Paty think it covers
the whole, if the policy be generally on his goods. (g) On such
a policy an action may be maintained by any one of the owners
whose interest was intended to be insured by it. It will cover
a person who has but a special interest, as by lien or other-
wise. (h) Those general words, whom it may concern, will only
apply to the person having an interest in the subject insured, and
who was in the contemplation of the contract. (i) 2 But a policy
whom or for whom the contract was made. Bayley, J., in Sargent v. Morris, 3 B. &
Ald. 280, 281. [Somes v. Equitable Safety Ins. Co., 12 Gray, 531.]
(e) Valin's Comm. ii. 34; 1 Emerigon, 293, 294; Graves v. Boston Marine Ins. Com-
pany, 2 Cranch, 419; Dumas v. Jones, 4 Mass. 647; Turner v. Burrows, 5 Wendell,
541.
(ƒ) Lawrence v. Sebor, 2 Caines, 203.
(g) Valin, ii. 34; Boulay-Paty, iii. 386.
(h) Catlett v. The Pacific Ins. Company, 1 Wend. 561; s. c. 4 id. 75.
(2) Newson v. Douglass, 7 Harr. & Johns. 417; Bauduy v. Union Ins. Company, 2
Wash. 391; De Bolle v. Pennsylvania Ins. Company, 4 Wharton, 68. The insured
must have an interest in the property when the insurance was made, and at the time
of the loss. Hancox v. Fishing Ins. Company, 3 Sumner, 132.
clared to the underwriter at the earliest
convenient opportunity, he will be bound,
although the ship has been lost before he
is notified. Gledstanes v. Royal Exch.
Ass., 5 Best & Sm. 797 (a strong case);
E. Carver Co. v. Manufacturers' Ins. Co.,
6 Gray, 214. See Ionides v. Pacific Ins.
Co., L. R. 6 Q. B. 674, 682. But com-
pare Douville v. Sun M. Ins. Co. of N. Y.,
12 La. An. 259; Hartshorn v. Shoe &
Leather Dealers' Ins. Co., 15 Gray, 240,
246, 249; Pierce v. Columbian Ins. Co.,
14 Allen, 320, 321; Edwards v. St. Louis
Perpetual Ins. Co., 7 Mo. 382.
But it has been held that when the
premiums, of which the receipt was
acknowledged in the body of a running
policy, were nominal, and were to be in-
creased or reduced at the time of indorse-
ment, according to the rating and nation-
ality of the vessel, such clauses to apply
as the company might insert, as the risks
were successively reported, the contract
did not attach to a particular shipment
until this was done. Orient Mut. Ins.
Co. v. Wright, 23 How. 401; Sun M. Ins.
Co. v. Wright, ib. 412. See Douville v.
Sun M. Ins. Co. of N. Y., 12 La. An. 259;
Hartshorn v. Shoe & Leather Dealers'
Ins. Co., 15 Gray, 240; Pierce v. Colum-
bian Ins. Co., 14 Allen, 320, 321. But
see dissenting opinion of Clifford, J., 23
How. 414; Bunten v. Orient M. Ins. Co.,
8 Bosw. 448; 2 Keyes, 667; Rolker v.
G. W. Ins. Co., 3 Keyes, 17, 22.
2 Watson v. Swann, 11 C. B. N. s. 756;
Steele v. Franklin F. Ins. Co., 17 Penn.
St. 290; Haynes v. Rowe, 40 Me. 181;
Augusta Ins, & B. Co. of Ga. v. Abbott,
12 Md. 348; Protection Ins. Co. v. Wil-
son, 6 Ohio St. 553; Duncan v. Sur Mut.
Ins. Co., 12 La. An. 486. See 872, n. 1.
[355]
259
[PART V.
OF PERSONAL PROPERTY.
may be applied to cover the interest intended to be insured,
though the owner of it was not known to the parties, provided
the terms of the policy will permit it. (j)
The form of the policy in England and the United States con-
tains the words lost or not lost; and if the subject insured be lost,
or has arrived in safety when the contract is made, it is still valid,
if made in ignorance of the event, and the insurer must
*259 pay the loss, or not pay it, as the * case may be. (a) This
is laid down by the foreign jurists as a general principle of
insurance, without reference to those words which are said to
be peculiar to the English policies; and it is said that without
them the policy would be void, if the subject was lost when the
insurance was made. (b) There is no English adjudication to that
effect; and the point may well be doubted, inasmuch as all the
continental authorities hold such insurances to be valid, if made
in ignorance of the existing loss. (c)
A policy on a voyage from abroad may be good, though it omits
to name the ship, or master, or port of discharge, or consignee,
or to specify and designate the nature or species of the cargo, for
all these may be unknown to the insured when he applies for the
insurance. (d) The policy, in such a case, will be good to the
amount insured, if effects be laden in any ship, to any port, and
to any consignee. The text-writers, however, require cargo of
the same form and species, and the policy will not cover the same
thing under a new modification, if the essential character of the
article has changed; as a policy on a cargo of wheat will not cover
a cargo of flour. (e) A policy on cargo or goods generally will
not cover goods stowed on deck, nor live stock, unless there be
some local mercantile usage to give extension to the terms. (ƒ)
(j) Buck v. Chesapeake Ins. Company, 1 Peters, 151.
(a) A policy with those words will cover a loss if the interest was not acquired
until after the loss. Sutherland v. Pratt, 11 M. & W. 296.
(b) 5 Burr. 2803, 2804; Park on Insurance, 31.
(c) Rota Genuæ Decisio, 42, n. 8; Roccus, de Ass. n. 51; Emerigon, ii. 121; Rug-
gles v. Gen. Int. Ins. Company, 4 Mason, 74; Kohne v. Ins. Company of North
America, 1 Wash. 93. In Hammond v. Allen, 2 Sumner, 397, Mr. Justice Story thinks
that the policy would be binding, though the ship was lost at the time, and though
the policy had not the words lost or not lost, if the parties acted in mutual ignorance of
that event. [It was so held in Folsom v. Mercantile Mut. Ins. Co., 8 Blatchf. 170.]
(d) Le Guidon, c. 12, art. 2; Ord. de la Mar. tit. des Assurances, art. 4; Code de
Commerce, art. 337; Boulay-Paty, Cours de Droit Com. iii. 411, 412.
(e) Boulay-Paty, iii. 388, 389. See infra, 310.
(ƒ) Lenox v. United Ins. Company, 3 Johns. Cas. 178; Allegre v. Maryland Ins.
[356]
LECT. XLVIII.]
* 260
OF PERSONAL PROPERTY.
And a policy may be on bills of exchange, if they truly exist. (g)
If bottomry, or respondentia interest, be insured by the lender, it
has been required to be insured eo nomine, and not under the
general description of goods. (h) But this rule was originally
adopted on the ground of mercantile usage; and where the usage
was shown to be different, such an interest was allowed
sense.
*to be covered by a policy on goods. (a) If any of the *260
terms used in a policy, or representation made to the
insurer, have, by the known usage of trade, and the practice, as
between the insurers and the insured, acquired an appropriate or
commercial sense, they are to be construed according to that
All mercantile contracts, if dubious, or made with refer-
ence to usage, may be explained by parol evidence of the usage. (b)
But the rule is checked by this limitation, that the usage, to be
admissible, must be consistent with the principles of law, and not
go to defeat the essential provisions of the contract. (c)¹ If part
Company, 2 Gill & Johns. 136; Wolcott v. Eagle Ins. Company, 4 Pick. 429; Smith
v. Miss. Mar. and Fire Ins. Company, 11 La. 142; Taunton Copper Company v.
Merchants' Ins. Company, 22 Pick. 108. A general policy on freight will only cover
freight earned by carrying goods under deck. Adams v. Warren Ins. Company, ib.
163.
1
(g) Palmer v. Pratt, 2 Bing. 185. Gold and silver have been considered by the
text-writers to be covered by a policy on goods, wares, and merchandise. Marshall
on Ins. 327; Hughes on Ins. 128; Phillips on Ins. 66. And current bank bills have
been adjudged to be covered under the generic name of property. Whiton v. Old
Colony Ins. Co., 2 Metcalf, 1.
(h) Glover v. Black, 3 Burr. 1394; Robertson v. United Ins. Company, 2 Johns
Cas. 250; Kenny v. Clarkson, 1 Johns. 385.
(a) Gregory v. Christie, 1 Condy's Marshall on Insurance, 118.
(b) Coit v. Com. Ins. Company, 7 Johns. 385; Allegre v. Maryland Ins. Company,
6 Harr. & Johns. 408; Robertson v. Clarke, 1 Bing. 445; Renner v. Bank of Colum-
bia, 9 Wheat. 591; Columbian Ins. Company v. Catlett, 12 id. 383; Hancox v.
Fishing Ins. Company, 3 Sumner, 132.
(c) Palmer v. Blackburn, 1 Bing. 61; Bryant v. Com. Ins. Company, 6 Pick. 131;
1 Construction. (a) Usage. Some
further discussion of the subject of usage
will be found in Dickinson v. Gay, 7
Allen, 29; Bliven v. N. E. Screw Co., 23
How. 420; Commercial Bank of Ky. v.
Varnum, 3 Lansing, 86. As to insurance
in particular, Sweeting v. Pearce, 9 C. B.
N. 8. 534; 7 C. B. N. s. 449; Miller v. Teth-
erington, 6 Hurlst. & N. 278; 7 H. & N.
954; Hall v. Janson, 4 El. & Bl. 500; Mo-
bile Marine Dock M. Ins. Co. v. McMillan,
27 Ala. 77; Grant v. Lexington F. L. & M.
Ins. Co., 5 Ind. (Porter) 23; Child v. Sun
M. Ins. Co., 3 Sandf. 26; Mut. Safety
Ins. Co. v. Hone, 2 Comst. 235; Walsh v.
Homer, 10 Mo. 6, 16; Warren v. Frank-
lin Ins. Co., 104 Mass. 518; Seccomb v.
Provincial Ins. Co., 10 Allen, 305; Hen-
nessy v. N. Y. M. M. Ins. Co., 1 Oldright,
259; Louisiana M. Ins. Co. v. N. O. Ins.
Co., 13 La. An. 246.
(b) Writing and Print.
As to the
[ 357 ]
* 260
[PART V.
OF PERSONAL PROPERTY.
of the policy should be written and part printed, and there should
arise a reasonable doubt upon the meaning of the contract, the
Bankin v. American Ins. Company, 1 Hall (N. Y.), 619. No particular usage or cus-
tom can be admitted to alter or impair a clear and express written contract of the
parties. The evidence of usage can only be admitted when the intention of the par-
ties is indeterminate, and the language of the contract may admit of various senses.
Schooner Reeside, 2 Sumner, 567. Mr. Justice Story, in that case, and in Donnell v.
Columb. Ins. Company, 2 Sumner, 377, thought that usages among merchants ought
to be very sparingly adopted as rules of law, as they are often founded in mere mis-
take, and in a want. of comprehensive views of the full bearing of principles. So
Lord Denman observed, in Trueman v. Loder, 11 Ad. & El. 589, that the cases on the
custom of trade go no further than to permit the explanation of words used in a sense
different from their ordinary meaning, or the addition of known terms not inconsist-
ent with the written contract; and the court in that case leaned strongly against the
appeal to custom to explain or vary written contracts. The general rule on this sub-
ject of the admission of parol evidence to explain, by custom and usage, the meaning
of the parties, is, that if the words used in the contract be technical, or local, or generic,
or indefinite, or equivocal, on the face of the instrument, or made so by proof of
extrinsic circumstances, parol evidence is admissible to explain by usage their mean-
ing in the given case. If there be no such ingredient of uncertainty, then the evi
dence is not admissible. This seems to be the result of the decisions on the subject
Yates v. Pym, 6 Taunt. 446; Blackett v. The Royal Exchange Ass. Co., 2 Cr. & J.
244; Fowler v. The Ætna Ins. Co., 7 Wend. 270; Dow v. Whetten, 8 Wend. 160.
Astor v. The Union Ins. Co., 7 Cowen, 202; Coit v. The Comm. Ins. Co., 7 Johns
385. A particular word, says the Court of Exchequer, in Mallan v. May, 13 M & W.
511, may be shown by parol evidence to have a different meaning in some particular
place, trade, or business, from its proper and ordinary acceptation. Mr. Duer con
tends from a critical examination of the cases, that usage may control or supersede
construction or rule of law if the usage be general, uniform, notorious, reasonable, and
consistent with the terms of the policy, and to a certain extent with the rules of law.
A valid usage is part of the contract. Duer on Insurance, i. 255–282, and the Proofs
and Illustrations, 283-311. The doctrine for which Mr. Duer contends is illustrated
and enforced with admirable analysis of the authorities, and with surpassing ability
and force. Mr. Justice Story even states it as a general rule, that a contract is under-
stood to contain the customary clauses, although they are not expressed, according to
the known maxim,— In contractibus tacite veniunt ea, quæ sunt moris et consuetudinis.
Story on Bills, 161. In Wallace v. Bradshaw, 6 Dana (Ken.), 385, it was held,
greater effect to be given to the written
parts of an instrument, see Gumm v. Tyrie,
4 Best & Sm 680; 6 B. & S. 298; Gray
v. Carr, L. R. 6 Q. B. 522, 536, 553, 557;
(in this case, Brett, J., says that Pearson
v. Goschen, 17 C. B. N. s. 352, points out
a modification of the older rule as to
giving, if possible, a meaning to every
term of the contract, in cases where a
modern mercantile instrument is known
to be in a printed and general form, with
parts of it to be filled up in writing, to
apply it to particular transactions; and
see Woodruff v. Commercial M. Ins. Co.,
2 Hilton, 122;) Benedict v. Ocean Ins.
Co., 31 N. Y. 389, 397; Goss v. Citizens'
Ins. Co., 18 La. An. 97.
See, generally, Leeds v. Mechanics'
Ins. Co., 8 N. Y. (4 Seld.) 351; Bryant v.
Poughkeepsie M. F. Ins. Co., 21 Barb.
154; People v. Saxton, 22 N. Y. 309;
Hernandez v. Sun M. Ins. Co., 6 Blatchf.
317, 325; Cushman v. N. W. Ins. Co., 34
Me. 487.
[ 358 ]
LECT. XLVIII.]
* 260
OF PERSONAL PROPERTY.
greater effect is to be attributed to the written words, for they are
the immediate language selected by the parties, and the printed
words contain the formula adapted to that and all other cases
upon similar subjects. (d)
The ancient laws of insurance required the insured to bear
the risk himself of one tenth of his interest in the voyage. This
was to stimulate him, by a sense of his own interest, to watch
more vigilantly for the preservation of the cargo. The Dutch
ordinances of Antwerp, Middleburg, and Amsterdam, and the Lę
Guidon, had such provisions. (e) But these provisions have been
omitted in all the modern codes, as being odious and useless, and
the merchant can have his interest insured to the entire extent of it.
Policies are generally effected though the agency of brokers;
and the insurance broker keeps running accounts with both parties,
and becomes the mutual agent of both the underwriter and the
insured. His receipt of the premium places him in the relation
of debtor to the one party, and creditor to the other. The general
rule is, that the broker is the debtor of the underwriter for the
premiums, and the underwriter the debtor of the assured for the
loss. The receipt of the premium in the policy is conclusive
evidence of payment, and binds the insurer, unless there be fraud
on the part of the insured. (ƒ) 2 If the agent effects an insurance
that a commission merchant, receiving goods on general consignment from a distant
owner, and making advances therefor, might, for his own interest and safety, be
authorized, by the usage of the place, in certain circumstances, at his discretion, and
for the benefit of himself and the consignor, to ship the goods to a more advantageous
market, or one deemed so, especially if a sale at the place would not indemnify him
for his advances; and that if such was the known custom of the place, (New Orleans),
it would be reasonable to sustain the authority. Mr. Duer, in his Treatise on Insur-
ance, i. lectures 2d and 3d, 158-312, gives a lucid and full collection and illustration
of the rules of interpretation of policies of insurance under the admission and con-
trol of parol evidence and mercantile usage; and to which I refer, as well as to the
very able and complete title on the admissibility of parol evidence to affect written
contracts, in Professor Greenleaf's Treatise on the Law of Evidence, i. 329-374. In
Finney v. Bedford Com. Ins. Co., 8 Met. 348, it is held, that the rule excluding parol
evidence to contradict or vary a written agreement, applies as well to policies of
insurance as to other agreements.
(d) Lord Ellenborough, 4 East, 136; Coster v. Phoenix Ins. Company, C. C. Penn.
April, 1807 [2 Wash. 51.]
(e) 2 Magens, 26, 68; Le Guidon, c. 2, art. 11.
(ƒ) Dalzell v. Mair, 1 Camp. 532; Foy v. Bell, 3 Taunt. 493. [Sup. n. 2.]
2 Brokers. Effect of Receipt. — The
text is confirmed by Anderson v. Thorn-
ton, 8 Exch. 425; Provident L. Ins. Co.
v. Fennell, 49 Ill. 180. The broker is
considered as having paid the premium
to the underwriter, and the latter as hav
[359]
* 261
[PART V.
OF PERSONAL PROPERTY.
for his principal without his knowledge or authority, and the
principal afterwards adopts the act, the insurer is bound,
261 and cannot object to the want of authority. (a) But if
*
A. insures the property of B. without authority (and the
master of a vessel, merely as master or a part owner, as such,
has no such authority), and without any adoption of the act by
B., the contract is not binding. (b) A merchant who has effects
of his foreign correspondent in hand, or who is in the habit of
insuring for him, is bound to comply with an order to insure, and
the order may be implied in some cases from the previous course
of dealing between the parties. If the agent neglects or imper-
fectly executes the order, he is answerable as if he himself was
the insurer, and is entitled to the premium. (c)
If the subject matter of the policy be assigned before loss, the
policy may also be assigned, so as to give a right of action to a
trustee for the assignee.¹ But if there be no statute provision
(a) Bridge v. Niagara Insurance Company of New York, 1 Hall (N. Y.), 247.
(b) Bell v. Humphries, 2 Stark. 345; French v. Backhouse, 5 Burr. 2727; Foster
v. United States Ins. Company, 11 Pick. 85; [Baines v. Ewing, L. R. 1 Ex. 320.]
(c) Buller, J., in Wallace v. Tellfair, 2 T. R. 188, note, and in Smith v. Lascelles,
2 T. R. 188; De Tastett v. Crousillat, 2 Wash. 132; Morris v. Summerl, ib. 203. A
commission merchant is not bound to insure, for the benefit of his principal, goods
consigned to him for sale, without some express or implied directions to that effect;
though he has such an interest in the goods that he may insure them to their full value
in his own name. Brisban v. Boyd, 4 Paige, 17. [Cf. 376, n. 1 (a).]
ing lent it to the broker again, and so
becoming his creditor. Power v. Butcher,
10 B. & C. 329, 347. On this ground pre-
miums are recovered by the assured under
the count for money had and received,
without any reference to whether the
broker's credit has run out or not. Xenos
v. Wickham, 14 C. B. N. s. 435, 456; see
s. c. L. R. 2 H. L. 296, 319.
The receipt in a policy of life insur-
ance is open to explanation when the
party insured himself obtained the policy.
Baker v. Union M. L. Ins. Co., 43 N. Y.
283; Thompson v. American Tontine
Ins. Co., 46 N. Y. 674; and when a broker
does not intervene, as explained above, it
is supposed that a receipt in any policy
would have only its ordinary effect.
tent of the powers of insurance brokers.
Xenos v. Wickham, 14 C. B. N. s. 435,
464; L. R. 2 H. L. 296, 320. As to the
responsibility of agents employed to effect
insurance, see Hurrell v. Bullard, 3 F. &
F. 445; Smith v. Price, 2 F. & F. 748;
Sawyer v. Mayhew, 51 Me. 398.
1 It has been thought that so long as the
party to whom the policy was issued re-
mains the assured, a recovery on the
policy will be prevented by his parting
with the subject matter, although he at
the same time declare a trust as to the in-
surance money in favor of the purchaser.
See 261, n. (e), 376, n. 1, b, h, where the sub-
ject is discussed, and where it will be seen
that what is called an assignment in some
cases is a novation, or new insurance of a
It is not possible to go into the ex- new party on a new interest.
[360]
LECT. XLVIII.]
* 262
OF PERSONAL PROPERTY.
•
(as there is in Pennsylvania), (d) the assignee in a case of assign-
ment in trust must sue in the name of the assignor, who will
not be permitted to defeat or prejudice the right of action of the
assignee. The declaration, in such a suit, may contain the aver-
ment that the plaintiff sues as mere trustee, and that the whole
interest is in others. (e)
* (3) Of Insurable Interests. - The assured must have *262
a lawful interest subsisting at the time of the loss in the
subject insured, to entitle him to recover upon his policy. That
interest may be absolute or contingent, legal or equitable. It
may exist in him not only as absolute owner, but also in the
character of mortgagor or mortgagee, borrower or lender, con-
signee, factor, or agent, and may arise from profits, freight, or
commissions, or other lawful business. The subject will be better
illustrated by considering it with its qualifications under the fol-
lowing heads, viz.: 1. Illicit Trade. 2. Contraband of War. 3.
Seamen's Wages. 4. Freight, Profits, and Commissions. 5. Open
and Valued Policies. 6. Wager Policies. I shall treat of each
of them in their order.
1. (Of illicit trade.) - The proper subject of insurance is law-
ful property engaged in a lawful trade; and if the voyage, as
(d) 1 Binney, 429.
(e) 2 Condy's Marshall on Insurance, 800, 803, 805; 1 Phillips on Insurance, 11 ;
Carter v. United Ins. Company, 1 Johns. Ch. 463; Wakefield v. Martin, 3 Mass. 558;
Bell v. Smith, 5 B. & C. 188; Ashhurst, J., in Delaney v. Stoddart, 1 T. R. 22; Craig
v. The United States Ins. Company, 1 Peters C. C. 410. A clause in a policy, that it
shall be void if assigned without the consent, in writing, of the insurer, is taken
strictly, and means an effectual transfer or pledge of the particular policy. In Massa-
chusetts, it has been decided, that if there be an absolute transfer of the subject
insured before loss, the contract of insurance is avoided, for the assured cannot sue,
as he has not suffered any loss, and the assignee cannot sue, for he is no party to the
contract. But if the assignment be in the nature of a mortgage, or in trust, the
insured may nevertheless sue and recover to the extent of his residuary interest.
Carroll v. The Boston Marine Ins. Company, 8 Mass. 515; Lazarus v. Commonwealth
Ins. Company, 5 Pick. 76. In Delaney v. Stoddart, 1 T. R. 22, Ashhurst, J., said that
a policy might be assigned in equity; and that in the K. B. an action would be per-
mitted to be brought by trustees. So also in Powles v. Innes, 11 M. & W. 10, Parke,
B., observed, that parties might sue as trustees for the purchaser. It would seem
from the cases, that an assignment of a policy is only available when transferred in
Heath v. American Ins. Company, N. Y. Superior Court, May, 1841. See,
also, infra, 371, 375, as to the assignment of policies against fire. The principle seems
to be the same in both cases, that if the interest insured be assigned before loss with-
out the consent of the insurer (and then it becomes a new contract), the policy ceases.
[Post, 376, n. 1.]
trust.
[ 361 ]
263
[PART V.
OF PERSONAL PROPERTY.
originally insured, be lawful, a subsequent illegality does not
affect it, if the loss be not tainted with such illegality. We have
seen that the property of enemies, and a trade carried on with
enemies, do not come within this definition. So, an insurance
on a voyage, undertaken in violation of a blockade, or of an
embargo, or of the provisions of a treaty, is illegal, whether the
policy be on the ship, freight, or goods embarked in the illegal
traffic. (a) Any illegality in the commencement of an entire voy-
age will render the whole illegal, and destroy the policy intended
for its protection. (b) ¹
It is a clear, settled, and universal principle, that an insurance
on property, intended to be imported or exported, contrary to the
law of the place where the policy is made, or sought to be en-
forced, is void. The illegality of the voyage in all cases avoids
the policy, and the voyage is always illegal when the goods or
trade are prohibited, or the mode of its prosecution violated the
provisions of a statute. (c) No court, consistently with its duty,
can lend its aid to carry into execution a contract which involves a
violation of the laws the court is bound to administer. (d)
*It has been a question of great discussion, whether a
trade prohibited by one country might be made the subject
of lawful insurance, to be protected and enforced in the courts
* 263
(a) The Hurtige Hane, 3 C. Rob. 324; Dalmady v. Motteux, K. B. 25 George III.
[1 T. R. 85, n. ;] Park on Insurance, 311; Harratt v. Wise, 9 B. & C. 712; Medeiros
Hill, 8 Bing. 231; Sir W. Scott, in The Eenrom, 2 C. Rob. 6; Hughes on the Law
of Insurance, 70.
(b) Wilson v. Marryatt, 8 T. R. 31; Bird v. Appleton, ib. 562. But the transporta-
tion of prohibited goods ought not and does not affect a distinct policy upon the lawful
goods in the same voyage, of a distinct owner. The Jonge Clara, Edw. Adm. 371;
Pieschell v. Allnutt, 4 Taunt. 792.
(c) Duer on Insurance, i. See Proofs and Illustrations, 380-387.
(d) Johnston v. Sutton, Doug. 254; The United States v. The Paul Shearman, 1
Peters C. C. 98; 1 Phillips on Insurance, 35; 1 Emerigon, 210, c. 8, sec. 5. And see
his opinion in a note to 2 Valin, 130, in which he refers to Straccha de Assecur.
Glossa, 5, n. 2, 3, where we have the establishment of the above doctrine, that the
insurance of prohibited goods is null and void, founded on the sound principle, that
in mercibus illicitis non sit commercium. The same principle is in Roccus, de Assecur.
n. 21, and he copied it almost verbatim from Santerna, de Assecur. et Spons. Merc.
pt. 4, n. 17.
A policy on goods shipped in breach of municipal laws affects not only
the policy upon the goods themselves, but also those upon the ship and freight, for a
voluntary reception of the goods on board is a violation of law. Gray v. Sims, 3
Wash. 276.
1 See Cunard v. Hyde, 2 El. & El. 1;
Wilson v. Rankin, 6 Best & S. 208; L. R.
1 Q. B. 162; Kelly v. Home & Croton
Ins. Co., 97 Mass. 288.
[362]
LECT. XLVIII.]
* 264
OF PERSONAL PROPERTY.
of another in which the prohibition does not exist. This question
involves principles in politics and morals of momentous impor-
tance, and yet the jurists of England and France have differed
widely in opinion upon it. Valin and Emerigon consider the
insurance of goods, employed in a foreign smuggling or contra-
band trade, to be valid, provided the insurer was duly informed,
when he entered into the contract, of the nature of the trade.
The French Admiralty of Marseilles, in 1758, sustained and en-
forced a contract of insurance in favor of a French merchant who
attempted to export silks from Spain, contrary to the law of that
country, and whose vessel was, in consequence thereof, seized, and
the cargo confiscated. Emerigon justified the decision in France,
under the broad terms of the policy, which assumes the aversio
periculi, and by the usage of the commercial nations, who permit
their subjects to carry on, at their own risk, a smuggling trade,
contrary to the revenue laws of other countries. (a) Valin con-
curs in the opinion with Emerigon; (b) but their conclusions were
met and opposed by the manly sense and stern moral principles
of Pothier, who denied that it was permitted to Frenchmen to
carry on, in a foreign country, a contraband trade prohibited by
the laws of the foreign country. (c) They who engage in foreign
commerce are bound, by the law of nature and nations, to act in
obedience to the laws of the country in which they transact busi-
ness. Every sovereign possesses a rightful and supreme
*
jurisdiction within his own territory. He has a right to *264
regulate the commerce of his subjects in his discretion;
and so far as foreigners interfere with that commerce within his
dominion, they are equally bound with natives to obey the laws
which regulate it. If Frenchmen, trading in Spain, were not
bound by the Spanish laws, the subjects of Spain are bound by
them, and it is immoral for foreigners to seduce Spaniards into
an illicit trade. In every view, according to Pothier, the com-
merce was illicit, and contrary to good faith, and the insurance
of it was equally inadmissible, and created no valid obligation.
Emerigon, who was enlightened, as he admits, in the whole
course of his work, by the luminous mind of Pothier, as the latter
was by Valin, bows to the irresistible energy of the principles of
Pothier, and concedes, that the insurance of a foreign smuggling
(a) 1 Emerigon, 210-215; 2 Valin, 128, note.
(b) Com., des Assur. ii. 127.
(c) Traité des Ass. n. 58.
[363 ]
* 265
[PART V.
OF PERSONAL PROPERTY.
or contraband trade is rather tolerated than justified, and allowed
only because other nations have indulged in the same vicious
practice. (a)
* 265
*In England, the law of insurance is the same as it is in
France. A policy, unlawful by the law of the land where
it is made, is void everywhere; but an insurance upon a smug-
gling voyage, prohibited only by the law of the foreign country
where the ship has traded, or intends to trade, is good and valid,
on the principle, which has been adopted from a motive of sup-
posed policy, that one country does not take notice of the revenue
laws of another, nor hold itself bound to repudiate commercial
transactions which violate them. If the underwriter, therefore,
with full knowledge that he was covering a foreign smuggling
trade, makes the insurance, it is held to be a fair contract between
the parties, and he is bound by it. (a) The decisions of Lord
Mansfield on this subject must be considered as laying down an
exceedingly lax morality, particularly in the case of Planché v.
Fletcher, where an insurance upon a voyage in which it was
intended to defraud the revenue of a foreign state was held not
to be illegal, though fictitious papers were fabricated for the pur-
pose of facilitating the fraud. Lord Hardwicke had advanced
similar doctrines in Boucher v. Lawson, (b) when he declared,
that the unlawfulness, by the Portuguese laws, of exporting gold
from Portugal, made no difference in the action at London, for
in England it was a lawful trade. The statute of 19 Geo. II.
c. 37, was made even with a view to favor the smuggling of bullion
from the Spanish and Portuguese colonies. Lord Kenyon, in the
case of Waymell v. Reed, (c) seemed to have felt the pressure
of the unsound and immoral principle involved in the doctrine of
the English courts, for he purpose y waived the inquiry, whether
(a) It is admitted that such an insurance is not binding, if the underwriter was
not informed of the prohibited trade. He must know that he was insuring a contra-
band or smuggling trade. Roccus, de Ass. n. 21, says, that such an insurance is not
binding ignorante assecuratore; and Santerna, de Assecurat. pt. 4, n. 17, whom Roccus
cites, uses the same words. Roccus copied from him; and yet those qualifying ex-
pressions, and which are so material to the question, do not appear in Mr. Ingersoll's
translation of Roccus. I mention this without the least intended disparagement of
that very useful translation, the general accuracy of which is undoubted.
(a) Planché v. Fletcher, Doug. 251; Lever v. Fletcher, Hil. Vac. 1780, cited Park
on Insurance, 313, 6th ed.
(b) Cases Temp. Hard. [85, 89.]
(c) 5 T. R. 599.
[364]
LECT. XLVIII.]
* 266
OF PERSONAL PROPERTY.
or not it be immoral for a native of one country to enter into a
contract with the subject of another, to assist the latter in
defrauding the revenue * laws of his country. The Eng- * 266
lish writers on insurance have not concurred entirely in
opinion on the question; for while Millar, in his essay on the
Elements of Insurance, approves of the English rule, and Mr.
Justice Park admits it without any complaint, there are other
writers, equally intelligent, who most pointedly condemn the
doctrine. (a)
In this country, we have followed the English rule, as declared
by Lord Mansfield, to the full extent; and the underwriter is
liable for losses in consequence of violations of the trade laws
of foreign states, provided he was apprised of the intention, on
the part of the insured, to violate such laws, either by the terms
of the policy, or the standing regulations of the place to which
the vessel is insured, or the known usages of the trade. But
it is well understood and settled, that the underwriter is not
liable for any loss arising from foreign illicit trade, unless he
underwrote with full knowledge, that such a trade was the object
of the voyage. An insurance to a port does not include the
risk of going into the port in violation of law, unless the peril
of illicit entry at the port be also within the provision or con-
templation of the policy. All the authorities, foreign and do-
mestic, recognize this doctrine. If the trade be known by the
underwriter to be illicit, and he makes no exception of the risk
of illicit trade, it will be presumed he intended to assume it.
The implication would be very fair and just, and would supply
the place of more direct proof. (b) It is certainly matter of sur-
prise and regret, that in such countries as France, England, and
(a) Millar on Insurance, 23; Park on Insurance, 313; Condy's Marshall on Insur-
ance, i. 60; Chitty on Commercial Law, i. 82, 84.
102;
(6) Valin, ii. 127; Planché v. Fletcher, Doug. 251; Roccus, de Ass. not. 21;
Gardiner v. Smith, 1 Johns. Cas. 141; Richardson v. Maine Ins. Company, 6 Mass.
Parker v. Jones, 13 id. 173; Andrews v. Essex Fire and Marine Ins. Company,
3 Mason, 18, 20; Archibald v. M. Ins. Company, 3 Pick. 70. It has been usual in
American policies, for the assured to warrant "free from damage or loss in conse-
quence of seizure, or detention of the property for, or on account of, any illicit or pro-
hibited trade." But notwithstanding the warranty, the insurer is liable for loss by
seizure and confiscation for an illicit traffic barratrously carried on by the master and
crew at a foreign port, without the knowledge or privity of the owner. Suckley v.
Delafield, 2 Caines, 222; Dunham v. American Ins. Company, 2 Hall (N. Y.)
422,
[365]
* 268
[PART V.
OF PERSONAL PROPERTY.
the United States, distinguished for a correct and enlightened
administration of justice, smuggling voyages, made on purpose to
elude the laws, and seduce the subjects of foreign states,
*267 should be countenanced, * and even encouraged by the
courts of justice. The principle does no credit to the
commercial jurisprudence of the age. (a)
2. (Of contraband of war.) - The insurance by a neutral of
goods usually denominated contraband of war, is a valid contract,
for it is not deemed unlawful for a neutral to be engaged in a
contraband trade. It is a commercial adventure which no neutral
nation is bound to prohibit, and which only exposes the persons
engaged in it to the penalty of confiscation. But, on the other
hand, all articles contraband of war are subject to seizure in
transitu, by the belligerent cruisers, and so far it is a case of
imperfect right. (b) Mr. Phillips, in his Treatise on the Law
of Insurance, intimates, that the trading in articles contraband
of war is illegal by the law of nations, which forms part of the
municipal law of every state; and that the property cannot,
therefore, be the lawful subject of insurance, even in a neutral
state. (c) But though it may be difficult to answer this reason-
ing, it is certain that the established doctrine is not so rigorous.
Vattel (d) admits, that it is not an act in itself unlawful or hostile
for a neutral to carry on a contraband trade; and if the neutral
right to carry, and the belligerent right to seize and confiscate,
clash with, and reciprocally injure each other, it is a collision of
rights, which happens every day in war, and flows from the
* 268 effect of an inevitable *necessity. The Chief Justice of
Massachusetts, in Richardson v. Maine Insurance Com-
pany, (a) examined this subject with very accurate discrimina-
tion, and he considered that illicit voyages may be ranked in
several classes: (1) When the sovereign of the country to which
the ship belonged interdicted trade with a foreign country or
port; and in that case, the voyage, for the purpose of trade,
(a) In the case of La Jeune Eugenie, 2 Mason, 459, 460, a case that pleads the
cause of humanity with admirable eloquence, the rule supporting smuggling voyages
is admitted, but pretty plainly condemned.
(b) See i. 142, and the authorities there cited; and in addition thereto, see Seton
v. Low, 1 Johns. Cas. 1; Barker v. Blakes, 9 East, 283; Pond v. Smith, 4 Conn
297; Juhel v. Rhinelander, 2 Johns. Cas. 120, and affirmed on error, ib. 487.
(c) Phillips on Insurance, i. 101, 429, 2d ed.
(d) B. 3, c. 7, sec. 111.
(a) 6 Mass. 102.
[366]
LECT. XLVIII.]
* 269
OF PERSONAL PROPERTY.
would be illicit, and all insurances thereon void. (2) Where
the trade in question is prohibited by the trade laws of a foreign
state; and in that case, the voyage, in such a trade, may be the
subject of insurance in any state in which the trade is not pro-
hibited, for the municipal laws of one jurisdiction have no force
in another. (3) When neutrals transport to belligerents goods
contraband of war. The law of nations does not go to the extent
of rendering the neutral shipper of goods contraband of war an
offender against his own sovereign. While the neutral is engaged
in such a trade, he is withdrawn from the protection of his sov-
ereign, and his goods are liable to seizure and condemnation by
the powers at war. To this penalty the neutral must submit, for
the capture was lawful. The neutral may lawfully transport
contraband goods, subject to the qualification of being rightfully
liable to seizure by a belligerent power; but he is never punished
by his own sovereign for his contraband shipments. In like man-
ner the neutral may lawfully carry enemy's property, and the
belligerent may lawfully interrupt him and seize it. An insur
ance, then, by neutrals, in a neutral country, is valid, whether it
relates to an interloping trade in a foreign port, illicit lege loci,
or to a trade in transporting contraband goods, which is illicit
jure belli. But to render the insurance in either case valid, the
nature of the trade and of the goods should be disclosed
to him, or there should be just ground, * from the *269
circumstances of the trade or otherwise, to presume that
he was duly informed of the facts. (a) 1
(a) Parsons, C. J., in Richardson v. Maine Ins. Co., supra. In New York, it has
been held, that the underwriter is presumed to assume the risk of contraband of war,
without a previous disclosure of the nature of the cargo; and on the ground of that
1 Contraband. - The text is confirmed
by Hobbs v. Henning, 17 C. B. N. s. 791,
822. This case, which has been referred
to, ante, i. 85, n. 1, has been commented
on and explained, since that note was
printed, by Seymour v. London & Prov.
M. Ins. Co., 41 L. J. N. 8. C. P. 193, a
case, like the former, arising out of insur-
ance on the Peterhoff. It was held in
the later decision that there was a breach
of a warranty against contraband of war,
when the real intention was that the goods
should, in the course of the same transac-
tion, go on to the Confederate States, and
that the shippers should be paid by a
share of the profits to be obtained on de-
livery in the Confederate States.
Pardessus (5 Droit Comm. pl. 1492)
seems to think that if an insurance on con-
traband is made between neutral subjects,
it is immaterial where it is made, and that
it would be sustained in the neutral courts,
although entered into within the jurisdic-
tion of the belligerent. This seems to at-
tribute more importance to the nationality
of the parties and less to the lex loci con-
[367]
* 269
[PART V.
OF PERSONAL PROPERTY.
3. (Of seamen's wages.) The commercial ordinances have
generally prohibited the insurance of seamen's wages, and the
expediency of the prohibition arises from the consideration, that
if the title to wages did not depend upon the earning of freight
by the performance of the voyage, seamen would want one great
stimulus to exertion in times of difficulty and disaster. Though
there be no statute ordinance on the subject in the English law,
yet it is everywhere assumed as a settled principle in the marine
law of England, that seamen's wages are not insurable. (b) 2 But
the goods that seamen purchase abroad with their wages do not
fall within the reason, nor do wages already earned and due; and
yet if a seaman, at an intermediate port, by a refusal to proceed,
coerces the master to have his wages already earned insured, such
a policy has been held void in the French courts. (c)
presumption the contraband cargo need not be disclosed. Seton v. Low, 1 Johns.
Cas. 1; Juhel v. Rhinelander, 2 id. 120, 487. These cases were decided as early as
1799; but the principle does not appear to be sound, and the authority of the cases
may now be considered as overruled. Right and duty are correlative. As Sir Wm.
Scott observed, there are no conflicting rights between nations at peace. If trade in
contraband is unlawful by the laws of war, the neutral violates his duty if he engages
in it, and the belligerent exercises a lawful right when he seizes and confiscates the
articles. An insurance of a voyage laden with contraband articles is insurance on an
illegal voyage. Mr. Duer, in his Treatise on Insurance, i. 751-756, [lect. 8, §§ 23-25,]
exposes the error of Vattel, and of the American decisions referred to in the text, with
conclusive force. But though the better opinion on sound doctrine be, that such a trade
is unlawful for a neutral, yet it is the prevalent rule in continental Europe, that an
insurance made in a neutral country on articles contraband of war and destined to a
belligerent power, is permitted, and seems to be an exception to the general principle,
that an insurance in a neutral country on a trade prohibited by the law of nations, is
illegal and void. This point remains, however, to be settled in the jurisprudence of
England and of the United States, though it has received the sanction of the courts
of law in New York and Massachusetts, already alluded to. See Duer on Insurance,
i. 759-761, [lect. 8, § 27 et seq.]
(b) Magens on Insurance, 18; Lord Mansfield, in 3 Burr. 1912; Webster v. De
Tastet, 7 T. R. 157; Lord Stowell, in 1 Hagg. Adm. 239.
(c) Emerigon, i. 236.
tractus than is consistent with modern
views. See n. (a), above, and 265. The
conclusion certainly does not follow from
the fact that such a contract is valid if
made elsewhere than within the belliger-
ent jurisdiction. However, the same view
is taken in Arnould on M. Ins. 4th ed. 634
(pt. 2, ch. 5).
The later authorities to the effect that
agreements to break a blockade or carry
contraband by a neutral ship are valid
will be found, i. 142, n. 1.
2 Seamen's Wages.
Whether the gen-
eral rule would not be changed by a stat-
ute like 17 & 18 Vict. c. 104, § 183, making
the right to wages independent of the
earning of freight, is an open question.
Mr. Maclachlan, in his edition of Arnould
on Ins. pt. 1, ch. 2, thinks seamen should
be allowed to insure.
[368]
LECT. XLVIII.]
* 270
OF PERSONAL PROPERTY.
France and
4. (Of freight, profits, and commissions.) — In
Spain, freight not earned cannot be insured, and for the same
reason that seamen's wages are not insurable. Several of the
commercial tribunals wished, however, to adopt the practice of
the English, and give a greater extension to the liberty of insur-
ance. To this it was answered, that risk was of the essence
of the contract, and that there could be no real loss of * 270
that which is a nonentity, and had no certain existence, as
future contingent freight and profits. (a) By leaving the freight
to be earned uncovered, the master has stronger inducements to
be vigilant in the preservation of the ship and cargo. This is
the reason assigned by Cleirac; but Emerigon says, the true
ground of the prohibition is, the uncertainty of the existence of
any future freight. (b) In England and the United States, future,
or expected and contingent, and even dead freight, is held to be
an insurable interest. It is sufficient that the insured had an
interest in the subject-matter from which the freight is to arise.
It is necessary, however, that the ship should have actually begun
to earn freight, in order to entitle the insure [d] to recover, for,
until then, the risk on the freight does not commence. An
inchoate right to freight is an insurable interest. The risk
generally begins from the time the goods, or part of them, are
put on board; and if the ship has been let to freight under a
charter party of affreightment, the right to freight commences,
and is at risk so soon as the ship breaks ground;¹ and if the
(a) Boulay-Paty, iii. 482, 483.
(b) Ord. de la Mar. du Fret, art. 15; Code de Commerce, art. 347; Cleirac, sur le
Guidon, c. 15, art. 1; Emerigon, 224; Ord. of Bilboa, c. 22. But freight already
earned and due may be insured, for it has then ceased to be uncertain. Pardessus,
Cours de Droit Com. iii. n. 764, 765.
1
¹ Insurance on Freight. The text is ner, 17 Jur. 631; 20 Eng. L. & Eq. 24; 1
somewhat too narrow, see 311, n. 1.
The contract of insurance against loss
of freight is that the ship shall not be
prevented from earning it by the perils
insured against. If the owner is deprived
of it by other circumstances after it is
earned, or if he surrenders the cargo free
of freight prematurely, when he might
have completed the voyage and earned
the freight by a delivery of the cargo in
specie, the insurers will not be liable.
Scottish M. Ins. Co. of Glasgow v. Tur-
VOL. III.
24
Macq. H. L. 334; 4 H. L. C. 312; Allen v.
Mercantile M. Ins. Co., 44 N. Y. 437.
Compare Lord v. Neptune Ins. Co., 10
Gray, 109; Thwing v. Washington Ins.
Co., ib. 443. See also Parsons v. Manufac-
turers' Ins. Co., 16 Gray, 463; Buffalo
City Bank v. N. W. Ins. Co., 30 N. Y. 251.
The insurance covers freight paid in
advance if the insured owner is liable to
repay it. Ante, 226, n. 1; Benner v.
Equitable S. Ins. Co., 6 Allen, 222; Chase
v. Alliance Ins. Co., 9 Allen, 311. See
[369]
* 271
[PART V.
OF PERSONAL PROPERTY.
charterer omits to put on board the expected cargo, and the ship
performs the voyage in ballast, the right to freight is perfect.
But when the freight arises from the transportation of the goods,
it commences when the goods are put on board, and the policy
attaches to the extent of the goods on board, or ready to be
shipped. (c)
*271
*Profits are, equally with freight, a proper subject of
insurance. The right to insure expected or contingent
profits is settled in England, and has received repeated and elab-
orate confirmation. (a)¹ They are likewise, in this country, held
to be an insurable interest. (b) The consignee of goods consigned
to him for sale, has an insurable interest therein to their full
(c) Tonge v. Watts, Strange, 1251; Thompson v. Taylor, 6 T. R. 478; Forbes v.
Aspinall, 13 East, 323; Davidson v. Willasey, 1 Maule & S. 313; Riley v. Hartford
Ins. Company, 2 Conn. 368; Livingston v. Columbian Ins. Company, 3 Johns. 49;
Davy v. Hallett, 3 Caines, 16. Mr. Benecke, in his Treatise on the Principles of
Indemnity, 57, says, that the practice of insuring ship and freight separately, is
attended with many difficulties, and that the best, if not the only way, to obviate
them, and to put the owner, under all circumstances, in the same situation in which
he would have been in case of a safe arrival, would be, to insure the ship and freight
jointly, as one individual risk, in the same policy. In Adams v. Pennsylvania Ins. Com-
pany, 1 Rawle, 97, in the case of a valued policy on freight, there was specie on board
belonging to the owner of the ship, and the ship was lost before any cargo was pur-
chased, or contracted for, or procured; and it was held, that there was no claim upon
the insurer, for there was only a reasonable expectation of profit upon a cargo expected
to be procured and shipped. The contingency of expected freight was too remote.
(a) Grant v. Parkinson, cited in Park on Insurance, 354, 6th ed.; Le Cras v. Hughes,
ib. 358; Craufurd v. Hunter, 8 T. R. 13; Barclay v. Cousins, 2 East, 544; Henrick-
sen v. Margetson, ib. 549, note. Profits must be insured as profits. 3 Nev. & Mann.
819. An insurance on outfits in a whaling voyage does not terminate pro tanto with
their consumption or distribution, but attaches to the proceeds of the adventure.
Hancox v. Fishing Ins. Co., 3 Sumner, 132.
See, as to what is a total loss of freight,
post, 331, n. 1.
The rule causa proxima spectatur, post,
302, n. 1, is applied to this class of insur-
ances as well as others. Philpott v.
Swann, 11 C. B. N. s. 270.
(b) Loomis v. Shaw, 2 Johns. Cas. 36; Tom v. Smith, 3 Caines, 245; Abbott v.
Sebor, 3 Johns. Cas. 39; Fosdick v. Norwich Marine Ins. Company, 3 Day, 108.
Ogden v. N. Y. M. Ins. Co., 4 Bosw. 447;
Howard". Astor M. Ins. Co., 5 Bosw. 38.
And where, as in England, such advances
cannot be recovered back, the person mak-
ing the advances has an insurable interest.
Arnould, M. Ins. 4th ed. 57; Wilson v.
Martin, 11 Exch. 684; Hall v. Janson, 4
El. & Bl. 500; De Cuadra v. Swann, 16
C. B. N. s. 772; Currie v. Bombay Nat.
Ins. Co., L. R. 3 P. C. 72, 83. Compare
Katheman v. General M. Ins. Co., 12 La.
An. 35, with Minturn v. Warren Ins. Co.,
2 Allen, 86.
As to the suing and laboring clause, see
340, n. 1.
1 Post, 273, n. (b). As to the insurable
interest of consignees and the like, see
372, n. 1.
[370]
LECT. XLVIII.]
* 272
OF PERSONAL PROPERTY.
value, and he may insure them in his own name. (c) Insurances
on freights, profits, and commissions are required by the course
and interests of trade, and have been found to be greatly con-
ducive to its prosperity. But the doctrine that pervades the case [s]
is, that the insured must have a real interest in the subject matter
from which the profits are expected. There must be a substantial
basis for the hope or expectation of profits, in order to prevent
the policy from being considered a wager. Commissions are a
species of profit expected to arise from the sale of property con-
signed to an agent or supercargo, and they are an insurable
interest in England, and other countries, where insurances on
profits are legal. (d)
* 272
In France, assurances on profits are unlawful, and contrary to
the code, as they were also to the ordinances of the marine,
*and for the same reason that insurances on freight are
not allowed. The subject insured must have a physical
existence, and be a substance capable of being exposed to the
hazards of the sea. And yet there seems to be no more objection
to the insurance of a thing having only a potential existence,
than to the sale of it; and it is admitted, that the sale of the
proceeds of a future vintage, or of the next cast of the net by a
fisherman, is a good and valid sale. The hope or expectation of
profit, in these cases, is, says Pothier, (a) a moral entity suscep-
tible of value, and of being sold. But in Italy, Portugal, and the
Hanse Towns, they are held lawful; and Santerna, and after
him Straccha, and then Roccus, all show that the profits of goods
may lawfully be estimated in an insurance on goods. (b) The
English cases have required the insured to show, in an insurance
on profits, that some profit would have been produced upon the
adventure, if the peril to the property from which the profits were
to arise had not intervened. (c) I should apprehend that was
the proper course, though the cases in this country have not
explicitly declared that the party must show affirmatively that
the goods, if they had arrived safe, would have come to a profit-
(c) De Forest v. Fulton Ins. Company, 1 Hall, 84; Brisban v. Boyd, 4 Paige, 17;
Pouverin v. La. M. & F. Ins. Co., 4 Rob. (La.) 234.
(d) Benecke on Indemnity, 35.
(a) Traité du Con. de Vente, n. 5, 6.
(b) Roccus, n. 31, 96; Santerna, de Ass. et Spons. Merc. Tract. pt. 3, n. 40, 41;
Straccha, de Ass. Gloss. 6, n. 1; Ord. of Hamburg, 2 Magens, 213; Benecke 85.
(c) Hodgson v. Glover, 6 East, 316.
[371]
* 273
[PART V.
OF PERSONAL PROPERTY.
able market, or that the state of the foreign market was such as
to have afforded, as in Grant v. Parkinson, a very strong expecta-
tion of profit. Such an expectation seems to have been assumed
in the American cases.
5. (Of open and valued policies.) — An open policy is one in
which the amount of interest is not fixed by the policy, but is
left to be ascertained by the insured, in case a loss should happen.
A valued policy is where a value has been set on the ship
*273 or goods insured, * and inserted in the policy in the nature
of liquidated damages.
If a policy on profits be an open one, there must be proof given
of the amount of the profits that would probably have been made.
if the loss had not happened; there would not otherwise be any
guide to the jury, in the computation of the loss. In Mumford v.
Hallett, (a) it was supposed that every policy on profits must, of
necessity, be a valued one, because, without the valuation, it
would be extremely difficult to ascertain the amount to be recov-
ered. A loss on the profits must be regulated by the loss of the
property from which the profits were to arise. (b) Where the
ship and cargo were lost on the voyage, the whole amount of
the valued profits was held recoverable, without showing that
there would have been any ultimate profit if the loss hd not
happened. (c)
The value in the policy is, or ought to be, the real value of
the ship, or the prime cost of the goods, including the incidental
expenses of them previous to the shipment, and the premium of
insurance. (d) It means the amount of the insurable interest;
and if the insured has some interest at risk, and there is no fraud,
the valuation in the policy is conclusive between the parties; for
they have, by agreement, settled the value, and not left it open
to future inquiry and dispute as between themselves. (e) If the
valuation should, however, be grossly enormous, as in the case
(a) 1 Johns. 433.
(b) Abbott v. Sebor, 3 Johns. Cas. 39. [M'Swiney v. Royal Exch. Assurance, 14
Q. B. 634; Halhead v. Young, 6 El. & Bl. 312; Smith v. Reynolds, 1 Hurlst. & N.
221; Wilson v. Jones, L. R. 2 Exch. 139, 146; Chope v. Reynolds, 5 C. B. N. s. 642.
Cases which carry out the doctrine of the text, the last with some reluctance.]
(c) Patapsco Ins. Company v. Coulter, 3 Peters, 222.
(d) Pothier, des Ass. n. 43.
(e) Shawe v. Felton, 2 East, 109; Lord Abinger, in Young v. Turing, 2 Mann. &
Gr. 593.
[372]
LECT. XLVIII.] OF PERSONAL PROPERTY.
* 274
}
put by Lord Mansfield, where cargo was valued at £2,000, and
the insured had only the value of a cable on board, there is no
doubt it would raise a strong presumption of fraud; and either
the valuation or the policy would be set aside. A valuation,
fraudulent in fact, as respects the insurer, or so excessive as to
raise a necessary presumption of fraud, entirely vacates the policy
and discharges the insurer; and the English, American, and
French law of insurance contain the same general doctrine on
the subject. (ƒ)
* There are cases which suggest that the valuation is *274
applicable only to cases of total loss, and does not apply
to average losses. (a) But the better opinion of the text writers
is, that in settling all losses, total or partial, the valuation of the
property in the policy is to be considered as correct in the adjust-
ment of the loss, and the true measure and basis of the valuation
according to the contract of indemnity.¹ The adjustment is to
(ƒ) Lord Mansfield, in Lewis v. Rucker, 2 Burr. 1171; Shawe v. Felton, 2 East,
109; Feise v. Aguilar, 3 Taunt. 506; Haigh v. De la Cour, 3 Camp. 319; Lord Ellen-
borough, in Forbes v. Aspinall, 13 East, 323; Aubert v. Jacobs, Wightw. 118; Wol-
cott v. Eagle Ins. Company, 4 Pick. 429; Marine Insurance Company v. Hodgson, 6
Cranch, 206; [Hersey v. Merrimack Cy. M. F. Ins. Co., 7 Foster (27 N. H.), 149;
Protection Ins. Co. v. Hall, 15 B. Mon. 411;] Condy's Marshall, 290, 291; 1 Phillips
on Insurance, 305–313, 1st ed.; Valin's Comm. ii. 147; Pothier, des Ass. n. 151, 159;
Boulay-Paty, iii. 397, 398. M. Delvincourt, in his Institutes de Droit Comm. ii. 345,
346, contends, that though the valuation be made without fraud, if there be palpable
evidence of mistake in the valuation, the policy may be opened; and Valin, Pothier,
and Emerigon are of that opinion. But Boulay-Paty thinks that the excess in the
valuation, by mistake, is not sufficient to open the policy; and there must be proof of
actual fraud going to the destruction of the contract. Cours de Droit Comm. iii. 401.
The Ordinance of the Marine, h. t., art. 8, and the Code de Commerce, art. 336, make
fraud the basis of opening the valuation. Le Guidon, c. 2, art. 13, and Valin, Comm.
ii. 52, consider an over valuation of a moiety, or one third, or even of one fourth, to
be evidence of fraud; but other text writers justly conclude that every case will depend
upon its own circumstances, without being governed by any such rule. Mr. Benecke
has referred to the various and discordant provisions of the principal commercial
nations of Europe, concerning valuations, and they are generally held to be conclusive,
unless shown to be fraudulent. Benecke on Indemnity, 151, 152.
(a) Lord Mansfield, in Le Cras v. Hughes, cited in 2 East, 113; Sewall, J., 7 Mass.
370; Allegre v. Insurance Company, 6 Harr. & J. 408. The New York Board of
1 Valued Policies. The text is con-
The text is con-
firmed by Irving v. Manning, 1 H. L. C.
287; Barker v. Janson, L. R. 3 C. P. 303;
Phoenix Ins. Co. v. McLoon, 100 Mass.
the parties in respect of all rights and ob-
ligations which arise upon the policy.
Thus, if the insured has received pay-
ments in respect of the loss on other policies
475.
expressing a higher value, he can only
The valuation is conclusive between recover the excess of the defendant's
[373]
* 275
[PART V.
OF PERSONAL PROPERTY.
be the same as if the goods had actually cost, or the ship and
freight were actually worth, the sum at which they were val-
ued. (b) Mr. Benecke concludes, from a consideration of the
cases, that the opinion, that in a case of a partial loss the
*275 valuation ought to be disregarded, *is as destitute of
authority as it is void of justice and sound reason.
A valuation does not preclude the inquiry, whether the whole
interest valued has been at risk. If the valuation of freight of a
whole cargo be made, the underwriter will not be liable beyond
the extent of the freight of the goods put on board. (a) This
doctrine applies equally to an insurance upon cargo; and the
insured, on a valued policy on cargo, will not recover beyond the
interest he had at risk. There must be a total loss of the whole
subject matter of insurance to which the valuation applied,
whether the insurance was on goods or upon freight. The val-
uation fixes the price of the whole subject at risk, but it does
not admit that the property, on which the valuation was made,
was on board the vessel. (b) If, therefore, certain articles be
Underwriters, May 20, 1837, resolved that in cases of a technica total loss of a vessel,
the only basis of ascertaining her value shall be her valuation in the policy, and if not
so valued, her actual value at the time of the inception of the risk at the port to which
she belonged.
(b) Stevens & Benecke on Average and Adjustment of Losses in Marine Insurance,
Boston, 1833, 48-53; Stevens on Average, pt. 2, 168; Phillips on Insurance, i.
313, 315; Benecke on Indemnity, 152, 153, 157. In the case of Allegre v. Insurance
Company, the court considered it to be an open and unsettled question, whether, in
the case of a partial loss on a valued policy, the insured was to be indemnified accord.
ing to the valuation, or the actual value of the subject at the port of shipment, and
they omitted to express any opinion on the point, though it had been warmly con-
tested in the argument. Mr. Benecke says that the question, whether a valuation
should be opened in cases of partial loss, had never occurred in the English courts.
(a) Forbes v. Aspinall, 13 East, 323.
(b) Parker, C. J., Haven v. Gray, 12 Mass. 71; Wolcott v. Eagle Ins. Company, 4
Pick. 429; Brooke v. Louis. Ins. Company, 4 Martin, N. s. 640, 681. If much less
property was shipped than was expected to be on board, the assured, though it be a
valuation over the amount of the previous
payments. Bruce v. Jones, 1 Hurlst. &
Colt. 769. Compare Stephenson v. Pis-
cataqua F. & M. Ins. Co., 54 Me. 55.
(But this would not apply when the policy
in question is against a different risk from
the other. Lidgett v. Secretan, L. R. 6
C. P. 616; post, 281, n. 1.) On this prin-
ciple, underwriters who had raid as for a
total loss, were held entitled to the whole
amount afterwards recovered by the own-
ers for a collision which caused the loss,
notwithstanding the fact that the valua-
tion in the policy was much less than the
actual worth of the ship. North of Eng-
land Ins. Ass. v. Armstrong, L. R. 5 Q.
B. 244.
[374]
LECT. XLVIII.]
* 276
OF PERSONAL PROPERTY.
comprised in a valuation, and part are safely landed before the
ship is lost, the valuation must be opened, and the claim of the
insured reduced in the proportion to which the articles actually
lost bore to the valuation of the whole at the commencement of
the risk. (c)
* 276
6. (Of wager policies.) — A mere hope or expectation, with-
out some interest in the subject matter, is a wager policy, and
all such marine policies are, by statute in England, declared
void. (d) But the English courts have refined greatly, in con-
sidering what is an interest sufficient to sustain a policy, and to
place it out of the reach of the prohibition. If a person be
directly liable to loss in the happening of any particular
event, as if he be an insurer, or * be answerable as owner
for the negligence of the master, he has an insurable
interest. (a) A creditor, to whom property is assigned as col-
lateral security, has an insurable interest to the amount of his
debt. (b) In the case of Lucena v. Craufurd, (c) the distinction
between a reasonable expectation of gain in the shape of freight,
commissions, or profits, founded on some interest in the subject
matter which was to produce them, and a mere shadowy hope or
expectation, was fully and very ably investigated in the Court of
Common Pleas, and in the House of Lords, and great talents were
displayed and exhausted upon that litigated point. The decision
was, that commissions to become due to public agents, and all
reasonable expectation of profits, were insurable interests. The
interest need not be a property in the subject insured. It is suffi-
cient if a loss of the subject would bring upon the insured a pecu-
niary loss, or intercept a profit. Interest does not necessarily
imply a right to, or property in, the subject insured. It may
consist in having some relation to, or concern in, the subject of
the insurance, and which relation or concern may be so affected
valued policy, can recover only, in case of loss, a proportion pro rata. Alsop v. The
Comm. Ins. Company, 1 Sumner, 451. [Tobin v. Harford, 34 L. J. n. s. C. P. 37 ;
17 C. B. N. s. 528; 13 C. B. n. s. 791; Denoon v. Home & Col. Ass. Co., L. R. 7
C. P. 341; Fay v. Alliance Ins. Co., 16 Gray, 455.] ·
(c) Benecke on Indemnity, 146.
(d) 19 Geo. II. c. 37.
(a) Walker v. Maitland, 5 B. & Ald. 171.
(6) Wells v. Philadelphia Ins. Company, 9 Serg. & R. 103. A lien, or an interest
in the nature of a lien, is an insurable interest. Hancox v. Fishing Ins. Company, 8
Sumner, 132.
(c) 3 Bos. & P. 75; 5 id. 269.
[375]
* 277
[PART V.
OF PERSONAL PROPERTY.
by the peril as to produce damage. Where a person is so circum-
stanced, he is interested in the safety of the thing, for he receives
a benefit from its existence, and a prejudice from its destruction,
and that interest is, in the view of the English law, a lawful
subject of insurance. (d) ¹
It was admitted by the judges of the Court of K. B., in Crau-
furd v. Hunter, (e) that, at common law, prior to the statute of
Geo. II., wager policies were not illegal; and the courts have
been very much embarrassed in their endeavors to draw the line
of distinction between wagers that were and were not
* 277 admissible in courts of justice. The law has been * thought
to descend from its dignity when it lends its aid to recover
the fruits of an idle and frivolous wager. In Good v. Elliott (a)
Mr. J. Buller made a vigorous but unsuccessful stand, against
suits upon wagers in any case; and nothing could have been
more impertinent than the wager in that case, which was, whether
one third person had purchased a wagon of another. Many of
the cases stated by Mr. J. Buller were of a nature to draw into
discussion, and unnecessarily affect the character or feelings of
third persons; and to sustain suits upon such wanton wagers
would be a disgrace to any administration of justice. The case
of Jones v. Randall (b) went quite far enough, when it sustained
an action upon a wager, whether a decree in Chancery would be
reversed on appeal to the House of Lords. If wagers are to be
allowed in any case, as valid ground for a suit, the betting on
the return of a ship, in the shape of a policy without interest, is
as harmless as any that could be devised. In Egerton v. Furze-
man (c) it was ruled in the English courts, that a wager on a
battle between two dogs was illegal, and not the ground of action.
In New York, the courts had formerly assumed it to be a clear
(d) Lawrence, J., in 5 Bos. & P. 302, 303, 304; Hughes on Insurance, 30. An
equitable, as well as a legal interest, and an interest held under an executory contract,
are valid subjects of insurance. Columbian Insurance Company v. Lawrence, 2
Peters, 25.
(e) 8 T. R. 13.
(b) Cowp. 37.
1 Although he has not any title in, or
lien upon, or possession of the property
itself. Eastern R.R. Co. v. Relief Fire
Ins. Co., 98 Mass. 420, 423; Wilson v.
Jones, L. R. 2 Ex. 139, 150; Insurance
(a) 3 T. R. 693.
(c) 1 Carr. & P. 613.
Co. v. Chase, 5 Wall. 509, 513. For some
qualifications, see 372, n. 1, where cases
as to sufficiency of interest will be found.
See Durrant v. Friend, 5 De G. & Sm.
343; 11 Eng. L. & Eq. 2.
[376]
LECT. XLVIII.]
* 278
OF PERSONAL PROPERTY.
and settled principle of the common law, that a policy, in which
the insured had no interest, and which was, in fact, nothing more
than a wager or bet between the parties to the contract, whether
such a voyage would be performed, or such a ship arrive safe, was
a valid contract. (d) It was only required that the wager should
concern an innocent transaction, and not be contrary to
good morals or sound policy. (e) * But now, by statute, (a)
* 278
all wagers, bets, or stakes, made to depend upon any lot,
chance, casualty, or unknown or contingent event whatever, are
declared to be unlawful, with the exception of contracts on bot-
tomry or respondentia, and all insurances made in good faith for
the security or indemnity of the party insured. The statute has
effectually destroyed wager policies; for they are not within the
exception. In Massachusetts, the Supreme Court expressed a
strong opinion against the validity of a wager policy, and the doc-
trine there is, that all gaming is unlawful, according to the gen-
eral policy and laws of the Commonwealth. In Pennsylvania,
every species of gambling policy, and all actions upon a wager or
bet, are reprobated, and they follow the principles, while they do
not acknowledge the authority of the English statute in the reign
of George II. (b) Wager policies, without any real interests to
support them, are condemned also by positive ordinances in
France, and in most of the commercial nations of Europe. (c)
(d) Juhel v. Church, 2 Johns. Cas. 333; Abbott v. Sebor, 3 id. 39; Clendining v.
Church, 3 Caines, 141; Buchanan v. Ocean Ins. Company, 6 Cowen, 318. [Post, 369,
n. 1.]
(e) Bunn v. Riker, 4 Johns. 426; Mount v. Waites, 7 id. 434; Campbell v. Richard-
son, 10 id. 496.
() New York Revised Statutes, i. 662, secs. 8, 9, 10.
(b) Amory v. Gilman, 2 Mass. 1; Babcock v. Thompson, 3 Pick. 446; Prichet v.
Insurance Co. of North America, 3 Yeates, 464; Craig v. Murgatroyd, 4 id. 168;
Adams v. Pennsylvania Ins. Company, 1 Rawle, 107. In Vermont it is held, that no
suit will lie to recover property won of another by a bet or wager. Collamer v Day,
2 Vt. 144. Wager contracts, or bets on elections, are void. Lloyd v. Leisenring, 7
Watts, 294. No action upon any wager or bet can be sustained. Edgell v. M'Laugh-
lin, 6 Wharton, 176. [Post, 369, n. 1.]
(c) Ord. de la Mar. liv. 3, tit. 6, Des Ass. art. 22; 1 Emerigon, 264. In Scotland
the rule of the civil law relative to sponsiones ludicra was early adopted as common
law, and no wager or gaming contract will support an action. 1 Bell's Comm. 300;
Code de Commerce, art. 357; Ord. of Genoa, of Middleburg, of Rotterdam, of Am-
sterdam, of Hamburg, and Stockholm, collected in 2 Magens, 65, 68, 88, 132, 229, 257 ·
Roccus, de Assecur. n. 88. The latter refers to a decision of the Rota of Genoa, in
which the principle is declared, si non adest risicum, assecuratio non valet; nam non adest
materia in qua forma posset fundari. Decisiones Rotæ Genuæ, 55, n. 9.
[377]
* 279
[PART V.
OF PERSONAL PROPERTY.
(4) Of Reassurance and Double Insurance. — After an insur-
ance has been made, the insurer may have the entire sum
*279 he hath insured, reassured to him by some other *insurer.
The object of this is indemnity against his own act; and
if he gives a less premium for the reassurance, all his gain is the
difference between what he receives as a premium for the origi-
nal insurance and what he gives for the indemnity against his
own policy. If he give as much for reassurance, he gains nothing
by the transaction; and if he gives a higher premium, as insurers
will sometimes do to cover a dangerous risk, he becomes a loser
by his original insurance. These reassurances are prohibited in
England, except in special cases, by the statute of 19 Geo. II.
c. 37; and also by every country in Europe, but they are allowed
with us. (a) The contract of reassurance is totally distinct from,
and unconnected with, the primitive insurance; and the reassured
is obliged to prove the loading and value of the goods, and the
existence and extent of the loss, in the same manner as if he were
the original insured. (b)¹ He need not abandon to the reinsurer,
as soon as the first insured has abandoned to him, for he has no
connection with the first insurance. If he proves the original
claim against him to be valid, when he resorts over to the rein-
surer, he makes out a case for indemnity. (c)
1
These reassurances are allowed by the French ordinances, (d)
and the first insurer can reassure to the same amount; but the
better opinion is, that he cannot insure the premium due him for
the first insurance. Valin, Pothier, M. Estrangin, the commen-
tator upon Pothier, and Boulay-Paty, are all opposed to Emerigon
on this point, and they certainly bear down his opinion. (e)
(a) Hastie v. De Peyster, 3 Caines, 190; Merry v. Prince, 2 Mass. 176.
(b) Pothier, h. t., n. 163; Emerigon, i. 247, 250.
(c) Hastie v. De Peyster, ub. sup. When the loss has happened, and been duly
ascertained, the reassurer must pay to the first insurer the amount of the loss within
the policy, notwithstanding the first insurer has become insolvent, and can pay only
in part. He must pay the entire sum reassured, and has no concern with any arrange.
ment between the first insurer and his creditors. 1 Marshall on Insurance, 143;
Emerigon, i. 248. He is entitled to make the same defence as the original insurer.
N. Y. State Marine Ins. Co. v. Protection Ins. Co., 1 Story, 458.
(d) Ord. de la Mar. des Assurances, art. 20; Code de Commerce, art. 342.
(e) Valin, h. t.; Pothier, h. t., n. 35; 1 Emerigon, 249; 3 Boulay-Paty, 432.
1 Eagle Ins. Co. v. Lafayette Ins. Co.,
9 Ind. 443. (Reinsurance is now lawful
in England. St. 30 & 31 Vict. c. 23, § 4;
Gledstanes v. Royal Exchange Ass. Co.
5 Best & Sm. 797.)
[ 378]
LECT. XLVIII.]
281
OF PERSONAL PROPERTY.
The insured may likewise cause to be insured the sol-
vency * of the first insurer; but this will not often be the
* 280
case, for it lessens greatly the profits of the voyage, by
multiplying the charges upon it; and Marshall says, it has never
happened in England; for a double insurance answers better the
end proposed. (a) The second insurer does not become strictly a
surety for the first insurer. It is a totally distinct contract, with-
out any participation in the other, and he is not bound to render
any service to the first one. It is a conditional obligation of a
special kind. (b) Valin and Pothier contend, that the second
insurer of the solvency of the first one becomes a surety for the
first, and is entitled to oppose to the claim the exception of dis-
cussion which is to require that the first insurer should, at his
expense, be first prosecuted to judgment and execution; but
Emerigon and Boulay-Paty are not of that opinion, though they
admit that the first insurer must be put legally in default after a
legal demand. (c)
A double insurance is where the insured makes two insurances
on the same risk and the same interest. But the law will not
allow him to receive a double satisfaction in case of loss, though
he may sue on both policies. The underwriters on the different
policies are bound to contribute ratably towards the loss. (d)
They pay according to the rate of their subscriptions, without
regard to the order of time in which the policies were
made; and if the insured recovers * his whole loss from
one set of underwriters, they will be entitled to their
action against the other insurers, on the
for a ratable proportion of the loss. (a)
(a) Condy's Marshall, 145.
*
281
same interest and risk,
The doctrine of con-
(b) Santerna, de Ass. pt. 3, n. 55, 56, 57, 58; Straccha de Ass. Introduction, n. 48,
49, who cites and adopts the opinion of Santerna; and both of them refer back to the
civil law, and to the doctors who had commented upon it; and they, in their turn, are
quoted and followed by Emerigon, i. 253.
(c) Pothier, Traité des Ass. n. 38; Valin, ii. 66; Le Guidon, c. 2, art. 20; 1 Emeri-
gon, 259; Boulay-Paty, iii. 440, 442.
(a) Rogers v. Davis, and Davis v. Gilbert, decided at N. P., by Lord Mansfield;
Park on Insurance, 374, 375, 6th ed.; Lucas v. Jefferson Ins. Co., 6 Cowen, 635.
(a) Newby v. Reed, 1 Wm. Bl. 416; Millaudon v. Western Marine & Fire Ins. Com-
pany, 9 La. 27.
1 Double Insurance. See 376, n. 1; It is not double insurance when the
Cromie v. Kentucky & Louisville M. Ins. second policy applies to other property as
Co., 15 B. Mon. 432; Morrell v. Irving F. well as that first insured; Sloat v. Royal
Ins. Co., 33 N. Y. 429.
Ins. Co., 49 Penn. St. 14; (citing Howard
[379]
281
[PART V.
OF PERSONAL PROPERTY.
tribution applies very equitably to such a case. It was so declared
by the Circuit Court of the United States at Philadelphia, in
Thurston v. Koch; (b) and though in most countries of Europe
the first policy in the order of time is to be exhausted before the
second operates, yet the rule requiring the insurers in each policy
to bear a ratable share of the loss was declared, in that case, to
be founded in equity, and in sound principles of commercial
policy. The French rule is, that if there exist several contracts
of insurance on the same interest and risk, and the first policy
covers the whole value of the subject, it bears the whole loss,
and the subsequent insurers are discharged on returning all but
half per cent premium. But if it does not cover the entire value,
the subsequent policies, in case of loss, are bound only to make
up the part uncovered. (c) The ancient rule in England was
according to the French ordinance, (d) and it has been deemed
more simple and convenient. Merchants frequently prefer it, and
it is perfectly consonant to a strict construction of the contract
with the first underwriter.
Policies have sometimes a clause introduced into them to pre-
vent the rule of contribution, and to make the insurers responsi-
ble according to the order of date of their respective policies.
Where two policies were dated upon the same day, it was held,
that prior in date was intended to be equivalent to prior in time,
(b) 4 Dallas, 348; App. p. 32.
(c) Code de Commerce, art. 359.
(d) Malynes's Lex Mercatoria, 112; The African Company v. Bull, 1 Show. 132;
Gilbert, 232.
Ins. Co. of N. Y. v. Scribner, 5 Hill, 298;)
Baltimore F. Ins. Co. v. Loney, 20 Md.
20; nor when different persons, such as
mortgagee and mortgagor, insure their
respective interests in the same thing;
Woodbury Savings Bank v. Charter Oak
Ins. Co., 31 Conn. 517; Fox v. Phenix
F. Ins. Co., 52 Me. 333; post, 371, n. (e);
nor when the second policy is against a
different risk from that covered by the
first; Lidgett v. Secretan, L. R. 6 C. P.
€16; otherwise of a subsequent insur-
ance by two of three owners who were all
insured in the earlier policy. Mussey v.
Atlas Mut. Ins. Co., 14 N. Y. 79.
insured shall not recover more than the
proportion which the amount insured by
the policy bears to the whole amount in-
sured upon the property, in which case, if a
company pays more than its proportion,
it is not entitled to contribution from other
companies which have insured on similar
policies. Fitzsimmons v. City F. Ins. Co.
of N. H., 18 Wisc. 234. Inf. 282, n. (b).
As to valued policies, see 274, n. 1;
Bruce v. Jones, 1 H. & C. 769; Lidgett v
Secretan, L. R. 6 C. P. 616.
As to policies issued at the same time,
see Washington F. Ins. Co. v. Davison,
30 Md. 91; Manhattan Ins. Co. v. Stein,
It is not uncommon to provide that the 5 Bush (Ky.), 652.
[ 380 ]
LECT. XLVIII.]
* 282
OF PERSONAL PROPERTY.
and that the policy first in time, in point of fact, was to bear the
loss. (e)
*
As a general rule of construction, and independent of *282
usage, the first policy, under such a clause as that to which
I have referred, would have to bear the whole loss, whether par-
tial or total, to the extent of the policy. (a) But the usage of
the companies in New York is understood to be, that partial
losses are to be apportioned between the policies, without regard
to dates, provided the cargo on board was large enough to have
attached both policies to it. This is the French rule. In France,
if there be goods on board to the amount of both policies, and a
partial loss ensues, the insurers contribute ratably in proportion
to their subscriptions. (b)
(5) Of Representation and Warranty. 1. (Of representa-
tion.) — All the writers who have treated of the contract of insur-
ance agree, that it is eminently a contract of good faith, which
is peculiarly enjoined upon the insured, as he possesses an entire
knowledge of all those circumstances which combine to form the
contract, and is bound to communicate the facts and objects
which are to determine the will of the insurer. A representation
relates to facts or information extrinsic to the policy, and may
be made by parol or in writing; and though it be not usually
(e) Brown v. Hartford Ins. Company, 3 Day, 58. The same point was afterwards
so ruled in Potter v. Marine Ins. Company, 2 Mason, 475. The clause against con-
tribution runs thus: "It is further agreed, that if the assured shall have made any
other assurance upon the premises, prior in date to this policy, the assurers shall be
answerable only for so much as the amount of such prior insurance may be deficient."
The American clause, as it has been denominated, is stated in the case of the Ameri-
can Insurance Company v. Griswold, 14 Wend. 399, to be, that "in case of any sub-
sequent insurance, the insurer shall, nevertheless, be answerable for the full extent
of the sum subscribed by him, without right to claim contribution from subsequent
assurers." The one form is adapted to the first policy, and the other form to the last
policy. This clause was held, in the above case, to bar the claim for contribution from
subsequent assurers upon the same cargo, although there was aliment for all policies
at the time of subscription.
(a) Columbian Ins. Company v. Lynch, 11 Johns. 233; Rogers v. Davis, Park on
Insurance, 374.
(b) Ord. de la Mar. des Ass. art. 25; 2 Valin, 73, 74; Code de Commerce, n. 360;
Pothier, h. t., n. 77. The American policies generally contain the clause, that “in
case of any other insurance upon the property thereby insured, whether prior or sub-
sequent to the date of this policy, the insured shall not, in case of loss or damage, be
entitled to demand or recover upon this policy any greater portion of the loss or dam-
age sustained, than the amount hereby insured shall bear to the whole amount insured
ɔn the property."
[381]
* 282
[PART V.
OF PERSONAL PROPERTY.
inserted in the policy, it may be inserted, and yet not require, in
that case, the severe construction given to a warranty, provided
the statement relates not to facts, but to the information, expec-
tation, or belief of the party, or provided the parties declare, at
the same time, their intention that the statement should be taken
to be a representation merely. (c)¹ A positive misrepresentation
1
(c) Rice v. New England Ins. Company, 4 Pick. 439; Lothian v. Henderson, 3 Bos.
& P. 499; Duer's Lecture on the Law of Representations in Marine Insurance, 44
ed. New York, 1844.
1 Representation and Warranty. — In
Behn v. Burness, 3 Best & Sm. 751, 753,
et seq., it is said that a representation is
sometimes contained in the written in-
strument, but is not an integral part of
the contract, and consequently the con-
tract is not broken, though the represen-
tation proves to be untrue; nor (with the
exception of the case of policies of insur-
ance, at all events, marine policies, which
stand on a peculiar anomalous footing),
is such untruth any cause of action, nor
has it any efficacy whatever, unless the
representation was made fraudulently,
either by reason of its being made with
a knowledge of its untruth, or by reason
of its being made dishonestly, with a
reckless ignorance whether it was true or
untrue. It is further said to be a question
of construction for the court whether a
descriptive statement in a written instru-
ment is a mere representation or a sub-
stantive part of the contract. See, also,
2 Duer on Ins. lect. 14, § 2; Clark v.
Manufacturers' Ins. Co., 2 Woodb. & M.
472, 487; Carr v. Montefiore, 5 Best &
Sm. 408, 430. These cases do not seem
to agree with Mr. Arnould's view, 4th ed.
477, 589, that in marine policies the main
distinction in form between a representa-
tion and a warranty is that the former is
not introduced into the policy, and the
latter always is, except when implied by
law. See Hartford Prot. Ins. Co. v.
Harmer, 2 Ohio St. 452, 464; Odiorne v.
N. E. M. Ins. Co., 101 Mass. 551, 554.
In a life insurance case it is said that
representations to insurers, before or at
the time of making the contract, are a
presentation of the elements upon which
to estimate the risk to be assumed. They
are the basis of the contract, and if wrongly
presented in any respect material to the
risk, the policy issued thereupon will
not take effect. To enforce it would be
to apply the insurance to a risk that was
never presented. Campbell v. N. E. M.
L. Ins. Co., 98 Mass. 381, 390. It would
seem that misrepresentations which go
to the essence of the contract make it
void, and not merely voidable, just as a
difference in kind between the thing
contracted for and that delivered avoid
a sale. Clark v. New England Mut. F.
Ins. Co., 6 Cush. 342; Hardy v. Union
Mut. Ins. Co., 4 Allen, 217. It is obvious
that such representations may be made
warranties by being incorporated into
the policy as part of the contract. Post,
376, n. 1; 98 Mass. 391; Eddy Street Iron
Foundry v. Hampden S. & M. F. Ins.
Co., 1 Cliff. 300; Miller v. Mut. Benefit
Life Ins. Co., 31 Iowa, 216, 227; Bobbitt
v. Liverpool & L. & G. Ins. Co., 66 N. C.
70; Williams v. N. E. Mut. Ins. Co., 31
Me. 219; Garcelon v. Hampden Fire Ins.
Co., 50 Me. 580; Ripley v. Ætna Ins. Co.,
30 N. Y. 136; Chaffee v. Cattaraugus
County Mut. Ins. Co., 18 N. Y. 376;
Gahagan v. Union Ins. Co., 43 N. H. 176;
Sayles v. North Western Ins. Co., 2 Curt.
610; Sillem v. Thornton, 3 El. & Bl. 868.
A very usual course for obtaining some
kinds of insurance is to make an applica-
[382]
LECT. XLVIII.] OF PERSONAL PROPERTY.
* 282
to the underwriter, or concealment of a fact material in relation to
the risk, or material in the mind and judgment of the insurer, will
tion on a form provided by the insurers, point mentioned in note (a), post, 284, it
and containing questions which the appli- has been held that a representation can
cant answers in writing. A policy is only relate to present or past facts. A
afterwards issued, and refers to and in- representation, so called, that an event
corporates the application as part of the will come to pass in the future, must be
contract, so that the answers become shown to be part of the contract to be
warranties. Of course there is no doubt material. Kimball v. Etna Ins. Co., 9
that such a reference and incorporation Allen, 540; Bilbrough v. Metropolis Ins.
is binding on the assured. Ripley v. Co., 2 Comst. 210, 221; New York v.
Ætna Ins. Co., and other cases cited Brooklyn Fire Ins. Co., 4 Keyes, 465. It
supra. In doubtful cases statements are does not seem inconsistent with this view
construed as representations rather than to hold that when an intention is expressly
warranties; Wilson v. Conway F. Ins. stated in a policy, to do or omit something
Co., 4 R. I. 141; Garcelon v. Hampden F. material to the risk, it is to be construed
Ins. Co., sup. ; and although when a war- as a contract to do or omit it. Bilbrough
ranty is made, the effect of a breach will v. Metropolis Ins. Co., 5 Duer, 587, 593
not be changed by the fact that the in- (a case favoring the views of Mr. Justice
surer's agent knew it to be false, Chase Duer). But see Herrick v. Union Mut.
v. Hamilton Ins. Co., 20 N. Y. 52, 56; Fire Ins. Co., 48 Me. 558. But an as-
Tebbetts v. Hamilton Mut. Ins. Co., 3 sertion of the existence of a present in-
Allen, 569, the courts are strongly in- tention is primarily a representation as
clined to favor the assured, when, as is to a present state of facts, and when it
usually the case in some kinds of insur- cannot be construed as containing a con-
ance, applications are filled out by local tract by implication, or is not binding as
agents of the company. It is thought to a contract, for instance, when it is made
be unjust and impolitic to treat such per- orally before the issuing of the policy,
sons as agents for the applicant in making the question arises, how far such a repre-
the application, or to allow a discrepancy sentation can be material, as it would
between the written statements and the seem that the insured might lawfully
facts, as they existed and were commu- change his mind. It has been laid down
nicated to the agent, to avoid the policy. that a mere expression of intention, al-
Ins. Co. v. Wilkinson, 13 Wall. 222, 235; though acted upon, is no ground for equi-
Woodbury Savings Bank v. Charter Oak table interference. Piggott v. Stratton, 1
Ins. Co., 31 Conn. 517, 526; May v. De G., F. & J. 33, 52; Jordan v. Money,
Buckeye Mut. Ins. Co., 25 Wis. 291; Row- 5 H. L. C. 185; Langdon v. Doud, 10
ley v. Empire Ins. Co., 36 N. Y. 550; Allen, 432. But the first case shows that
Franklin v. Atlantic Ins. Co., 42 Mo. 456; the courts may go far in getting rid of the
Columbia Ins. Co. v. Cooper, 50 Penn. St. principle by way either of contract (ib.
331; Miller v. Mutual Benefit L. Ins. Co., 49) or estoppel. See 284, 374. As to
31 Iowa, 216; Commercial Ins. Co. v. words of description, see 376, n. 1, (d).
Spankneble, 52 Ill. 53. See Emery v. It is material to add that a warranty
Piscataqua Ins. Co., 52 Me. 322; but may be either affirmative only, that a
compare Richardson v. Maine Ins. Co., 46 certain thing is now true, or promissory,
Me. 394; Kibbe v. Hamilton Mut. Ins. that something shall be true in the future.
Co., 11 Gray, 163.
It does not follow, therefore, that wher
After a careful reconsideration of the descriptive words are construed as a wai
[383]
* 283
[PART V.
OF PERSONAL PROPERTY.
•
avoid the policy. It will avoid it though the loss arose from a
cause unconnected with the misrepresentation, or even though
the misrepresentation or concealment happened through mistake,
neglect, or accident, without any fraudulent intention. A posi-
tive representation on a material point is essentially a part of the
contract, and essentially a warranty, though it be not inserted in
the policy. It differs from a warranty in being more liberally
construed, and as requiring only to be substantially true; whereas
a warranty must be fulfilled to the letter, and precludes all
inquiry as to its materiality. (d) Lord Mansfield laid
*283 down * with great strength and clearness the general
principles which govern this branch of the subject, and
they have been implicitly adopted in all succeeding cases. The
special facts upon which the contingent chance is to be computed
usually lie in the knowledge of the insured only, and the under-
writer trusts to his representation, and proceeds upon the confi-
dence that he does not withhold any facts material to the estimate
of the risk. The suppression of any such facts, whether by design,
or mistake, or negligence, equally renders the policy void, for the
risk run becomes different from the one assumed in the policy.
The law requires uberrima fides in the formation of the contract,
and yet either party may be innocently silent, as to grounds open
to both, for the exercise of their judgment. The underwriter
need not be told general topics of speculation and intelligence.
He is bound to know every cause which may occasion natural or
political perils. Men argue differently from natural phenomena
and political appearances, and when the means of information and
judging are open to both parties, each acts from his own skill
and judgment. The question in those cases always is, whether
there was, under all the circumstances, a fair representation or
a concealment; if the misrepresentation or concealment was
(d) Carter v. Boehm, 3 Burr. 1905; Pawson v. Watson, Cowp. 785; Fitzherbert
v. Mather, 1 T. R. 12; Ratcliffe v. Shoolbred, Park on Insurance, 249, 6th ed.; Mac-
dowall v. Fraser, Doug. 260; Shirley v. Wilkinson, ib. 306, n.; Bridges v. Hunter, 1
Maule & S. 15; 1 Marshall on Insurance, 450; Carpenter v. American Ins. Company,
1 Story, 57; and see Duer's Lecture on Representations, 45-47, 72, 73, where the
subject is discussed with great clearness and force. [Snow v. Columbian Ins. Co.,
48 N. Y. 624.]
ranty, they are on that account to be
taken as implying a promise. O'Niel v.
Buffalo Fire Ins. Co., 3 Comst. 122; and
cases cited, 376, n. 1. See Lycoming Ins.
Co. v. Mitchell, 48 Penn. St. 367. As to
concealment, see 286, n. 1.
[ 384]
LECT. XLVIII.]
* 284
OF PERSONAL PROPERTY.
designed, whether it was fraudulent; and if not designed,
whether it varied materially the object of the policy, and changed
the risk understood to be run. If the misrepresentation was by
fraudulent design, it avoids the policy, without staying to inquire
into its materiality; and if it was caused by mistake or oversight,
it does not affect the policy, unless it was material, and not true
in substance; and in that case it will vitiate the policy without
assuming the ground of fraud, for it is not the contract the party
undertook to make. If the representation of the property insured
greatly overrate the value, it will avoid the policy, whether the
misrepresentation be through ignorance or design. (a)
* If the information be stated as mere opinion, expecta- *284
tion, or belief, it does not affect the policy, provided it was
given in good faith; for the underwriter, in such a case, takes the
risk upon himself. Any such declaration of expectation or belief,
if made with a fraudulent intent, avoids the policy. (a) ¹
1
(a) Catron v. Tenn. Ins. Co., 6 Humph. 176. Marshall, in his Law of Insurance,
479, questions very strongly the propriety of the decision in Carter v. Boehm, from
which I have chiefly drawn the above principles. But whatever may be the opinion
as to the application in that case of the doctrines stated, there is no question as to their
solidity, independent of the case, and they were confirmed by Lord Ellenborough, in
4 East, 596, and recently by the Supreme Court of the United States, in M'Lanahan
v. The Universal Ins. Company, 1 Peters, 170. See, also, Flinn v. Tobin, 1 Moody
& M. 367, s. P. A positive representation may be proved by evidence, provided the
terms of the representation do not plainly contradict, or are not directly repugnant to
the terms of the policy, and it becomes, in many cases, when proved, like a usage,
a part of the contract. It is also understood, that a representation may supersede an
implied warranty, or a usage, if it be a representation of facts inconsistent with the
usage, or the truth or obligation of the warranty. Duer's Lecture on Representations,
54, 61, 63, 64, 173, 174.
(a) Lord Mansfield, Cowp. 788; Barber v. Fletcher, Doug. 305; Hubbard v. Glover,
3 Camp. 312; Bowden v. Vaughan, 10 East, 415; Rice v. New England Marine Ins.
Company, 4 Pick. 439; Allegre v. Maryland Ins. Company, 2 Gill & J. 136; Duer on
Representations, 96, 97, and note 27, p. 214. In the cases of Rice v. The New Eng-
land M. Ins. Co., 4 Pick. 439; Bryant v. Ocean Ins. Co., 22 Pick. 200; Whitney v.
Haven, 13 Mass. 172, and Alston v. Mech. M. Ins. Co., 4 Hill (N. Y.), 330, it is declared,
that a representation to the insurer imports an affirmation of some past or existing fact
material to the risk, and not a statement of matters resting merely in expectation or
intention. If the representation be in the nature of a promise for future conduct, it must
be inserted in the policy as a part of the contract, for otherwise a promissory expec-
tation is of no avail. But Mr. Duer, in his 7th Lecture on Representation, has, with
1 Compare Anderson v. Pacific F. & v. Pacific F. & M. Ins. Co., L. R. 6 Q. B
M. Ins. Co., L. R. 7 C. P. 65, with Ionides 674. As to note (a), see 282, n. 1.
VOL. III.
25
[ 385 ]
*285
[PART V.
OF PERSONAL PROPERTY.
A representation to the first underwriter, in favor of the risk,
extends to all subsequent underwriters, and on the ground that
they subscribed upon their confidence in his judgment and knowl-
edge of the risk, and are, therefore, entitled to avail themselves
of all the conditions upon which he subscribed. (b) This rule has
not been favorably received by later judges, and it is strictly con-
fined to representations made to the first underwriter, and not to
intermediate ones. (c) Nor does it extend to a subsequent under-
writer on a different policy, though on the same vessel and against
the same risks. (d)
Whether the knowledge or information was material for the
insurer to know, and necessary to be communicated to him when
the contract is made, is a question of fact for a jury, and they are
to judge of the materiality of the information under a
* 285 consideration of all the circumstances * that belong to the
case. (e) This point was fully considered, and with a
2
much research and ability, examined this doctrine on the ground of principle and
authority, and questions its accuracy. He insists that a positive promissory representa-
tion that the specified event will happen, or an act be performed, is clearly deducible
from the cases, and sustained by an irresistible weight of authority. Duer's 7th Lect-
ure on the Law of Representations in Marine Insurance, 52, and note 9, pp. 139-156,
New York, 1844.
(b) Barber v. Fletcher, supra; Stackpole v. Simon, Park on Insurance, 582, 6th
ed.; Robertson v. Majoribanks, 2 Stark. 573; Duer's Lecture on Representations,
65-69.
(c) Brine v. Featherstone, 4 Taunt. 869; Lord Ellenborough, Forrester v. Pigou, 1
Maule & S. 9; Bell v. Carstairs, 2 Camp. 543.
(d) Elting v. Scott, 2 Johns. 157.
(e) It is an unsettled question in the English and American law of insurance,
whether the opinions of witnesses of experience and skill, such as insurers, insurance
brokers, and merchants, are admissible in evidence to guide the decision of the jury
as to the materiality of a representation. It appears to me that the weight of author-
ity, and the manifest reason of the thing, are in favor of the admission of such evi-
dence. The authorities are collected by Mr. Duer, in note 19 to his Lecture on
Representations, with his approbation of the admission of such evidence, on the sound
maxim that cuique in sua arte credendum est. See Holroyd, J., in Berthon v. Loughman,
2 Stark. 259; Littledale v. Dixon, 4 Bos. & P. 151; Haywood v. Rodgers, 4 East, 590;
Lord Tenterden, in Rickards v. Murdock, 10 B. & C. 527; Tindal, C. J., in Chapman
v. Walton, 10 Bing. 57; Story, J., in M'Lanahan v. Universal Ins. Co., 1 Peters, 188,
for the admission; and Lord Mansfield, in Carter v. Boehm, 3 Burr. 1905; Gibbs, C. J.,
2 Gates v. Madison Co. M. Ins. Co., 2
Comst. 43. The opinion expressed in the
note (e) is favored by Hartman v. Key-
#tone I. Co., 21 Penn. St. 466; Hobby v.
Dana, 17 Barb. 111. But compare Pro-
tection Ins. Co. v. Harmer, 2 Ohio St.
452, 458.
1
[386]
LECT. XLVIII.]
* 285
OF PERSONAL PROPERTY.
review of the English and American authorities, in the case of the
New York Firemen Insurance Company v. Walden; (a) and that
doctrine has since received the unqualified sanction of the
Supreme Court of the United States. (b) The books abound
with cases relative to the much litigated question, as to what are
and what are not necessary disclosures, and it is not consistent
with my purpose to do more than bring into notice the leading
principles which govern this very practical branch of the law of
insurance.
It is the duty of the insured to communicate every species of
intelligence which he possesses, which may affect the mind of the
insurer, either as to the point whether he will insure at all, or as
to the rate of premium. The decisions, in some of the old cases,
contain strict doctrines on the subject of concealment which have
never been shaken; (e) and the modern cases are equally sound
and exact in their requisitions. (d) But the insured is not bound
to communicate loose rumors, nor any facts which the under-
writers may be presumed to know equally with himself. General
news stated in the newspapers and open to all, need not be stated,
unless there be something known to the assured, and applying
peculiarly to his case, or unless he has particular information not
in possession of the public, and then the withholding of it is
material. (e) The underwriters are presumed to have the ordi-
nary marine intelligence appearing in the gazettes, or when they
are fairly put upon inquiry. (ƒ)
in Durrell v. Bederley, Holt, N. P. 283; Lord Denman, in Campbell v. Rickards, 5
B. & Ad. 840; Sutherland, J., in Jefferson Ins. Co. v. Cotheal, 7 Wendell, 72, against
the admission of such proof.
(a) 12 Johns. 513.
(b) M’Lanahan v. Universal Ins. Company, 1 Peters, 170.
(c) De Costa v. Scandret, 2 P. Wms. 170; Seaman v. Fonereau, Strange,
1183.
(d) Lynch v. Hamilton, 3 Taunt. 37; Beckwaite v. Nalgrove, cited ib. 41; Rickards
v. Murdock, 1 Lloyd & Wels. 132; 10 B. & C. 527, s. c. In this last case, orders to
an agent to wait thirty days after the receipt of the order, before he insures, to give
every chance for the arrival of the vessel, were deemed material, and the fact of the
delay ought to have been disclosed to the insurer. In the subsequent case of Richards
v. Campbell, in 1832, the agent was held responsible for his great ignorance in not
knowing the necessity of the disclosure, and in not making it..
(e) Lynch v. Dunsford, 14 East, 494; Moses v. Delaware Ins. Company, Whar-
ton's Dig. 310, pl. 18; [1 Wash. 385.]
(ƒ) Green v. Merchants' Ins. Company, 10 Pick. 402; Alsop v. Commercial Ins.
Company, reported in 2 Phillips on Insurance, 85, 1st ed.
[387]
* 286
[PART V.
OF PERSONAL PROPERTY.
The insured is not bound to disclose all bygone calamities or
produce his portfolio of letters; and he need only disclose the
material facts known to him at the date of the last intelli-
gence. (g) The underwriter is bound to know the nature
*286* and general course of the trade and of the voyage, and
he assumes that kind of knowledge at his peril. (a)¹ The
general rule is, that all facts material to the risk, and known to
the one party and not to the other, must be disclosed when the
policy is to be effected; and they must be fully and fairly dis-
(g) Freeland v. Glover, 6 Esp. 14; 7 East, 457, s. c.; Kemble v. Bowne, 1 Caines,
75; Vallance v. Dewar, 1 Camp. 503.
(a) Planché v. Fletcher, Doug. 251; Galbraith v. Gracie, 1 Condy's Marshall, 388,
a, note; De Longuemere v. N. Y. Fire Ins. Company, 10 Johns. 120; Kingston v.
Knibbs, 1 Camp. 508, note; Vallance v. Dewar, ib. 503; Stewart v. Bell, 5 B. & Ald.
238; Seton v. Low, 1 Johns. Cas. 1.
1 Concealment. See, for the limit of
this doctrine, Harrower v. Hutchinson, L.
R. 5 Q. B. 584.
As to the general rule next stated, see
Russell v. Thornton, 4 Hurlst. & N. 788;
6 H. & N. 140; Nicholson v. Power, 20 L.
T. N. s. 580.
S.
There is no excuse for not disclosing
facts which the party proposing the in-
surance is bound to communicate, except
that the insurer has, at the time of enter-
ing upon the contract, knowledge of the
particular fact. The insurer cannot take
advantage of his own wilful blindness or
negligence, but it is not enough that he
may be induced, by a course of reasoning
and an effort of memory, to suspect that
the vessel is a dangerous risk. Bates v.
Hewitt, L. R. 2 Q. B. 595. Compare
Gaudy v. Adelaide Ins. Co., L. R. 6 Q. B.
746.
In England, before a policy is exe-
cuted, it is usual to prepare a slip fixing
the terms of the insurance and the pre-
mium. This slip, under the English
statutes, is not enforceable at law or in
equity, but, according to the understand-
ing and practice of those engaged in
marine insurance, is treated as the com-
plete and final contract between the
parties, and it has been held on that
ground that a failure to disclose facts
coming to the knowledge of the insured
after the slip was signed, but before the
execution of a substituted policy, did not
invalidate the latter. Ionides v. Pacific
Ins. Co., L. R. 6 Q. B. 674, 685; L. R. 7
Q. B. 517.
In Proudfoot v. Montefiore, L. R. 2 Q.
B. 511, the Court of Queen's Bench dis-
approved of Mr. Justice Story's reasoning
in Ruggles v. Gen. Int. Ins. Co., infra, n.
(ƒ), and pronounced the ground on which
his decision was affirmed untenable. Glad-
stone v. King, ib., was thought well de-
cided, and the court held that when a loss
of cargo came to the knowledge of the
agent employed to purchase and ship it, it
was his duty to communicate the fact to
principal by telegraph; and that if he
omitted to do so in order that his prin-
cipal might not be prevented from insur-
ing before hearing the news, although he
wrote by the earliest mail, an insurance
effected by the principal in ignorance of
the loss was void. But the more limited
doctrine of the text is followed in Clement
v. Phenix Ins. Co., 6 Blatchf. 481. See,
also, Folsom v. Mercantile M. Ins. Co., 8
Blatchf. 170.
[ 388]
LECT. XLVIII.]
* 287
OF PERSONAL PROPERTY.
closed. (b) But if the subject on which disclosures would other-
wise be requisite, be covered by a warranty, either express or
implied, in that case it need not become a matter of representa-
tion. (c) It is likewise sufficient, in the case of a representation,
that it be equitably and substantially complied with; (d) and in
furtherance of that perfect good faith which is so strongly called
for in the formation of this contract, it is adjudged, that if the
party, after having given instructions for effecting a policy,
receives intelligence material to the risk, he must forthwith, or
with due and reasonable diligence, communicate it, or counter-
mand his instructions. (e) If a person be an agent for procuring
insurance, the assured is of course answerable for his information,
and assumes the responsibility of its truth. So, if the master of
the vessel or consignor be the agent to communicate to the assured
the requisite information, and the assured adopts such information,
and makes it the basis of his contract of insurance, he becomes
responsible for its truth, and any concealment or misrepresenta-
tion in respect to such information by the agent avoids the pol-
icy. (f) When the insured acts with good faith, the validity of
the policy will not be affected by the fraudulent misconduct of
the master, in withholding from his owner information of the
loss, until after the policy was underwritten.
*The French Ordinance of the Marine had no positive * 287
provision on this subject, and yet the same principles
which prevailed in the English law were recognized as sound
(b) Ely v. Hallett, 2 Caines, 57; Kohne v. Ins. Company of N. America, 6 Binney,
219; Hoyt v. Gilman, 8 Mass. 336.
(c) Shoolbred v. Nutt, Park on Ins. 300, 6th ed.; Haywood v. Rodgers, 4 East,
590; Walden v. N. Y. Firemen Ins. Company, 12 Johns. 128; De Wolf v. N. Y.
Firemen Ins. Company, 20 id. 214; s. c. 2 Cowen, 56.
(d) Pawson v. Watson, Cowp. 785; De Hahn v. Hartley, 1 T. R. 343; Suckley v.
Delafield, 2 Caines, 222.
(e) Emerigon, ii. 148; Valin's Comm. ii. 95; Grieve v. Young, Millar on Insur-
ance, 65, [pt. 1, c. 2, § 2;] Watson v. Delafield, 2 Caines, 224; 2 Johns. 526, s. c. ;
M'Lanahan v. Universal Ins. Company, 1 Peters, 170. But the assured, it is held, is
not bound to use all accessible means of acquiring information material to the risk,
up to the last instant of time, as the omission to call at the post office on the day of
the insurance, if he acts with entire good faith. Neptune Ins. Company v. Robinson,
11 Gill & J. 256.
(f) Fitzherbert v. Mather, 1 T. R. 12; General Interest Ins. Company v. Ruggles,
12 Wheaton, 408; s. c. 4 Mason, 74. The decision in Gladstone v. King, 1 Maule & S.
35, was, that if the master conceals a loss or other material fact from the owner, in
the letter to him, and the owner, upon the receipt of the letter, and in ignorance of
[389]
* 287
[PART V.
OF PERSONAL PROPERTY.
principles applicable to the government of the contract. (a) In
the new code, (b) it is provided, that any concealment or misrep-
resentation on the part of the insured, which would diminish the
opinion of the risk, or change the subject matter of it, annuls the
insurance. It is held to be void even when the concealment or
misrepresentation would have had no influence on the loss. Nor
is it deemed necessary, under the French law, to prove fraud in
fact; and the concealment or misrepresentation is equally fatal,
whether it proceeds from design, forgetfulness, or negligence. (c)
The severe dispositions of the code are much commended by the
French lawyers, as an improvement upon their ancient jurispru-
dence, and a great protection to the insurer against impositions
of which he was often the victim. (d)
2. (Of warranty.) — There is, in every policy, an implied war-
ranty that the ship is seaworthy when the policy attaches. This
means, as we have already seen, that the vessel is competent to
resist the ordinary attacks of wind and weather, and is com-
petently equipped and manned for the voyage, with a sufficient
crew, and with sufficient means to sustain them, and with a cap-
tain of general good character and nautical skill. (e) It is also
the fact, effects an insurance, the policy is void so far as respects the previous loss;
for that the captain was bound, as agent of the owner, to communicate to him the
loss, and what was known to the agent was impliedly known to the principal.
(a) Emerigon, i. 69. The ordinances of Hamburg, and of the marine, and the
Code of Commerce, required generally that every condition or covenant stipulated
between the parties should be inserted in the policy. This would seem to include all
positive representations, and yet they require only the substantial performance of
them, unless a literal fulfilment be made a condition. Ord. de la Marine, 2 Valin, 31,
Code de Commerce, art. 332; Benecke, cited by Mr. Duer on Representations, 133.
The English judges have regretted that all material representations were not inserted
in the policies, to avoid dispute and litigation. Lord Tenterden and Sir Vicary Gibbs,
9 B. & C. 693; 4 Taunt. 639.
(b) Code de Commerce, art. 348.
(c) Pardessus, iii. 330; Boulay-Paty, iii. 510. The latter writer cites several deci-
sions from the Journal de Jurisprudence Commerciale et Maritime de Marseilles,
made within the ten preceding years, by which contracts of insurance were declared
void on this very ground of misrepresentation and concealment; and they do great
credit to the exemplary justice of the French tribunals. Ib. 514–527.
(d) Under this head of representations, the lecture of Mr. Duer, recently published,
and to which I have frequently referred, contains an excellent analysis of the cases,
and a logical deduction of the principles they sustain, and it increases our earnest
desire that he may be encouraged to go on, and examine and illustrate the whole
body of insurance law, in the same critical and masterly manner.
(e) Law v. Hollingworth, 7 T. R. 160; Wilkie v. Geddes, 3 Dow, 57; Silva v. Low
1 Johns. Cas. 184; Brown v. Girard, 4 Yeates, 115; Walden v. Firemen Ins. Com-
[ 390 ]
LECT. XLVIII.]
* 288
OF PERSONAL PROPERTY.
an implied condition, that the goods, tackle of the ship, &c., shall
be properly stowed, (f) and that there should be a pilot on board
of competent skill. (g) This warranty of seaworthiness.
relates to the commencement * of the risk, and the war-
*288
ranty is not broken if she becomes unseaworthy after-
wards. (a)¹ But it is the duty of the assured to keep the vessel
pany, 12 Johns. 128. [The Niagara v. Cordes, 21 How. 7. Compare Draper v.
Comm. Ins. Co., 4 Duer, 234, 21 N. Y. 378, with The Dubuque, 2 Abbott U. S. 20, 25.
As to Law v. Hollingworth, see 289, n. 1.] In the nisi prius case of Clifford v. Hunter,
3 Carr. & P. 16, Lord Tenterden ruled, that a ship was not seaworthy for a voyage
from India to England, with no other person on board, except the master, capable,
by his skill in navigation, of taking the command of the ship, in the case of the death
or sickness of the master, and that the mate must have that nautical skill. This is
a new doctrine, and it may be questioned as a general rule, applicable to all voyages.
Lord Tenterden admitted it to be a question, not of law, but of fact, for a jury. The
warranty would seem to imply no more than that the assured must have a sound and
well equipped vessel in reference to the voyage, and have on board a competent
person as master, and a competent person as mate, and a competent crew as seamen.
In the American coasting and West Indian trade, Lord Tenterden's rule would be
oppressive, and is contradicted by usage, and is not the law in respect to any such
trade. Treadwell v. Union Ins. Company, 6 Cowen, 270. In the case of Gillespie v.
Forsyth, tried before Mr. Justice Bowen and a special jury, in the K. B., at Quebec,
October, 1839, the doctrine of Lord Tenterden was discarded, in reference at least
to voyages between the West Indies and Quebec, and it was shown to be contrary
to usage. Law Reporter for January, 1840, [ii. 257.] But in Copeland v. N. E.
Marine Ins. Company, 2 Met. 432, it was held, after great discussion, that a vessel,
to be seaworthy, must not only have a competent master, but a mate, competent
to act as master in case of necessity.
(f) Roccus, note 22; Brooks v. Oriental Ins. Company, 7 Pick. 259.
(g) Vide supra, 175.
(a) Peters v. Phoenix Ins. Company, 3 Serg. & R. 25; Holdsworth v. Wise, 1
Mann. & Ry. 673; American Ins. Company v. Ogden, 20 Wend. 287. The want of
seaworthiness in a vessel when the voyage commences is a good defence, though she
arrived in safety at the port of destination. Prescott v. U. Ins. Company, 1 Wharton,
399. Seaworthiness at the commencement of the voyage is a condition precedent;
and if seaworthiness does not then exist, the policy is void, and the insurers are not
responsible for subsequent loss, even if it arises from another cause; for the policy
never attached. Starbuck v. N. E. Ins. Company, 19 Pick. 199. If a vessel be war-
ranted neutral, it is sufficient that she be so when the risk commences. Eden v. Par-
kinson, Doug. 732; Tyson v. Gurney, 3 T. R. 477. If the warranty or representation
be falsified by irresistible force or unavoidable accident, after the risk has attached,
the validity of the contract remains unimpaired.
1 Warranty of Seaworthiness. — (a) Voy-
age Policies. The general rule of the
English law is said to be that the warranty
of seaworthiness in voyage policies is
satisfied if the vessel is seaworthy at the
commencement of the risk. There is no
warranty that the vessel shall continue
seaworthy. At the same time the war-
ranty may sometimes be divided, so that
if the voyage be such as to require a dif-
ferent state of equipment in different parts
of it, it is enough if the vessel be at each
[391]
* 288
[PART V
OF PERSONAL PROPERTY.
seaworthy during the voyage, if it be in his power to do so; and if,
from the neglect or want of good faith of the owner or his agents,
stage of the navigation in which the loss
happens properly manned and equipped
for it. The case of a policy on ship at
and from London on a whaling voyage to
the North is often put, and the warranty
is said to be for four gradations: fit for
dock in London; fit for river to Gravesend;
fit for sea to Shetland; then fit for whal-
ing. The policy attaches if the ship is fit
for dock; but the warranty is broken if
either of the other stages of fitness is not
completed before the vessel enters upon
the stage of the voyage which requires it.
Dixon v. Sadler, 5 M. & W. 405, 414; 8
M. & W. 895; Biccard v. Shepherd, 14
Moore P. C. 471, 493; Thompson v.
Hopper, 6 El. & Bl. 172, 181; Quebec M.
Ins. Co. v. Commercial Bank of India, L.
R. 3 P. C. 234, 241; Bouillon v. Lupton,
15 C. B. N. s. 113, 139.
The language of the text as to the
duty of the assured to keep the vessel in
a suitable condition for the service in
which she is engaged during the voyage
insured, is supported by that of some
American cases; but it must be under-
stood that this duty is not a technical
warranty. Capen v. Washington Ins.
Co., 12 Cush. 517, 540. Dabney v. New
England M. Ins. Co., 14 Allen, 300, 305.
But the doctrine of the English law and
of many American decisions is that if the
vessel, crew, and equipments be originally
sufficient, the assured has done all that he
contracted to do, and is not responsible
for the subsequent deficiency occasioned
by any neglect or misconduct of the mas-
ter or crew. The insurers are liable unless
the negligence or misconduct of the as-
sured or his agents was a proximate cause
of the loss in a pretty strict sense, as is
explained post, 302, n. 1. See, also, 289,
n. 1; Arnould, 4th ed. 599, 595, 668.
Compare Thompson v. Hopper, El., Bl. &
El. 1038, referred to infra. The war-
ranty of seaworthiness in a voyage policy
does not extend to the seaworthiness of
lighters employed to land the cargo. Lane
v. Nixon, L. R. 1 C. P. 412.
It is no answer to an action upon a
voyage policy on goods to say that the
goods were not seaworthy at the beginning
of the voyage, or that they were in an unfit
condition to be shipped, unless it is shown
that the loss arose from that unfitness, in
which case they are not lost by a peril
insured against. Koebel v. Saunders, 17
C. B. N. s. 71.
(b) Time Policies. The rule that a
warranty of seaworthiness is implied in
every policy, must be taken with some
modification at least, with regard to time
policies, in the existing state of the au-
thorities. It has been decided by the
House of Lords in England that there is
no warranty of seaworthiness at the com-
mencement of the risk, or at the date of
underwriting, in a time policy framed in
the usual manner, on a vessel then at sea.
Gibson v. Small, 4 H. L. C. 353; Michael
v. Tredwin, 17 C. B. 551. And the same
decision has been reached by American
courts. Capen v. Washington Mut. Ins.
Co., 12 Cush. 517; Jones v. Ins. Co., 2
Wall. Jr. 278. Not long after the deter-
mination of Gibson v. Small, a case on a
similar policy was argued in the Queen's
Bench, where it appeared that the ship,
instead of being at sea when the policy
was underwritten, was lying, outward
bound, in the port where the owner
resided, although there was no allusion to
the place of the ship in the policy. These
facts were held not sufficient to distin-
guish the case from Gibson v. Small, and
the general rule was laid down, and has
been repeated in later cases as settled,
that there is no implied warranty of sea-
worthiness in a time policy. Thompson
v. Hopper, 6 El. & Bl. 172; El., Bl. & El.
1038, 1049; Fawcus v. Sarsfield, 6 El. &
Bl. 192. See, also, Biccard v. Shepherd,
[392]
LECT. XLVIII.]
* 288
OF PERSONAL PROPERTY.
the vessel becomes unseaworthy, by damage or loss in her hull
or equipments during the voyage, the owner must repair the
14 Moore P. C. 471, 493; Barker v. Janson,
L. R. 3 C. P. 303, 306; Lidgett v. Secretan,
L. R. 6 C. P. 616, 628.
In a subsequent stage of Thompson
v. Hopper, it was held by some of the
judges that the conduct of the insured in
knowingly sending the vessel to sea in an
unseaworthy condition, and not one of the
perils insured against, must be the prox-
imate cause of the loss, in order to exon-
erate the insurers. But this opinion was
by no means unanimous. El., Bl. & El.
1038, reversing s. c. 6 El. & Bl. 937.
On the other hand, it has been held in
America that there is an implied warranty
of seaworthiness, similar to that implied
in a voyage policy, in a time policy on a
vessel which is in a foreign port where
full repairs may be made, at the com-
mencement of the risk. Hoxie v. Pacific
M. Ins. Co., 7 Allen, 211; Rouse v. Ins.
Co., 25 Law Rep. 523; 3 Wall. Jr. 367;
Hoxie v. Home Ins. Co., 32 Conn. 21,
46.
It does not appear in the American
cases that the vessel was stated in the
policy or known by the parties to be in
port, in which case there might be stronger
ground for inferring an intention to war-
rant seaworthiness than if the vessel was
supposed to be at sea. They seem, there-
fore, to point to the conclusion that there
must be implied a general intention to
warrant seaworthiness, in time as well as
voyage policies, unless the circumstances
of the ship shall turn out to have been
such that the warranty is inapplicable or
requires modification. Bigelow, C. J.,
even intimates that there is a warranty in
a time policy on a vessel at sea that she
was seaworthy when last in a port where
she could have been made so before the
commencement of the risk; and the lan-
guage of the Connecticut case is very
strong. This view, that the ground for
denying the warranty at the beginning of
the risk is its inapplicability if the vessel
is at sea, is confirmed by another Massa-
chusetts decision that there is no such
warranty in a mixed policy on a vessel at
sea from a certain date, during her voyage,
until her return, if she should return
before a certain other date; Macy v.
Mut. Mar. Ins. Co., 12 Gray, 497; see
4 Am. Law Rev. 217; and by the state-
ment that the warranty is implied because
it is a condition which the assured can
and ought to perform, or else has a remedy
over against another for not performing,
in decisions denying the warranty where
the assured has not such power. Lane v.
Nixon, L. R. 1 C. P. 412, 421. Mr. Jus-
tice Erle objects, in his dissenting opinion
in Thompson v. Hopper, 6 El. & Bl. 172,
185, that the broad ground cannot be
taken that the contract is to be construed
like any other written contract, for that
would exclude the implication of a duty
on the part of the insured to disclose all
material facts. The majority of the court
seem to put their opinion mainly on
the desirableness of a short and clear
rule.
It is supposed that the principles which
are applied in America and England
respectively in determining the existence
or extent of a duty to repair at interme-
diate ports during a voyage insured, and
which have been stated above, are also
applicable to time policies on the question
whether any and what duty exists to
repair at intermediate ports or at the
commencement of each separate voyage
during the term insured. Dixon v. Sadler,
5 M. & W. 405, 415 (which is said to
remain a leading case on account of the
discussion contained in it, although it
assumed that there was a warranty of
seaworthiness in a time policy; Arnould,
4th ed. 595, n. 1); Jenkins v. Heycock, 8
Moore P. C. 351, 361; Capen v. Wash-
ington Ins. Co., 12 Cush. 517, 526. Com-
[393]
* 288
[PART V.
OF PERSONAL PROPERTY.
damage or supply the loss, at the port of refuge, refreshment, or
trade. The underwriter will be discharged from liability for any
loss, the consequence of such want of faith or diligence. Unsea-
worthiness, arising after the commencement of the voyage, and
produced by a peril insured against, does not, of itself, discharge
the insurer. It imposes upon the assured the duty of using rea-
sonable diligence to repair it, and a negligence in that respect
may discharge the insurer from any loss arising from the want of
such due diligence. (b) If a vessel be insured in the latter part
of a long sea voyage, the standard of seaworthiness is more liberal
and more relaxed, and it will be sufficient if the vessel be com-
petent to be safely navigated home. (c) There are numerous
cases in England and in this country on the question of seawor-
thiness, and they have generally been questions depending upon
matters of fact, and lead to inquiries too minute for general
elementary instruction. (d) A breach of the implied warranty of
seaworthiness, in the course of the voyage, has no retrospective
operation, and does not destroy a just claim to damages for losses
occurring prior to the breach of this implied condition. (e) The
standard of seaworthiness has been gradually raised within the
last thirty years, from a more perfect knowledge of ship-building,
(b) Paddock v. Franklin Ins. Company, 11 Pick. 227; Hollingworth v. Brodrick, 7
Ad. & El. 40; American Ins. Company v. Ogden, 20 Wend. 287, 294; Copeland v.
N. E. Marine Ins. Co., 2 Met. 432.
(c) Hucks v. Thornton, Holt, N. P. 30; Paddock v. Franklin Ins. Company, 11
Pick. 227.
(d) The cases are well collected in Phillips on Insurance, i. 308–329, 2d ed.
(e) The same principle applies as to misrepresentations exempt from fraud. Duer
on Representations, 83; Annen v. Woodman, 3 Taunt. 299; Sewall, J., in Taylor v.
Lowell, 3 Mass. 347; Paddock v. Franklin Ins. Company, 11 Pick. 227.
pare Hathaway v. Sun Mut. Ins. Co., 8 before setting out on a voyage is seaworthy
Bosw. 33, 65.
(c) What is Seaworthy. — The question
whether a vessel is seaworthy is almost
always to be determined by the jury on
the evidence. Walsh v. Washington M.
Ins. Co., 32 N. Y. 427; Hathaway v. Sun
Mut. Ins. Co., 8 Bosw. 33, 54; Myers v.
Girard Ins. Co., 26 Penn. St. 192; Field
v. Ins. Co. of N. A., 3 Md. 244. There is
no fixed standard of fitness.
Knill v.
Hooper, 2 H. & N. 277, 283. But a ship
if it is fit in the degree which a prudent
owner uninsured would require to meet
the perils of the service it is then engaged
in, and would continue so during the
voyage, unless it met with extraordinary
damage. Burges v. Wickham, 3 Best &
Sm. 669, 692; Clapham v. Langton, 5
Best & Sm. 729; Hoxie v. Pacific M. Ins.
Co., 7 Allen, 211, 225. This standard is
made use of in other insurance questions,
as will be seen hereafter.
[394]
LECT. XLVIII.] OF PERSONAL PROPERTY.
* 289
a more enlarged experience of maritime risks, and an increased
skill in navigation.
many ports certain equipments would now be deemed
essential, which at an earlier period were not customary on
the same voyages. Seaworthiness is to be measured by the
standard in the ports of the country to which the vessel belongs,
rather than that in the port or country where the insurance was
made. (ƒ)
Every warranty is part of the contract, and is either express or
implied. If it be an express warranty, it must appear upon the
face of the policy. Any statement or averment of a fact, or any
undertaking or description on the part of the insured on the face
of the policy, which relates, as a matter of fact, to the risk,
amounts to a warranty. It differs from a representation in this
respect, that it is in the nature of a condition precedent, and
requires a strict and literal performance. Whether the thing
warranted be material or not, and whether the loss happened by
reason of a breach of the warranty, or did not, is immaterial.
A breach of it avoids the contract ab initio. (g) Every condi-
tion precedent requires a strict performance to entitle a
party to his right of action. But seaworthiness * in port *289
may be one thing, and seaworthiness for a whole voyage
quite another; and a ship may be seaworthy in harbor when
under repair though she would not be so in that condition at
sea. (a) It relates to the purposes in contemplation, whether in
port or for the voyage, and seaworthiness is of course subject to
be modified by circumstances. A vessel may be seaworthy while
lying in port for the purposes to which she is to be there applied,
when she would not be for the voyage, and she may be seaworthy
for one voyage and not for another. It is sufficient if she be
(ƒ) Tidmarsh v. Washington Fire and Marine Ins. Company, 4 Mason, 439.
(g) De Hahn v. Hartley, 1 T. R. 343; Kenyon v. Berthon, Doug. 12, note 4; Goix
v. Low, 1 Johns. Cases, 341; Barker v. Phoenix Ins. Co., 8 Johns. 307; Goicoechea v.
Louisiana State Ins. Company, 6 Martin, N. S. 51; Wood v. Hartford F. I. Com-
pany, 13 Conn. 533; [Behn v. Burness, 3 Best & Sm. 751; Clark v. Manufacturers'.
Ins. Co., 2 Woodb. & M. 472, 487; ante, 282, n. 1.] So, in the French law, a false
declaration, as that a vessel was armed, or would sail with convoy, though made by
mistake, and without fraud, avoids the policy. Pothier, Traité d'Assurance, n. 196.
(a) Annen v. Woodman, 3 Taunt. 299; Bond v. Nutt, Cowp. 601; Pawson v. Wat-
son, ib. 785; De Hahn v. Hartley, 1 T. R. 343; Worsley v. Wood, 6 id. 710; Forbes
v. Wilson, 1 Park on Insurance, 344; Fowler v. Ætna Fire Ins. Company, 6 Cowen,
673.
[395]
* 289
[PART V.
OF PERSONAL PROPERTY.
seaworthy for the voyage when she sails. (b) The general rule
is, that the vessel must be seaworthy at the commencement of
the risk, whatever that risk may be, in order to make the policy
attach and charge the insurer. (c) It was held, in the case of
Weir v. Aberdeen, (d) that though a ship be unseaworthy at the
commencement of the risk, yet, if the defect be cured before a
loss, a subsequent loss is recoverable under the policy. The
argument of Lord Tenterden in favor of this doctrine is very
weighty, but a doubt seems to have been thrown over its solidity
by the Supreme Court of the United States. (e)
There has been much discussion respecting the doctrine of
seaworthiness, in its application to the successive stages of the
voyage subsequent to its commencement. The owner is bound
to keep the vessel in a competent state of repair and equipment
during the voyage, as far as it may be in his power. If this be
not the case, and a loss afterwards happens, which could not by
any means be either increased or affected by a prior breach of the
implied warranty of seaworthiness when the policy attached, as,
for instance, if the master should omit to take a pilot at an inter-
mediate port, when he ought and might have done it, and the
vessel be two years afterwards lost by capture, or if he sailed
without sufficient anchors, and the vessel be afterwards struck
with lightning, would the insurer be discharged? The better
opinion would seem to be that he would not be discharged. (ƒ)¹
1
(b) Taylor v. Lowell, 3 Mass. 331; Merchants' Ins. Company v. Clapp, 11 Pick. 56,
(c) Paddock v. Franklin Ins. Company, 11 Pick. 227.
(d) 2 B. & Ald. 320.
(e) M'Lanahan v. The Universal Insurance Company, 1 Peters, 170; [and by
Quebec M. Ins. Co. v. Commercial Bank of India, L. R. 3 P. C. 234.]
(ƒ) Shaw, C. J., Paddock v. Franklin Ins. Company, 11 Pick. 227; Weir v. Aber-
deen, 2 B. & Ald. 320; M'Millan v. Union Ins. Company of Charleston, S. C. 1838;
American Ins. Company v. Ogden, 15 Wend. 532; Copeland v. N. E. Marine Ins. Co.,
2 Met. 432.
1
¹ Pilot. — It has already been explained
that the duty to keep the vessel in a
suitable condition for the service in which
she is engaged is not treated as a techni-
cal warranty, even by those courts which
assert the existence of such a duty; ante,
288, n. 1; and the duty to take a pilot at
an intermediate port is a duty of that
kind. Law v. Hollingworth, cited ante,
287, n. (e), which seemed to lay down a
stricter rule, is explained and qualified in
Hollingworth v. Brodrick, 7 Ad. & El. 40,
44, and in Sadler v. Dixon, 8 M. & W.
895, 900. The opinion is expressed in
Arnould on M. Ins. 4th ed. 598, that, ex-
cept when required by the positive pro
visions of an act of Parliament, the cap-
tain's negligence in not having a pilot on
[396]
LECT. XLVIII.]
* 290
OF PERSONAL PROPERTY.
A clause is frequently inserted in policies, that if a vessel upon
a regular survey be declared unseaworthy, by reason of her being
unsound or rotten, the insurers shall be discharged. This clause
is intended to save the underwriters from the vexatious and diffi-
cult investigation of the latent defects of a ship to which the
disaster was to be attributed. It is sufficient if the survey be
made within a reasonable time after the termination of the voy-
age; and if the survey states that the vessel was condemned
solely on account of rottenness existing at the time of the survey,
it is a conclusive bar to the assured. (g)
The most usual express warranties are, that the ship was safe
at such a time, or would sail by such a day, or would sail with
convoy, or a warranty against illicit and contraband trade, or that
the property insured is neutral. During the long maritime war
that grew out of the French revolution, and while we continued
in our neutral position, the warranty of neutrality attracted great
attention, and became a very fruitful topic of discussion in the
courts of justice. It was understood and settled, that it was not
sufficient, under this warranty, that the ship and cargo be in
fact neutral. They must be neutral to the purpose of being pro-
tected, and, therefore, the ship must have the requisite insignia
of neutrality by being duly documented as a neutral vessel, and
by being unaccompanied with documents that go to falsify the
warranty. She must also have been conducted, throughout the
voyage, according to the duties which particular treaties and
the general rules of neutrality enjoin, so as to be entitled to pro-
tection, by the law of nations, in the courts of the belliger-
ent powers. To construe the engagement to be less than * 290
that, would be to render it, in a great degree, idle and
nugatory. On such a warranty the insurer lays out of view the
risk of loss, by reason of the want of due proof of neutrality,
and of a strictly neutral conduct. The insured having in his
own hands the means to maintain his averment, he is bound to
*
(g) Steinmetz v. United States Ins. Company, 2 Serg. & R. 296; Brandegee v.
National Ins. Company, 20 Johns. 328; Griswold v. National Ins. Company, 3 Cowen,
96; Rogers v. Niagara Ins. Company, 2 Hall (N. Y.), 86.
board at any intermediate stage of the
voyage, or in entering the port of destina-
tion, whereby a loss accrues, will not dis-
charge the underwriters from their lia-
bility, if such loss be proximately caused
by the perils insured against, and the
master and crew were originally com.
petent. Post, 302, n. 1.
[397]
291
[PART V.
OF PERSONAL PROPERTY.
do it whenever and wherever the neutrality of the property, or
its privileges as such, are called in question. (a) The warranty
imposes upon the insured the exact observance of all those duties
which belong to a neutral vessel; and by the violation, or by
the omission of any clear and certain neutral duty, the vessel
forfeits her neutrality, and the warranty is broken. The neutral
is bound to submit to visitation and search, and resistance thereto
would be a breach of the warranty. (b)
Many interesting questions arise in the course of a maritime
war upon the warranty of neutrality, but which attract no atten-
tion while they remain dormant in a season of general peace.
One of those questions held a prominent place some years ago in
the jurisprudence of this country, and led to very vexed discus-
sions and contradictory results. The controversy to which I
allude was concerning the legal effect, in a suit upon the policy,
of a sentence of condemnation in the admiralty courts of the
belligerent powers, of property warranted neutral, but captured,
libelled, and condemned as enemy's property. (c) The general
result of those discussions has been already stated, and they will
probably not be revived until some maritime war shall hereafter
arise, to stimulate cupidity, and disturb the commerce of the
*291
ocean.
*(6) Of the Perils within the Policy.-The general
rule is, that the insurer charges himself with all the mari-
time perils that the thing insured can meet with on the voyage:
præstare tenetur quodcunque damnum obveniens in mari. It was
an ancient opinion, stated by Santerna, that the insurer was not
responsible for very unusual and extraordinary perils nct specially
stated. But such a principle is now utterly exploded, and the
policy sweeps within its enclosure every peril incident to the
voyage, however strange or unexpected, unless there be a special
(a) Blagge v. New York Ins. Company, 1 Caines, 549; Baring v. Royal Exchange
Ass. Company, 5 East, 99; Carrere v. Union Ins. Company, Condy's Marshall, 406,
a, note; Galbraith v. Gracie, ib.; Phoenix Ins. Co. v. Pratt, 2 Binney, 308; Wilcocks
v. Union Ins. Company, ib. 574; Coolidge v. N. Y. Firemen Ins. Company, 14 Johns.
308. The register is the only requisite document in time of peace in evidence of the
national character of the vessel. Catlett v. Pacific Ins. Company, 1 Paine, 594. [For
other warranties see Insurance Co. v. Thwing, 13 Wall. 673; Snow". Columbian Ins.
Co., 48 N. Y. 624.]
(b) See i. 153.
(c) See ii. 120, 121.
[398]
LECT. XLVIII.] OF PERSONAL PROPERTY.
* 292
exception. (a) The perils enumerated in the common policy are
sufficiently comprehensive to embrace every species of risk to
which ships and goods are exposed from the perils of the sea, and
all other causes incident to maritime adventure. The enumerated
list may be enlarged or abridged at the pleasure of the parties.
In England and in this country, a specification of the risks is
an essential part of the contract. In most of the countries of
Europe, where there is no special agreement of the parties, the
perils that the policy is to cover are defined by law. (b)
A person may protect himself by insurance against all losses,
except such as may be repugnant to public policy or positive
prohibition, or occasioned by his own misconduct or fraud.
Against the latter it is not to be presumed any insurance could
be effected, nor would the courts tolerate such a vicious princi-
ple; for this would, as Pothier says, be a contract which would
invite ad delinquendum. (c)
1. (Of the acts of the government of parties.) — An insurance
against loss by reason of the acts of one's own government, as an
arrest or embargo, is valid. There is no distinction on this point
between a foreign and domestic embargo; and if the embargo inter-
venes after the commencement of the risk, it suspends, but
does not dissolve, the contract of insurance, and the *292
insured may abandon and claim a total loss. (a) The same
principle is incorporated into the new French commercial code,
and it pervades universally the law of insurance. (b) A distinction
has, however, been taken between that case and a claim arising
between subjects of different states, and it has been held, that a
(a) Santerna, de Ass. pt. 3, n. 72; Ord. de la Mar. tit. Ass. art. 20; Code, art. 350;
Boulay-Paty, iv. 9.
(b) Duer on Insurance, lect. 1, § 6.
(c) Goix v. Knox, 1 Johns. Cas. 337; Simeon v. Bazett, 2 Maule & S. 94; Pothier,
Traité d'Ass. n. 65.
(a) Page v. Thompson, cited in Park on Insurance, 109, n. 6th ed.; Odlin v. Penn-
sylvania Ins. Company, 2 Wash. 312; Delano v. Bedford Ins. Company, 10 Mass.
347; M'Bride v. Marine Ins. Company, 5 Johns. 299.
(b) Code de Commerce, art. 69; 1 Emerigon, 541; Pothier, h. t., n. 59.
¹ But the expression of the risks may
be by general terms read in the light
of those facts of which courts must take
judicial notice, or which are within the
common knowledge of mankind. Thus,
a contract which is in terms a policy of
marine insurance, but does not state ex-
plicitly the risks insured against, is a
policy of insurance against the usual
marine risks, of which barratry of the
master is held to be one. Parkhurst v.
Gloucester Mut. Fishing Ins. Co., 100
Mass. 301.
[399]
293
[PART V.
OF PERSONAL PROPERTY.
foreigner could not claim against a British underwriter, founded
on the act of his own state, any more than if the claim was created
by his own act, and on the principle that he was to be deemed a
party to the public authoritative acts of his own government. (c)
But Lord Ellenborough afterwards threw a doubt over the doc-
trine, and explained away the force of it, by raising refined dis-
tinctions. He said, the exclusion of risk occasioned by the act
of the assured's own government, was only an implied exclusion
from the reason and fitness of the thing, and might be rebutted by
circumstances. (d) The distinctions were afterwards pointedly
disclaimed, and the whole doctrine exploded, on a writ of error,
in the Exchequer Chamber; (e) and it was there established,
that it was no objection to the right of recovery by the insured,
that the loss happened by the act of the government of his
country, though he and the insurer were subjects of different
states. The latter rule has likewise, after a clear and accurate
review of the cases, been adopted as just and solid by the Supreme
Court of New York; and it was declared, that a subject was not
to be deemed a party to the legislative, and much less to the
judicial acts of his own country, so as thereby to deprive
*293 him of remedy on * a policy by a foreign insurance office,
by reason of any acts or judgments of his own country.
The contrary doctrine was founded on a fanciful and unreason-
able theory. (a) ¹
1
2. (Of interdiction of commerce.) — An interdiction of com-
merce with the port of destination, or a denial of entry by
the power at the port, or by a blockade, has been held not to be
a loss within the policy, by decisions in England and in this
country. The loss must be occasioned by a peril, acting upon
the subject insured immediately, and not circuitously, and a just
(c) Conway v. Gray, 10 East, 536; Mennett v. Bonham, 15 East, 477; Flind v.
Scott, ib. 525.
(d) Simeon v. Bazett, 2 Maule & S. 94.
(e) Bazett v. Meyer, 5 Taunt. 824; [Aubert v. Gray, 3 Best & Sm. 168.]
(a) Francis v. Ocean Ins. Company, 6 Cowen, 404; s. c. 2 Wend. 64.
1 Aubert v. Gray, 3 Best & Sm. 163, is
to the same effect, but it is intimated that
it might be otherwise if the embargo and
seizure by the government of the insured
was made in connection with hostility
between it and the country of insurers.
The Court of Exchequer Chamber also
observe, that they do not say, in case the
act of seizure was a lawful act under the
municipal law of Spain, that, as against
a Spanish subject, such seizure would be
within the insurance.
[400]
LECT. XLVIII.]
* 294
OF PERSONAL PROPERTY.
fear of capture is not sufficient. (b) But there are other cases
which have declared that an interdiction of commerce with the
port of destination by means of a blockade, or the possession of
the port by an enemy, was a peril within the policy. It is con
sidered a loss by restraint of princes which could not be resisted,
and operates as effectually as if the vessel was actually seized. It
would be unreasonable to require the insured to rush into danger
with the moral certainty of loss. (c) There is no doubt about
the general principle, that if the voyage be relinquished merely
through fear of capture, the loss is not covered by the policy.
The apprehension of capture or of any other peril in transitu is
no ground of abandonment. But a just fear of one of the perils
insured against has been deemed equivalent to the presence of
vis major, when it applied directly and effectually, as in the case
of a blockading squadron, so as to break up the voyage. The
danger was imminent, and might be said to be present and pal-
pable, as well as apparently remediless and morally certain. If,
therefore, the danger be so great as to amount to almost a
certainty of capture, it becomes a restraint in contempla- * 294
tion of the policy, and this is the doctrine which is best
supported by authority.
*
A warranty against illicit trade was introduced into some of
our American policies in 1788. It was intended to apply only to
seizures for breaches of the laws of trade, and the commercial
regulations of ports. It does not extend to seizures for offences
against the law of nations, nor to acts of lawless violence,
though committed under a pretext of some municipal regula-
tion; nor to arbitrary seizures under the pretence of illicit
trade, when in truth no such thing existed. It only applies to
(b) Hadkinson v. Robinson, 3 Bos. & P. 388; Lubbock v. Rowcroft, 5 Esp. 50,
Parkin v. Tunno, 11 East, 22; Richardson v. Maine Ins. Company, 6 Mass. 102; King
v. Delaware Ins. Company, 2 Wash. 300; Smith v. Universal Ins. Company, 6 Whea-
ton, 176; Story, J., in Andrews v. Essex Ins. Company, 3 Mason, 6.
(c) 1 Emerigon, 507-512; Symonds v. Union Ins. Company, 4 Dallas, 417; Schmidt
v. United Ins. Company, 1 Johns. 249; Craig v. United Ins. Company, 6 id. 226; Barker
v. Blakes, 9 East, 283; Olivera v. Union Ins. Company, 3 Wheaton, 183; Saltus v.
United Ins. Company, 15 Johns. 523; Thompson v. Read, 12 Serg. & R. 440; Simonds
v. Union Ins. Company, 1 Wash. 382; Vigers v. Ocean Ins. Company, 12 La. 362.
If the loss be occasioned by the illegal act of a foreign government, it is a loss within
the perils of the policy, even though the master refused to submit to the illegal order,
provided his actual conduct was bona fide in furtherance of the voyage. Williams v.
Suffolk Ins. Company, C. C. U. S. Mass., August, 1838; 3 Sumner, 270.
VOL. III.
26
[401]
* 295
[PART V.
OF PERSONAL PROPERTY.
protect the insurers against illicit trade actually carried on or
attempted. (a) ¹
1
3. (Of risks excluded by the usual memorandum.) — To pre-
vent disputes respecting partial losses, arising from the perish-
able quality of the goods insured, or from trivial subjects of
difference, it has been a general practice to introduce into pol-
icies a stipulation, by way of memorandum, that upon certain
enumerated articles the insurer should not be liable for any par-
tial loss whatever, and upon others for none, under a given rate
per cent.
This clause was first introduced into the English
policies about the year 1749. Before that time the insurer was
liable for every injury, however small, that happened to the thing
insured. In France, if there be no such express stipulation, the
Ordinance of the Marine, and the new code, provide that
*295 the insurer *shall not be liable, if the partial loss does
not exceed one per cent of the value of the article
damaged. (a)
•
The memorandum clause alluded to usually declares that the
enumerated articles, and any other articles that are perishable in
their own nature, shall be free from average under a given rate,
unless general, or the ship be stranded. In consequence of this
exception, all small partial losses, however inconsiderable, are to
be borne by a general average, provided they were incurred in a
case proper for such an average; and in Cantillon v. London
Assurance Company (b) it was held, that the exception amounted
to a condition, and that if the ship was stranded, the insured
(a) Faudel v. Phoenix Ins. Company, 4 Serg. & R. 29; Cucullu v. Orleans Ins.
Company, 18 Martin, La. 11.
(a) 3 Burr. 1551; Ord. de la Mar. tit. Assurances, art. 47; Code de Commerce,
art. 408.
(b) Cited 3 Burr. 1553.
1 Dole v. New England Mut. M. Ins.
Co., 6 Allen, 373, 394. It has been laid
down that the word "seizure" cannot be
confined to lawful seizure in warranties
of this sort. Kleinwort v. Shepard, 1 El.
& El. 447. But that case is explained and
somewhat doubted in a subsequent case
which determined that the warranty did
not include a mutinous taking possession
of the vessel by the crew. Greene v.
Pacific M. Ins. Co., 9 Allen, 217.
The warranty against capture was held
to include capture by a Confederate
cruiser during the rebellion. Mauran v.
Ins. Co., 6 Wall. 1; Dole v. N. E. M. M.
Ins. Co., 6 Allen, 373, and 51 Me. 465;
Swinnerton v. Columbia Ins. Co., 37 N.
Y. 174; Ionides v. Universal Mar. Ins.
Co., 14 C. B. N. s. 259. See, also, Powell
v. Hyde, 5 El. & Bl. 607; Monongahela
Ins. Co. v. Chester, 43 Penn. St. 491.
[ 402 ]
LECT. XLVIII.]
* 296
OF PERSONAL PROPERTY.
was let in to prove his whole partial loss. But in Wilson v.
Smith (c) that decision was overruled, and it was held that those
words did not make a condition, but only an exception; and that
in the case of stranding, and in all cases proper for a general
average, and in those cases only, the memorandum did not apply.
Afterwards, in Mason v. Skurray, (d) Lord Mansfield held the
same doctrine; and in Cocking v. Fraser, (e) the principle was
carried still further, and received its due expansion, and was
clearly and precisely defined. It was settled by a strong deter-
mination of the Court of K. B., that though a total loss may
exist, in certain cases, when the voyage is defeated, yet in case
of perishable articles within the memorandum, the insurer is
secure against all damage to them whether great or small, whether
it defeats the voyage, or only diminishes the price of the goods,
unless the article be completely and actually destroyed, so as no
longer physically to exist. Considering the difficulty of ascer-
taining how much of the loss arose by the perils of the
sea, and how much by *the perishable nature of the com-
* 296
modity, and the impositious to which insurers would be
liable in consequence of that difficulty, the rule of construction,
as settled in that case, is very salutary, by reason of its simplicity
and certainty.
But this decision was shaken, and the original doctrine of Lord
Ch. J. Ryder, in Cantillon v. London Assurance Company, revived
by the decision of the K. B., in Burnett v. Kensington, (a) which
declared, that if the ship be stranded, it destroyed the exception,
and let in the general words of the policy. It was also shaken
by the observations of Lord Alvanley, in Dyson v. Rowcroft, (b)
and of Lord Ellenborough, in Cologan v. London Assurance Com-
pany. (c) In our American courts, the doctrine of the case of
Cocking v. Fraser is the received law. It was explicitly and
pointedly recognized as a sound decision by the Supreme Court
of New York, in Maggrath v. Church, (d) and it has received
a similar sanction in subsequent cases, in that and in other
(c) 3 Burr. 1550.
(d) Park on Insurance, 160, [c. 6.]
(e) Park on Insurance, 151. In some of our American policies the exception in
these words, "or the ship be stranded," is omitted.
(a) 7 T. R. 210.
(c) 5 Maule & S. 447.
(d) 1 Caines, 196.
(b) 3 Bos. & P. 474.
·
[
403]
296
[PART V.
OF PERSONAL PROPERTY.
courts; (e)¹ and the weight of authority is in favor of the doctrine,
that in order to charge the insurer, the memorandum articles
(e) Neilson v. Columbian Ins. Company, 3 Caines, 108; Saltus v. Ocean Ins. Com-
pany, 14 Johns. 138; Marcardier v. Chesapeake Ins. Company, 8 Cranch, 39; Morean
v. United States Ins. Company, 1 Wheaton, 219; Skinner v. Western M. & F. Ins.
Company, 19 La. 273.
"
1 The Memorandum. (a) The clause
or the ship be stranded” is taken to mean
that if the ship be stranded while the
memorandum articles are on board, then
the underwriter is liable to pay all par-
ticular average losses, whether caused by
the stranding or not, just as though the
memorandum did not exist. Arnould,
4th ed. 739. In Roux v. Salvador, 3 Bing.
N. C. 266, 276, it was contended that it
was not material whether the stranding
took place whilst the goods insured were
on board or after they had been landed;
but the court were not prepared to adopt
that conclusion, although they did not
pass upon it.
(b) What is a Total Loss. Some other
American cases besides those cited in the
text have spoken of a destruction in specie
as necessary to make the insurers liable
for memorandum articles. But the loss
is in its nature total to him who has no
means of recovering his goods, whether
his inability arises from their annihilation,
or from any other insuperable obstacle.
Thus it is admitted by American as well
as English cases that if goods once dam-
aged by the perils of the sea, and neces-
sarily landed before the termination of
the voyage, are, by reason of that damage,
in such a state either that they cannot be
reshipped and carried on with safety, or
that they will not arrive at their point of
destination in specie, the circumstance of
their existing in specie at the forced ter-
mination of the risk is of no importance.
In the latter case, at least, the loss is not
constructively but absolutely total. The
goods could never arrive, and abandon-
ment is unnecessary. Roux v. Salvador,
3 Bing. N. C. 266, 279, 281; post, 320,
n. (e); Knight v. Faith, 15 Q. B. 649, 661;
Potter v. Rankin, L. R. 5 C. P. 341, 356,
375; Hugg v. Augusta Ins. Co., 7 How
595, 607; Williams v. Kennebec Mut. Ins.
Co., 31 Me. 455, 462; De Peyster v. Sun
Mut. Ins. Co., 19 N. Y. 272, 278; Tudor
v. N. E. M. M. Ins. Co., 12 Cush. 554;
Lord v. Neptune Ins. Co., 10 Gray, 109,
115; Ridyard v. Phillips, 4 Blatchf. 443.
Taking the English doctrine that the
memorandum does not vary the rules
upon which a loss shall be partial or total,
3 Bing. N. C. 278, with the decisions that
a constructive total loss of a ship is a total
loss within an insurance "against total
loss only," post, 331, n. 1; Heebner v.
Eagle Ins. Co., 10 Gray, 131; Greene v.
Pacific M. Ins. Co., 9 Allen, 217; Adams
v. Mackenzie, 13 C. B. N. s. 442; sed vide
Willard v. Millers' & M. Ins. Co., 24 Mo.
561; the further conclusion follows that
there may be a constructive as well as an
absolute total loss of memorandum ar-
ticles, and such seems to be the English
law. Arnould on M. Ins. 4th ed. 951;
Rosetto v. Gurney, 11 C. B. 176; Reimer
v. Ringrose, 6 Exch. 263. In a number of
American cases, however, a peculiar rule
seems to be thought applicable to memo-
randum articles. Hugg v. Augusta Ins.
Co., 7 How. 595, 605; Pierce v. Columbian
Ins. Co., 14 Allen, 320, 322; Depeyster
v. Sun Ins. Co., 17 Barb. 306; 2 Pars.
Mar. Ins. ch. 4, § 2, 113, n. Abandon-
ment would undoubtedly be necessary
upon a constructive total loss of memo-
randum articles, as in other cases of con-
structive total loss, although not upon an
absolute total loss, as has been said.
Knight v. Faith, 15 Q. B. 649, 661; Potter
v. Rankin, L. R. 5 C. P. 341, 371; Farn-
worth v. Hyde, L. R. 2 C. P. 204, 227; 18
C. B. N. s. 835, 856; post, 320. In Waller-
[ 404 ]
LECT. XLVIII.]
* 296
OF PERSONAL PROPERTY.
must be specifically and physically destroyed, and must not exist
in specie. It has been frequently a vexed point in the discussions,
stein v. Columbian Ins. Co., 44 N. Y. 204,
the English and earlier New York cases
were discussed. Cocking v. Fraser was
said to be overruled by the cases men-
tioned in the text, and by Roux v. Salva-
dor; and Maggrath v. Church was qualified
and explained. The necessity of a total
physical destruction of the memorandum
articles was denied, and a constructive
total loss was pronounced to be sufficient,
in accordance with the doctrine of Lord
Ellenborough in the text. It was held
enough to charge the insurers that it had
become impracticable to get at or send
the goods to their destination, at the time
of abandonment, in consequence of the
stranding of the vessel; meaning by im-
practicable, commercially impracticable,
as is explained in the note on abandon-
ment, post, 331, n. 1. In this case the
policy seems to have been in the form
mentioned 295, n. (e).
(c) Suing and Laboring Clause.-The
warranty against particular average in a
policy on goods excludes a recovery for
expenses incurred for the purpose of for-
warding the goods to their destination,
when they were not incurred in averting
an impending loss which would otherwise
have fallen upon the underwriters, such
as an actual or constructive total loss of
the goods, notwithstanding the policy
contains the usual English suing and
laboring clause. Post, 340, n. 1. Such
expenses can only be recovered from the
insurers of the goods, if at all, on the
ground that the disbursement for the
extra freight was part of the loss occa-
sioned to the owner by the perils insured
against, or, in other words, a particular
average on those goods, and therefore, if
there is a warranty against particular
average, the insurers will not be liable.
Great Indian Pen. R. Co. v. Saunders, 1
Best & Sm. 41, 51; 2 id. 266. But in a
policy on freight that warranty will not
prevent the assured from recovering under
the suing and laboring clause for the
expenses of conveying the cargo from the
place of disaster to its destination in
another vessel, after a total loss of the one
on which it was shipped. Kidston v.
Empire M. Ins. Co., L. R. 2 C. P. 357 ;
L. R. 1 C. P. 535.
(d) Destruction of a Part.-The doctrine
stated 299, n. (b), is now generally ac-
cepted, that when memorandum goods of
the same species are shipped, whether in
bulk or in packages, not expressed in the
policy to be separately insured, and there
is no general average and no stranding,
the destruction of a part is not a total loss
of part, but a partial loss of the whole.
The underwriters will not be liable, al-
though the part lost consists of one or
more entire packages, and they are en-
tirely destroyed or otherwise lost by the
perils insured against. Newlin v. Ins.
Co., 20 Penn. St. 312; Ralli v. Janson, 6
El. & Bl. 422, 446; Entwisle v. Ellis, inf.;
Hernandez v. Sun M. Ins. Co., 6 Blatchf.
317; Kettell v. Alliance Ins. Co., 10 Gray,
144, 154. The insured cannot get rid of
this principle in a policy on goods, e.g.
rice, “in ship or ships, to be declared free
from particular average," by indorsing a
declaration of interest with a separate
valuation of each bag of rice. He will
not by that means create a separate in-
surance on each bag. Entwisle v. Ellis,
2 Hurlst. & N. 549. But when there has
been a total loss of one species of memo-
randum articles, the insured will not be
prevented from recovering by the fact
that there are articles of wholly different
species which have not been totally lost.
Silloway v. Neptune Ins. Co., 12 Gray,
73, 85; Wilkinson v. Hyde, 3 C. B. N. s.
30, 45; Duff v. Mackenzie, ib. 16; Waller-
stein v. Columbian Ins. Co, 44 N. Y. 204,
216. So if goods of one kind, and insured
in one valuation on board a certain ship,
[405]
* 298
[PART V.
OF PERSONAL PROPERTY.
whether the insurer was holden, if the memorandum articles
physically existed, though they were absolutely of no value. The
dicta of some of the judges, in the cases referred to, are in favor
of the doctrine, that an extinguishment of the memorandum
articles in value, was equivalent to an extinguishment in specie;
and there is much plausible reasoning in favor of that
* 297 explanation of the rule. *Lord Ellenborough, in Cologan
v. London Assurance Company, expressed himself strongly
on the point, and declared that it could not be less a total loss
because the commodity subsisted in specie, if it subsisted only
in the form of a nuisance. There was a total loss of the thing,
if by any of the perils insured against it was rendered of no use
whatever, although it might not be entirely annihilated. (a)¹
If there be a total loss of the voyage by reason of shipwreck,
or any other casualty, and there be no other means to forward the
cargo, there is no distinction between the memorandum articles
and the rest of the cargo. The total loss applies equally to the
whole. (b) When part of the articles in the memorandum are
totally destroyed by the perils insured against, and the residue
remain partially damaged, it has been a very unsettled question,
whether the insured was entitled to recover for the part so totally
lost. The case of Davy v. Milford (c) is a strong deter-
*298 mination in favor of the recovery. It was said that there
was no case, nor no reason to maintain, that where the
*
(a) 5 Maule & S. 447; Parry v. Aberdein, 9 B. & C. 411. Mr. Benecke says, that
the prevalent opinion now is, that if the memorandum articles are, by sea damage, 、
rendered of no value, there is a total loss, though they exist in specie. And yet he
puts, and leaves unanswered, the question, whether, if a cargo of fish, valued at 100
pounds, be entirely rotten, and can be sold for one shilling, for manure, is that
deemed of any value? Benecke on Indemnity, 379. He might have answered in
the negative, for the cargo was of no value as fish, or in contemplation of the con-
tract.
(b) Manning v. Newnham, Condy's Marshall, 586; Cologan v. London Assurance
Company, 5 Maule & S. 447; Morean v. United States Ins. Company, 1 Wheaton,
219; Maggrath v. Church, 1 Caines, 214. And see Phillips on Insurance, ii. 467–510,
2d ed., where the cases are collected and stated; Poole v. Protection Ins. Co., 14 Conn.
47. The French Code, art. 409, exempts the insurer, under the clause, free from aver-
age for all partial losses, except in cases which authorize an abandonment; and in such
cases the insurer has the option between the abandonment and the claim for average
(c) 15 East, 559.
LOSS.
are transshipped in a case of necessity
into two vessels by the master, a total
loss of the cargo of one of them can be
recovered for. Pierce v. Columbian Ins.
Co., 14 Allen, 320.
1 See 296, n. 1.
[406]
LECT. XLVIII.]
* 299
OF PERSONAL PROPERTY.
least particle of the thing insured subsisted in specie, though.
the greater part was actually destroyed, the insured should be
precluded from recovering the value of that which was totally
lost. The language of some of the judges, afterwards, in Cologan
v. London Assurance Company, (a) was to the same effect. But
in opposition to that doctrine, we have the case of Hedburg v.
Pearson, (b) in which the hogsheads of sugar covered by the
memorandum were saved, but the greater part of the loaves in
each hogshead were washed out and destroyed by a peril of the
sea, and yet it was held to be only an average loss, and the
insurer wholly discharged. So, in Guerlain v. Col. Insurance
Company, (c) part of the memorandum articles (and which were
distinct kinds of provisions, and specifically enumerated in the
policy) were lost by shipwreck, and the insured was not allowed
to recover, on the ground that the insurance was upon so much
cargo as an integral subject, and the insurer was not liable for
any particular item, though it was totally lost. The court
referred to several decisions in the French tribunals, as reported
by Emerigon, (d) and to the doctrine of that writer by which it
appears, that in France, under the clause free of average, the
insurer is not holden, though part of the subject insured be totally
destroyed. The principle is, that the parties have a right to make
their own contracts, and if the contract be lawful, it becomes a
law to the court; and it would introduce uncertainty and con-
fusion to undertake to modify the contract (as they do in Italy,
under this very clause) (e) upon assumed principles of equity.
The cases of Biays v. The Chesapeake Insurance Company,
Morean v. The * United States Insurance Company, and * 299
of Humphreys v. The Union Insurance Company, (a) have
established the same rule, that the underwriter pays nothing if
the loss of the memorandum articles be partial and not total;
and it is partial only when part of the cargo arrives in safety,
however deteriorated in value, though another part of the cargo
had been wholly destroyed by disasters on the voyage. This
may now be considered as the settled law of this country on the
subject. (b)
(a) 5 Maule & S. 447.
(c) 7 Johns. 527.
(b) 7 Taunt. 154.
(d) 1 Emerigon, 662-670.
(e) Targa, c. 52, note 18; Casaregis, Disc. 47, n. 10.
(a) 7 Cranch, 415; 1 Wheaton, 219, 227, note; 3 Mason, 429.
(b) Wadsworth v. Pacific Ins. Company, 4 Wend. 33. In that case it was decided,
[ 407]
* 300
[PART V.
OF PERSONAL PROPERTY.
The French law requires that goods, subject by their nature
to particular detriment or diminution, be specified in the policy;
otherwise the insurer is not liable for the losses which may hap-
pen to those articles, unless the insured was ignorant of the nature
of the cargo at the time the contract was made. (c) This is a
valuable rule, calculated to guard against dispute and imposition.
4. (Of the usual perils covered by the policy.) — It will not be
necessary, nor will this course of instruction permit me to do
more than take notice of a few of the prominent perils which
accompany the voyage, and surround it with danger. The gen-
eral and sweeping clause in the policy which follows the list of
enumerated perils, "and of all other perils, losses, and misfortunes,
to the hurt, detriment, or damage of the goods, ship, &c.," cover
other cases of marine damage of the like kind with those specially
enumerated, and occasioned by similar causes. (d) 1
The ignorance or inattention of the master or mariners is not
one of the perils of the sea. (e) Those words apply to all
*300 *those natural perils and operations of the elements which
occur without the intervention of human agency, and
which the prudence of man could not foresee, nor his strength
resist. Quod fato contingit, et cuivis patrifamilias, quamvis dili-
gentissimo possit contingere. The imprudence, or want of skill in
the master, may have been unforeseen, but it is not a fortuitous
event. (a)¹ The insurer undertakes only to indemnify against
that the underwriter was not answerable for a partial loss on memorandum articles,
except for general average, unless there be a total loss of the whole of the particular
species, whether the particular article be shipped in bulk, or in separate boxes or pack-
ages. So, in Brooke v. Louisiana Ins. Company, 17 Martin, 530, where the insurance
was of a cargo of mules as memorandum articles, it was held, that there must be a
physical total loss of the whole number insured, to authorize a recovery. See 16
Martin, 640, 681, discussions on the same case; and Insurance Company v. Bland, 9
Dana, 156, to s. P.
(c) Ord. de la Mar. tit. Des Ass. art. 31; Code de Commerce, art. 355.
(d) Cullen v. Butler, 5 Maule & S. 461.
(e) Pothier, h. t., n. 64; Gregson v. Gilbert, Park on Insurance, 83; Lodwicks v.
Ohio Ins. Company, 5 Ohio, 433.
(a) In Straccha, Glossa, 22, casus fortuitus is defined to be accidens, quod per custo-
1 Davidson v. Burnand, L. R. 4 C. P.
117, 120, stated post, 302, n. 1; Palmer v.
Naylor, 10 Exch. 382; Monongahela Ins.
Co. v. Chester, 43 Penn. St. 491, 494;
Moses v. Sun Mut. Ins. Co., 1 Duer, 159,
172. As to what are perils of the seas,
see Dent v. Smith, L. R. 4 Q. B. 414.
1 Post, 302, n. 1. Other cases on the
difference between ordinary wear and
tear and accidents covered by the policy
are Magnus v. Buttemer, 11 C. B. 876;
Paterson v. Harris, 1 Best. & Sm. 336.
[ 408 ]
LECT. XLVIII.] OF PERSONAL PROPERTY.
* 300
extraordinary perils of the sea, and not against those ordinary
ones to which every ship must inevitably be exposed; but it is
often difficult to discriminate between damage occasioned by the
ordinary service of the voyage, and which falls upon the owner,
and by a peril of the sea, for which the insurer is responsible.
Damages resulting from the ordinary employment of the ship, or
the inherent infirmity of the article, as the loss of an anchor by
the friction of the rocks, or the wear and tear of the equipment
of the ship, or her destruction by worms, or the diminution of
liquids by the ordinary leakage to which they are naturally
diam, curam et diligentiam mentis humanæ evitari non potest. Santerna, de Ass. part 3,
n. 65, adds, ubi diligentissimus præcavisset, et providisset non dicitur proprie casus fortuitus.
In Andrews v. Essex Marine Ins. Company, 3 Mason, 26, and in the case of Cammann
v. N. Y. National Ins. Company, tried in the Superior Court in New York, in Decem-
ber, 1834, it was held to be an unsettled question, whether a loss proceeding from the
negligence of the captain would affect the policy as fully as fraud; and the proper rule
was suggested by Oakley, J., to be, that the neglect of the captain to use those pre-
cautions against damage, which a prudent man would have used under like circum-
stances, would be a case of gross negligence, within the meaning of the law. In the
case of Bolton v. American Ins. Company, tried in the Superior Court of New York,
before Ch. J. Jones, (November, 1835,) it was held, that the underwriters were liable
for a loss arising, not from negligence merely, but from gross negligence by the master.
But it is very difficult to draw the line of distinction between the cases where gross
negligence ends and ordinary negligence begins, or to distinguish between pure acci
dent and accident from negligence. The courts seem to be approximating in effect
to the French meaning of barratry, for they hold, that in a case not amounting to bar-
ratry within the meaning of the English law, if the proximate cause of the loss be a
peril enumerated, the insurer is liable, though the remote cause of that loss was the
negligence of the master or crew. Shore v. Bentall, 7 B. & C. 798, n.; Busk v. Royal
Exchange Ass. Company, 2 B. & Ald. 73; Walker v. Maitland, 5 B. & Ald. 171;
Bishop v. Pentland, 7 B. & C. 219; Redman v. Wilson, 14 M. & W. 476. In this last
case, the immediate cause of the loss was a peril of the sea, though the want of sea-
worthiness and the cause of the loss was remotely the negligence in the loading of
the vessel. Patapsco Ins. Company v. Coulter, 3 Peters, 222. See, also, infra, p. 307,
note, and 2 Sumner, 200. In Copeland v. N. E. Marine Ins. Co., 2 Met. 432, it was
decided, after great consideration, that if a vessel be seaworthy when the voyage
commences, and the master afterwards becomes incompetent from misconduct, and
the vessel be lost for that cause, the insurer was still held liable. Parke, Baron, in
Dixon v. Sadler, 5 M. & W. 405; Shore v. Bentall, note to 7 B. & C. 798, s. P., assum-
ing the act was not barratrous.
It was declared, in the American Ins. Co. v. Bryan, 26 Wend. 563, that in the case
of an insurance against barratry of the master and mariners, the assured is entitled
to recover if the loss happened by theft, without proving due diligence and skill on
the part of the master. The burden of proof of negligence, not barratrous in itself,
and yet causing the loss, is on the insurer, if he claims to be excused from liability
on the ground of the negligence or want of skill of the master or mariners. But in
Perrin v. Protection Ins. Co., 11 Ohio, 147, negligence in the agents of the insured
was held to be no defence to the insurer.
[ 409 ]
* 301
[PART V.
OF PERSONAL PROPERTY.
subject, or hemp taking fire in a state of effervescence, may be
mentioned as instances of losses which are not within the policy,
because they are not losses attributable to a casus fortuitus. (b)
It has even been a vexed question, whether damage done to a
ship by rats was among the casualties comprehended under perils
of the sea, and the authorities are much divided on the question.
The better opinion would, however, seem to be, that the
* 301 insurer * is not liable for this sort of damage, because it
arises from the negligence of the common carrier, and it
may be prevented by due care, and is within the control of
human prudence and sagacity. (a) ¹
1
When a missing vessel shall be presumed to have perished by
a peril of the sea depends upon circumstances, and there is no
(b) Valin, ii. 81; Pothier, des Ass. n. 66; 1 Emerigon, 390; Rohl v. Parr, 1 Esp.
444; Martin v. Salem Marine Ins. Company, 2 Mass. 420; Boyd v. Dubois, 3 Camp.
133. Mr. Phillips, in his Treatise on Insurance, i. 639, very properly adds, that if
the injury to the ship by worms arose from the loss, by a sea peril, of the protection
of the copper sheathing, the insurer may reasonably be charged. But if the loss of
the sheathing might have been repaired, before the vessel became exposed to the
action of the worms, it was an act of negligence in the master, which would exoner-
ate the underwriter. Hazard v. N. E. Marine Ins. Company, 1 Sumner, 218. The
insurer is liable for all accidents arising from any extraordinary circumstances or
cause, and not from the inherent weakness or ordinary wear and tear of the vessel.
Potter v. Suffolk Ins. Company, 2 Sumner, 197; Fletcher v. Inglis. 2 B. & Ald. 315.
In the case of McCargo v Merchants' Ins. Co., before the Supreme Court of Louis-
iana, February, 1845, [10 Rob. (La.) 334,] it was held, that in a policy on a cargo of
slaves, the insurer is not liable for a loss from an insurrection or mutiny of the slaves,
unless there was an express assumption of risk from an insurrection, for that arises
from the inherent vice of the subject insured; and this was held to be the English
law. It was the case of the Creole, and the policy stated that the insurer should
not be liable "for suicide, desertion, or natural death, but chiefly for the risk of
detention, capture, and seizure of foreign power."
(a) Dale v. Hall, 1 Wils. 281; Hunter v. Potts, 4 Camp. 203; Aymar v. Astor, 6
Cowen, 266; Roccus, de Ass. n. 49; Cleirac, sur le Guidon, c. 5, art. 8, and Emeri-
gon, i. 377, 378, who cites the Dig. 19. 2. 13. 6, and Casaregis, Straccha, Santerna,
Kuricke, and Targa may all be considered as maintaining the principle that the
owner, and not the insurer, is holden for an injury by rats; and the only case that I
have met with directly to the contrary is Garrigues v. Coxe, 1 Binn. 592. The opin-
ion of Santerna, de Ass. pt. 4, n. 31, 32, is not consistent with his own principles,
for, while he admits that an injury by rats cannot properly come under the name of
casus fortuitus; magis est improvisus proveniens ex alterius culpa, quam fortuitus, he still
concludes it to be a peril generally and absolutely assumed, when not controlled by
usage.
1 Laveroni v. Drury, 8 Exch. 166 (see
Kay v. Wheeler, L. R. 2 C. P. 302, where
the question whether the owner of a ship
trading between a foreign and an English
port is liable to all the responsibilities of
a common carrier is expressly left open);
ante, 217, n. 1.
[410]
LECT. XLVIII.]
• 302
OF PERSONAL PROPERTY.
precise time fixed by the English law. (b) In the French law, a
vessel not heard from is presumed to be lost after the expiration
of one year in ordinary voyages, and of two years in long ones. (c)
The ordinances of foreign states have been very arbitrary on this
point. Thus, by the ordinance of Hamburg, a ship was presumed
to be lost, if bound to any place in Europe, and not heard from
in three months; and by the Recopilacion des Loyes de Indias, in
Spain, if a vessel which goes to the Indies is not heard from
within a year and a half, it is presumed to be lost. (d) In the
case of missing vessels, the loss is presumed to have happened
immediately after the date of the last news; so that if an insur-
ance be for three months, and the vessel not being heard from,
a further insurance is made for a year, and the vessel
*is never heard from, in that case the first insurer pays
the loss. (a)
* 302
What degree of peril changes it from an ordinary to an extraor-
dinary character, so as to bring it within the stipulation of indem
nity, is frequently a perplexing question, to be determined by the
circumstances of the particular case. And to prevent uncertainty
and dispute, it is a settled rule, that the peril, whatever it may be,
upon which the policy attaches, must be the proximate, and not
the remote cause of the loss. Causa proxima non remota specta-
tur. (b) If a ship be driven ashore by the wind, and in that
¹
(b) Green v. Brown, Strange, 1199; Brown v. Neilson, 1 Caines, 525; Gordon v
Bowne, 2 Johns. 150; Houstman v. Thornton, Holt, N. P. 242.
(c) Code de Commerce, art. 375.
(d) 1 Magens, 89, 90; Institutes of the Civil Law of Spain, b. 2, tit. 17, c. 1.
(a) Boulay-Paty, iv. 246.
(b) Walker v. Maitland, 5 B. & Ald. 171. It is upon the principle mentioned in
the text, that the insurer on goods is not liable when they are sold by the captain of
1 Causa proxima non remota spectatur.
(a) Instances in which this is applied
are Ionides v. Universal M. Ins. Co., 14
C. B. N. s. 259; Marsden v. City & County
Ass. Co., L. R. 1 C. P. 232; Taylor v.
Dunbar, L. R. 4 C. P. 206; Montoya v.
London Ass. Co., 6 Exch. 451; Woodruff
v. Commercial M. Ins. Co., 2 Hilton, 122;
Palmer v. Naylor, 10 Exch. 382; 8 Exch.
739; Dyer v. Piscataqua F. & M. Ins. Co.,
53 Me. 118. Cases of fire insurance are
St. John v. American Mut. Ins. Co., 11
N. Y. (1 Kern.) 516; Everett v. London
Assurance, 19 C. B. N. s. 126; Huckins v.
Peoples' Mut. F. Ins. Co., 11 Foster (31
N. H.), 238; Hillier v. Allegheny County
Mut. Ins. Co., 3 (Barr) Penn. St. 470,
commented on by Case v. Hartford F. Ins.
Co., 13 Ill. 676. See, as to the derivation
and various applications of Lord Bacon's
maxim, a learned and able article by Mr.
N. St. John Green of the Boston bar, 4
Am. Law Rev. 201. Although it has led
to error in actions of tort and of con-
tract where the defendant has caused
the damage complained of by his wrong-
[411]
* 302
[PART V.
•
OF PERSONAL PROPERTY.
situation be captured by an enemy, the loss is to be imputed to
the capture, and not to the stranding. (c) When a partial loss is
a ship to defray the expenses of repairs, rendered necessary by a tempest. Powell
v. Gudgeon, 5 Maule & S. 431; Sarquy v. Hobson, 4 Bing. 131. Damages to another
vessel by collision, in which the vessel insured, according to the admiralty rule, in
a case of mutual error, was bound to bear half the damage, were held by the
K. B. not chargeable upon the insurer, for the proximate injury is what the insurer
has to sustain, and not what the ship has to pay for damages to another, by an
accident remote and incidental. De Vaux v. Salvador, 4 Ad. & El. 420. This
decision was examined and questioned by Mr. Justice Story, in the case of Peters
v. Warren Ins. Co., in the C. C. U. S. for Massachusetts, in October, 1839, 3
Sumner, 389; 1 Story, 463; [14 Peters, 99,] s. c. In this case it was held, that an
accidental collision with a foreign vessel was not a case of general average by the
American law, unless the loss be a sacrifice voluntarily incurred for the common
benefit. 2 Phillips on Insurance, 2d ed. 181-190. In that case the ship Paragon came
in collision in the river Elbe with the Galliot Franc Anna, and sunk her; no fault on
either side. The Marine Court at Hamburg apportioned one half of the loss upon
the Paragon, which the master was compelled to pay, and for which the underwriters
were held liable, on the ground that the damages apportioned on the Paragon were
a direct and proximate effect of the collision. The great point in discussion was, not
the principle that causa proxima non remota spectatur, but its application. Lord Bacon
(Maxims of the Law, regula 1) gives this sound reason for the maxim, that "it were
infinite for the law to consider the causes of causes, and their impulsions one of
another; therefore, it contenteth itself with the immediate cause." The French
codes and jurists, in a case of mere accident by collision, without the fault of either
party, and where the damages are apportioned, declare that the insurers bear the part
of the damages which belong to the vessel insured by them. Emerigon, Valin,
Pothier, Boulay-Paty, and Estrangin, the commentator on Pothier, all concur in this
rule, and it appears to me that the decision of Mr. Justice Story was well sustained
by just reasoning and sound authority.
(c) Green ". Elmslie, Peake, 212. In Hahn v. Corbett, 2 Bing. 205, a ship was
stranded, and in that condition captured, and the proxima causa was held in that case
to be the shipwreck, and not the capture, as the former was a total loss. So, if a ship
be captured, and while under capture is destroyed by fire, or accident, or negligence
of the captors, the loss is attributable to the capture, for the subsequent loss was inci-
dental, and a natural consequence of the capture. Magoun v. N. E. Marine Ins. Co.,
1 Story, 157.
ful act, it seems peculiarly applicable to
insurance as a rule of construction to
determine in what cases indemnity is
promised. 14 C. B. N. s. 285; 3 Hurlst.
& C. 291.
(b) Negligence of Assured.—The maxim
is applied to determine the effects of the
negligence of the assured or his agents.
Thus, if the negligence of the master and
mariners, not amounting to barratry (post,
305, n. 1), is the proximate cause of the
loss, it is generally admitted that the
assured cannot recover, which seems to
be only another way of saying that such
negligence is not one of the perils insured
against. On the other hand, if the prox-
imate cause is a peril insured against, it
is now settled that the insurers will be
liable, although the accident was due more
remotely to the negligence of the crew, or
of the assured himself. 288, n. 1; 289, n.
1; 300, n. (a); 304, n. (h); 307 and n. (a);
376, n. 1; Dixon v. Sadler, 5 M. & W.
405, 414; 8 M. & W. 895; Biccard v.
Shepherd, 14 Moore P. C. 471, 493; Ar-
nould, 4th ed. 665, 668; Nelson v. Suffolk
[412]
LECT. XLVIII.]
* 302
OF PERSONAL PROPERTY.
followed by a total loss, the former may be considered as merged
in the latter. The courts are not to be seeking about for odds
Ins. Co., 8 Cush. 477, 496; Parkhurst v.
Gloucester Mut. Fish. Ins. Co., 100 Mass.
301, 305; General Mut. Ins. Co. v. Sher-
wood, 14 How, 351, 366; Mathews v.
Howard Ins. Co., 1 Kern. (11 N. Y.) 9, 15;
Atkinson v. Great Western Ins. Co., 5
Alb. L. J. 252; Street v. Augusta Ins.
Co, 12 Rich. 13; American Ins. Co. v.
Insley, 7 Penn. St. (Barr) 223; Georgia
Ins. & T. Co. v. Dawson, 2 Gill, 365;
Phoenix Fire Ins. Co. v. Cochran, 51 Penn.
St. 143; Hagar v. N. E. M. M. Ins. Co., 59
Me. 460; Fireman's Ins. Co. v. Powell, 13
B. Mon. 311. In Davidson v. Burnand,
L. R. 4 C. P. 117, damage to cargo by
seawater through the waste pipe, which
had been negligently left open by the
crew whilst the vessel was loading in port,
was held to be covered by a policy in the
usual form. The loss was caused by a
peril ejusdem generis as a peril of the sea,
and there was thought to be no distinction
between an accident so caused which
was due to the negligence of the crew and
one which was due to the negligence of
the crew of another vessel. A peculiarly
happy illustration is furnished by cases of
collision due to the negligence of the mas-
ter and mariners of the vessel insured,
which have been much discussed since
note (b) was written. The underwriters
will be liable for the damage done to the
insured vessel, because that is directly
caused by the collision; but according to
the weight of authority they are not liable
for the amount the insured owner is com-
pelled to pay the other vessel, because his
obligation to pay does not flow directly
from the peril alone, but only from that
in conjunction with his own or his ser-
vant's negligence. General Mut. Ins. Co.
v. Sherwood, 14 How. 351, 364; Mathews
v. Howard Ins. Co., 1 Kern. (11 N. Y.) 9;
Street v. Augusta Ins. Co., 12 Rich. (S.
C.) 13; Ionides v. Univ. Mar. Ins. Co., 14
C. B. N. s. 259, 290, 291; Xenos v. Fox,
L. R. 3 C. P. 630, 635; 4 id. 665. Contra,
Nelson v. Suffolk Ins. Co., 8 Cush. 477;
Blanchard v. Equitable Safety Ins. Co.,
12 Allen, 386.
(c) Concurring Causes. It must be
observed, however, that the insurers could
not avoid paying the last mentioned sum
on the strength of the rule causa proxima
alone, as the negligence of the assured
and the sea peril were concurring and
equally proximate causes of the loss.
Other instances of which the same is true
may be found, although they are not very
common. Currie v. Bombay Native Ins.
Co., L. R. 3 P. C. 72. When a collision
brought on a fire and both simultaneously
did damage, but the direct consequences of
the fire could be discriminated from those
of which the collision was the causa prox-
ima, the liability of insurers against fire
was easily ascertained by the ordinary
rule. Insurance Co. v. Transportation
Co., 12 Wall. 194, affirming s. c. 6 Blatchf
241; 34 Conn. 561.
(d) The maxim suffices for the solution
of Green v. Elmslie, and Hahn v. Corbett,
referred to in note (c), which are distin-
guished by the fact that in the former the
ship was not hurt by the stranding, and
would have been in perfect safety had it
been driven on any other coast but that
of an enemy; while in the latter the ship
and cargo were a total loss before capture;
the ship was totally disabled and the
goods would have been lost in the sea, if
they had not been carried off by the
enemy. See also Palmer v. Naylor, 10
Exch. 382. In an intermediate case, the
insurers were held liable for the portion
of the cargo necessarily lost by the strand-
ing, but not liable for what was saved, or
for what would have been saved by
United States wreckers if they had not
been prevented by Confederate troops,
the policy containing a warranty against
all consequences of hostility. Ionides v.
Univ. Mar. Ins. Co., 14 C. B. n. s. 259.
(This case also shows that the maxim
[413]
* 303
[PART V.
OF PERSONAL PROPERTY.
and ends of previous partial losses, when there is an overwhelm-
ing cause of loss which swallows up the whole subject-matter. (d)
So, on the other hand, if the first loss be distinct and total, and
be followed by abandonment, the rights of the parties are fixed,
and the courts are not to cast their eyes forward to see what
further perils awaited the property. (e)
By the rule and practice in the United States, the wages and
provisions of the crew during the necessary detention of the ves-
sel for repairs requisite in the course of the voyage, by reason
of perils insured against, are considered as included in
*303 the perils of the sea, and made chargeable upon the
insurer; (a) and we have already seen (6) how far wages
(d) Livie v. Janson, 12 East, 648.
(e) Schieffelin v. N. Y. Ins. Company, 9 Johns. 27.
*
(a) Walden v. Le Roy, 2 Caines, 263; Barker v. Phoenix Ins. Company, 8 Johns.
307; Padelford v. Boardman, 4 Mass. 548; Clark v. United Fire and Marine Ins. Com-
pany, 7 Mass. 365. [Contra, May v. Delaware Ins. Co., 19 Penn. St. 312.] In Guz-
zam v. Cincinnati Ins. Company, 6 Ohio, 73, it was held, that in a policy on time, the
insurer was not liable for the wages of the crew, while the vessel is stranded within
the time.
The wages were considered to be the ordinary expense. Webb v. Protec
Ins. Company, ib. 456, s. P. But in the case of Potter v. The Ocean Ins. Company,
3 Sumner, 27, Judge Story held, that it made no difference in the application of the
principle, that the wages and provisions of the crew, while the vessel went into port
to repair, constituted a general average, when the insurance was on time; nor that
there happened to be no cargo on board, and consequently no contribution by cargo
or freight. The principle calling for a general average existed, when there was a
common sacrifice for the benefit of all.
applies not only to the contract of insur-
ance, but to the exceptions, the words of
which are construed as they would be if
the assured had reinsured his cargo against
the perils excepted by the warranty. Ib.
285. But an opposite opinion is expressed
on the latter point in St. John v. American
Mut. Ins. Co., 11 N. Y. 516; Insurance
Co. v. Transportation Co., 12 Wall. 194,
200.)
(e) Partial followed by Total Loss.
Livie v. Janson, which is cited by the
author to the effect of a total loss following
a partial loss, is condemned in 1 Phillips
on Ins. § 1136, but is explained and upheld
in England, 14 C. B. N. 8. 294; Lidgett v.
Secretan, L. R. 6 C. P. 616, 625. In the
latter case it is said that if the underwriter
pays the total loss, he pays all he has
(b) Supra, 236.
agreed to, except under the suing and
laboring clause. If, during the currency
of the policy, and after a partial loss which
has not been repaired, the vessel is totally
lost by a peril excepted out of the policy,
in respect of which the owner was his own
insurer, the underwriter must be con-
sidered by the terms of the contract to be
in the same position as if he had so in-
sured and paid for a total loss, and there
is no claim against him for a partial loss.
This is said to be the case of Livie v.
Janson. But the rule is limited to a total
loss during the time covered by the policy,
and the doctrine of merger is not extended
to a total destruction of the ship after the
policy has expired. See also Knight v.
Faith, 15 Q. B. 649, 668.
[414]
LECT. XLVIII.] OF PERSONAL PROPERTY.
* 303
and provisions constitute an item of general average in the cases of
capture, embargo, or detention. But I cannot undertake to specify
more particularly the various kinds of losses which are deemed to
be covered by the general stipulation to indemnify against perils
of the sea. Many subtle distinctions have been raised and dis-
cussed in the books on this point, and several of them have been
stated or referred to by Mr. Phillips. (c)
The enumerated perils of the sea, pirates, rovers, thieves, include
the wrongful and violent acts of individuals, whether in the open
character of felons, or in the character of a mob, or as a mutinous
crew, or as plunderers of shipwrecked goods on shore. (d) The
theft that is insured against by name, means that which is accom-
panied by violence (latrocinium), and not simple theft; furtum
non est casus fortuitus. (e) But the stipulation of indemnity
(c) Phillips's Treatise on Insurance, i. 635-647.
(d) Nesbitt v. Lushington, 4 T. R. 783; Brown v. Smith, 1 Dow, 349; Bondrett
v. Hentigg, Holt, N. P. 149; [Palmer v. Naylor, 10 Exch. 382; 8 Exch. 739.] Pirates,
rovers, thieves, are perils expressly mentioned in the policy; but in the early history
of insurance, it was quite a vexed question, whether they were included among the
general perils of the sea; and Santerna, and after him Straccha, have noticed the
discussions, and compiled learning on the point. It was conceded, that piracy was a
casus fortuitus of the sea, but not theft. Santerna, de Ass. & Spons. pt. 3, n. 61–65;
Straccha, Glossa, 22, passim. Piracy, according to the old authorities, was held to be
included in the perils of the sea. 2 Roll. Abr. 248, pl. 10; Comb. 56. But as piracy
is now among the enumerated perils in policies, the point is of no importance.
(e) Boulay-Paty, iv. 35; Roccus, n. 42; Emerigon, i. c. 12, sec. 29. These cases
refer to simple theft committed on board the vessel, and which the law presumes
might have been prevented by due vigilance in the master. It is now held, that the
clause in the modern policies against loss by thieves applies to the acts of thieves who
stole from the ship while she lay at the wharf, but who had no connection with the
ship, though the master and ship-owners might also be liable as common carriers. It
need not now be shown that the goods were taken by assailing thieves, by violence
from without. It seems to be intimated that the clause might even apply to simple
theft by persons belonging to the ship. The Atlantic Ins. Co. v. Storrow, 5 Paige,
293. This decision overrules all the old authorities and text books, for they all apply
the term furtum, or simple theft, as well as latrocinium, or robbery, to assailants from
without the ship, and exclude from the policy simple theft, as not being properly a
casualty. All the English text writers follow the same rule, as Malynes (Lex Mer.
c. 25), Molloy (de Jur. Mar. b. 2, c. 7, sec. 7), Beawes (Lex Mer. 313), Weskett (on
Ins. tit. Theft), Park (30, 31), Millar (145, 146), and Marshall (by Condy, i. 243).
Park, in his 6th ed., says that the English law is silent on the subject. The decision
by Chancellor Walworth may be reasonable, and it is according to the popular
acceptation of the word thieves, but it is against all the text authorities, foreign and
domestic. It is also in contravention of the principle that thefts are not casualties;
and it may be a matter of questionable policy whether the owners and masters of
ships ought to be indemnified against thefts of goods under their own care, and occa-
Bioned by their own lack of vigilance. This decision was followed in Bryan v. The
[415]
* 304
[PART V.
OF PERSONAL PROPERTY.
against takings at sea, arrests, restraints and detainments of all
kings, princes, and people, refers only to the acts of government
for government purposes, whether right or wrong. An arrest in
the domestic port, after the voyage commenced, justifies an
abandonment; but if made before the risk commenced,
*304 the contract is discharged. (a)
*
An arrest by the admiralty process, at the instance of an
individual, on a private claim, is not a case within the policy;
and it is to be presumed the Court of Admiralty would indemnify
the owner or insured in the award of costs and charges against
the unjust 'prosecutor. (b) It is a very ancient rule, that the
insurer does not run the risk of obstructions occasioned by the
debts or misconduct of the assured. (c) Under the insurance
against fire, it is held, that if the ship be burnt under justifiable
circumstances, to prevent capture, or from an apprehension of a
contagious disease, the insurer is liable. (d) If sails and rigging,
put on shore while the vessel is repairing at a foreign port, be
burnt, they are covered by the policy. (e) It has likewise been
held, after a very learned discussion, that the insurer is answer-
able for a loss by fire occasioned by the negligence of the master
and mariners. (f)¹ This decision is subsequent to that of Grim
American Ins. Co., in the Superior Court of New York, in April, 1840, where it was
held, that an insurance against thieves, and barratry of the master and crew, covered
a loss by simple theft on the voyage, unaccompanied with force. s. c. affirmed on
error; American Ins. Co. v. Bryan, 1 Hill (N. Y.), 25. See, also, 26 Wend. 563;
Marshall v. Insurance Co., 1 Humph. (Tenn.) 99. It is intimated, in the learned dis-
cussions in the case of The American Ins. Co. v. Bryan, that a contrary doctrine in
the elementary works was probably advanced, without adverting to the difference in
the terms of the European and American policies.
1
(a) Boulay-Paty, iv. 238. [See Lozano v. Janson, 2 El. & El. 160, 176.]
(b) Nesbitt v. Lushington, supra; Ord. of Hamburg, 2 Magens, 218.
(c) Le Guidon, c. 2, sec. 7
(d) Pothier, h. t., n. 53; Targa, c. 56; Emerigon, i. 434; 2 Valin, 75; Gordon v.
Rimmington, 1 Camp. 123.
(e) Pelly v. Royal Exchange Assurance Company, 1 Burr. 341. [See Harrison v.
Ellis, 7 El. & Bl. 465, 480.]
(f) Busk v. Royal Exchange Assurance Company, 2 B. & Ald. 73. See, also,
1 The cases cited in the note (ƒ) are
those which are cited by Baron Parke, as
establishing that the assured makes no
warranty that the vessel shall continue sea-
worthy, or that the master or crew shall
do their duty during the voyage. Dixon
v. Sadler, ante, 288, n. 1. The principle, as
stated in the text, is simply an illustration
of the rule that the proximate cause of
the loss, only, is considered. Ante, 302,
n. 1. Grim v. Phoenix Ins. Co. is no longer
law even in New York. Mathews v.
Howard Ins. Co., 1 Kern. (11 N. Y.) 9, 14.
See, as to captures, ante, 294, n. 1.
[416]
LECT. XLVIII.]
305
OF PERSONAL PROPERTY.
v. Phoenix Insurance Company, (g) in which it was held, after a
discussion equally searching and elaborate, that a loss by fire,
arising from carelessness, was not covered by the insurance.
The French law coincides with the English decision. (h) Every
species of capture, whether lawful or unlawful, and whether by
friends or enemies, is also a loss within the policy. Barratry is
a peril specially insured against; and Lord Mansfield thought
it very strange that the underwriter should undertake
* to indemnify against the misconduct of the master, who * 305
is the agent of the insured, and subject to his control. (a)¹
Walker v. Maitland, 5 id. 171; and Bishop v. Pentland, 7 B. & C. 219, s. P.; Gilmore
v. Carman, 1 Smedes & M. 279. In this last case it was held, that owners of steam-
boats engaged in the carrying trade on the Mississippi were responsible as common
carriers, and that a loss by fire was not within the exception of acts of God, and not
within the exception of dangers of the river. It is not inevitable, and may be coun-
teracted by human sagacity. See, also, infra, p. 306. It may be here added, that
loss of goods by spontaneous ignition is not covered by the policy. Boyd v. Dubois,
3 Camp. 133.
(g) 13 Johns. 451.
(h) Boulay-Paty, iv. 23. The rule appears to be settled by the weight of authority
in the United States, that in a marine policy in which fire is expressly insured against,
the insurer is answerable for a loss by fire, occasioned by the negligence of the mas-
ter or crew. Patapsco Ins. Company v. Coulter, 3 Peters, 222; Columbia Ins. Com-
pany v. Lawrence, 10 id. 517; Waters v. Merchants' Ins. Company, 11 id. 213.
(a) We are told by Roccus, de Ass. n. 89, that barratry is expressly excepted in
the policies at Naples. So, by the ordinance of Philip II. for Antwerp, and by the
usage at Rotterdam and Cadiz, barratry in the captain or mariners was not insurable.
On the other hand, at Hamburg, and Genoa, and Bilboa, it might be insured against.
Emerigon, des Ass. i. 366, 367; Ord. de Bilboa, c. 22, n. 19. In the Institutes of the
Civil Law of Spain, by Asso & Manuel, b. 2, tit. 17, c. 1, it is laid down that the
insurer is not liable for damages arising from the fault of the captain or pilot. In
some of our American policies, the risk from barratry is qualified; it is, "Barratry
of the master (unless the assured be owner of the vessel) and mariners.”
1 Barratry.
Since the text was writ-
ten it has been decided that barratry is one
of the usual marine risks, and is covered
by a policy which does not state explicitly
the perils insured against. Ante, 291, n. 1;
Parkhurst v. Gloucester Mut. Fishing Ins.
Co., 100 Mass. 301.
The statement in the text as to the
meaning of the term barratry in American
law is confirmed after a most elaborate
examination not only of the cases, but of
words derived from the same Sanscrit root
in many languages, by Daly, C. J., in At-
VOL. III.
27
kinson v. Great Western Ins. Co., 5 Alb.
L. J. 252. See also Lloyd v. General Iron
Screw Collier Co., 3 Hurlst. & C. 284, 293;
Grill v. General Iron Screw Collier Co.,
L. R. 3 C. P. 476; L. R. 1 C. P. 600. It
has been held that the settled meaning of
barratry does not include acts by a mas-
ter who is also owner, even a part owner.
Wilson v. General M. Ins. Co., 12 Cush.
360. But in England it was held that a
part owner can commit barratry. Jone
v. Nicholson, 10 Exch. 28.
[417]
306
[PART V.
OF PERSONAL PROPERTY.
It means a fraudulent breach of duty on the part of the master,
in his character of master, or of the mariners, to the injury of the
owner of the ship or cargo, and without his consent, and it
includes every breach of trust committed with dishonest views. (b)
Barratry is used by the French writers in its larger sense, as
comprehending negligence, as well as wilful misconduct; (c)
therefore, no illustration can be safely drawn from the French
authorities, when the term is used as in the English and Amer-
ican law in a more limited sense, and applicable only to the wilful
misconduct of the master or mariners. To trade with an enemy
without leave of the owner, though it be intended for his benefit,
or for a neutral to resist search, though his motive be to serve
the owner, or for a letter of marque to cruise, and take a prize,
though done for the benefit of the owner, if the ship be lost by
reason of the acts, are all of them acts of barratry. So, sailing
out of port in violation of an embargo, or without paying the
port duties, or to go out of the regular course upon a smug-
gling expedition, or to be engaged in smuggling against the con-
sent of the owner, are all of them acts of barratry, equally with
more palpable and direct acts of violence and fraud, for they are
wilful breaches of duty by the master, in his character of master,
to the injury of the owner. (d) It makes no difference in
*306 the reason of the thing, * whether the injury the owner
suffers be owing to an act of the master, induced by motives
of advantage to himself, or of malice to the owner, or a disregard
(b) Aston, J., Cowp. 155; Willes, J., 1 T. R. 259; Lord Ellenborough, in Earle
v. Rowcroft, 8 East, 126, 2 Maule & S. 172; Stone v. National Ins. Company, 19 Pick.
36, 37; Cook v. Comm. Ins. Co., 11 Johns. 40.
(c) Pardessus, Cours de Droit Com. iii. n. 772.
(d) Stamma v. Brown, Strange, 1173; Knight v. Cambridge, as cited by Lord
Mansfield, in Cowp. 153, and by Lord Ellenborough, in 8 East, 135, 136; Vallejo v.
Wheeler, Cowp. 143; Robertson v. Ewer, 1 T. R. 127; Havelock v. Hancill, 3 T. R.
277; Moss v. Byron, 6 T. R. 379; Phyn v. Royal Exchange Assurance Company, 7
T. R. 505; Earle v. Rowcroft, 8 East, 126; Hood v. Nesbit, 2 Dallas, 137; Kendrick
v. Delafield, 2 Caines, 67; Brown v. Union Ins. Company, 5 Day, 1; Cook v. Com-
mercial Ins. Company, 11 Johns. 40; Grim v. Phoenix Ins. Company, 13 Johns. 451;
Wilcocks v. Union Ins. Company, 2 Binney, 574; Millaudon v. New Orleans Ins. Com-
pany, 11 Martin (La.), 602; Abbott on Shipping, 5th Am. ed. Boston, 1846, 243. The
insurer is answerable for a loss from barratry of the master, in attempting to smug-
gle, though the policy contains a warranty by the assured against illicit or prohibited
trade. Suckley v. Delafield, 2 Caines, 222; American Ins. Co. v. Dunham, 15 Wend. 1.
But deviation, through mere ignorance or a mistaken sense of duty, is not barratry.
Phyn v. Royal Ex. Ass. Co., 7 T. R. 505; Wiggin v. Amory, 14 Mass. 1; Hood v.
Nesbit, sup.
[418]
LECT. XLVIII.]
* 307
OF PERSONAL PROPERTY.
of those laws which it was the master's duty to obey, and which
the owner relied upon him to observe. It is, in either case,
equally barratry. If the ship be barratrously taken out of her
course, that act takes the whole property from the possession of
the insured, and produces a total loss. (a) But it is requisite
that the loss resulting from the barratry must actually happen
during the continuance of the voyage; and if the ship be not
seized for a smuggling act until she has been moored twenty-
[four] hours in safety at the port of destination, the insurer is
discharged. (b)
We have seen that it is a vexed question, rendered the more
perplexing by well balanced decisions, and in direct opposition
to each other, whether a loss by fire proceeding from negligence,
be covered by a policy insuring against fire. It has been made a
question, also, whether a loss by any other peril in the policy,
operating immediately and proximately upon the property, be
chargeable upon the insurer, when the remote cause of that loss
was the negligence or misconduct of the master and mariners,
not amounting to barratry. Among a number of cases that bear
upon the question, the case of Cleveland v. Union Insurance Com-
pany (c) may be selected as a strong decision in favor of the
insurer; and the more recent case of Walker v. Mait-
*
land, (d) as one equally strong against him, on that very *307
point. The doctrine in the last decision seems to be gain-
ing ground as the prevalent and better opinion. (a) ¹
(a) Dixon v. Reid, 5 B. & Ald. 597.
(b) Lockyer v. Offley, 1 T. R. 252.
(c) 8 Mass. 308.
(d) 5 B. & Ald. 171.
1
(a) The authority of the case of Cleveland v. Union Ins. Company is much weak-
ened by the circumstances attending it, as stated by Mr. Justice Story, in Williams v.
The Suffolk Ins. Co., C. C. U. S. Mass., August, 1838; [3 Sumner, 270.] It has received,
however, a confirmation by the decision of the Supreme Court of Ohio, after a full and
learned discussion, in Fulton v. The Lancaster O. Ins. Co., 7 Ohio, pt. 2, 1, 25. It was
there decided, that a river insurance policy, without any clause against barratry, did
not cover a loss by a peril within the policy, the remote cause of which was the negli-
gence of the master or crew. The court went upon the authority of former decisions
in Ohio, and earlier English cases, and upon the principle that it was just and politic
to hold the insurer discharged, when the more remote cause of the loss was negli-
gence of the master or mariners, notwithstanding the immediate cause of the loss was
a peril insured against. But I apprehend that the rule, that causa proxima non remota
spectatur, has now become a controlling and settled rule, not only in the English, but
in the general American insurance law. The Supreme Court of Massachusetts,
1 It is perfectly settled now as has been explained, ante, 302, n. 1.
[ 419 ]
* 307
[PART V.
OF PERSONAL PROPERTY.
2. Of the Voyage in Relation to the Policy. (1) When the Pol-
icy attaches and terminates. The commencement and end of
the risk depend upon the words of the policy. The insurer
may
take and modify what risk he pleases. The policy may be on a
voyage out, or on a voyage in, or on the whole complex voyage
out and in; or it may be for part of the route, or for a limited
time, or from port to port, in an intermediate stage of the voy-
age. (b) If insurance on a ship be from such a place, the risk
does not commence until the vessel breaks ground. If at and
from, it then includes all the time the ship is in port after the
policy is subscribed, if the ship be at home; and if abroad, it
commences, according to a decision in Pennsylvania, only from
the time she has been safely moored twenty-four hours after her
arrival. (c) But if a ship be expected to arrive at a foreign port,
afterwards, in Delano v. The Bedford Ins. Company, 10 Mass. 354, recognized the
general rule, that the immediate and direct, not the remote or contingent cause of the
loss, was to be regarded in maintaining the right of the assured to recover; and in
the Supreme Court of the United States, the doctrine has been repeatedly declared,
in conformity with the English rule as laid down in the later cases. Patapsco Ins.
Company v. Coulter, 3 Peters, 222; Columbia Ins. Company v. Lawrence, 10 id. 517;
Waters v. M. L. Ins. Company, 11 id. 213; Williams v. Suffolk Ins. Co., 3 Sumner,
276, 277. Vide supra, 300, n., and infra, 374. Independent of all authority, the Ohio
rule would appear to be the most just, and the other the most practicable, convenient,
and certain. It is now adjudged in Ohio, in conformity to the decisions of the
Supreme Court of the United States, that on a policy of insurance on a steamboat
destroyed by the explosion of the boiler, arising from negligence of the master, and
other agents of the insured, the insurer was liable. Perrin v. Protection Ins. Co., 11
Ohio, 147.
་
(b) A policy on time insures no specific voyage, but covers any voyage within the
prescribed time, and the loss and damage the ship may sustain by the perils insured
against within the limited period. Bradlie v. The Maryland Ins. Company, 12 Peters,
378. A deviation does not apply to a policy on time, for it has no prescribed track.
Union Ins. Co. v. Tysen, 3 Hill, 118.
(c) Garrigues v. Coxe, 1 Binney, 592. In Pittegrew v. Pringle, 3 B. & Ad. 514,
the general principle was admitted to be, that if a ship quits her moorings, and removes,
though only to a short distance, being perfectly ready to proceed on her voyage, it is
a sailing on the voyage, though she be detained by some subsequent occurrence. It is
otherwise if she be not in a condition for the voyage, when she quits her moorings
and hoists sail. So, in Union Ins. Co. v. Tysen, 3 Hill, 118, the least locomotion, with
readiness of equipment and clearance, satisfies a warranty to sail, though the vessel
be afterwards driven back. It is otherwise in a warranty to depart, for that imports
an effectual leaving of the place. In Treadwell v. Union Ins. Co., 6 Cowen, 270, the
court said, that a policy at and from North Carolina to New York, did not attach, at
least as to seaworthiness, until the vessel had passed the boundary lines of the state,
though the voyage had commenced when the vessel sailed with the cargo from Per-
quimions' River, at or near the town of Hertford. in that state. This was giving too
narrow a construction to the words at and from; for though it had been justly held,
[420]
LECT. XLVIII.]
308
OF PERSONAL PROPERTY.
and be insured at and from that place, or from her arrival
there, other cases say the risk attaches from her *first *308
arrival. (a) The risk is usually made to continue until
the vessel has been anchored for twenty-four hours in safety, and
no longer; and the rule has been applied, though the loss pro-
ceeded from a cause, or death wound, existing before the ship's
that the warranty of seaworthiness has not the same extended application in as out
of port, while the vessel is dismantled, and undergoing necessary repairs, (Smith v.
Surridge, 4 Esp. 25,) yet, to every reasonable extent, such a policy covers the risk
of the vessel while within port, or within the line of the state.
But a policy on a vessel, at and from her port of lading, means one indicated port or
place only, and going to another within seven miles, after she had begun to take in
cargo, is a deviation. Brown v. Tayleur, 4 Ad. & El. 241.
(a) Motteaux v. London Assurance Company, 1 Atk. 548; Condy's Marshall, 261;
2 Caines Cases, 172. In Parmenter v. Cousins, 2 Camp. 235, the ship was insured at
and from St. Michael to England, and the ship arriving there in distress was blown out
to sea and destroyed, after lying at anchor above twenty-four hours; and Lord Ellen-
borough ruled, that the insurer was not liable, because the vessel had not once been
at the place in good safety, and the policy on the homeward voyage had not attached.
It is surprising that the construction of the policy at and from should still remain to
be settled. The words ought long since to have been defined and fixed with mathe-
matical precision. Lord Hardwicke says, the policy attaches from the first arrival.
Ch. J. Tilghman says, it attaches as soon as the vessel has been safely moored twenty-four
hours. Lord Ellenborough requires the vessel to be at the place in good safety,
whether the loss takes place within, or not until above twenty-four hours after sho
has arrived and anchored. [Haughton v. Empire M. Ins. Co., L. R. 1 Ex. 206.] Mr.
Justice Porter, in Zacharie v. Orleans Ins. Company, 5 Martin, N. s. 637, required
the same anchorage for twenty-four hours in good safety. In Williamson v. Innes, 8
Bing. 81, note, it was held, that on a homeward policy on freight at and from A, it
attaches when the ship was in a condition to begin to take in her cargo. There are
excepted cases in which the risk in a policy at and from will not attach until the time
of sailing, as where the ship is not finished, or is undergoing repairs, or where there
is a particular usage to that effect. The general rule is, that in policies at and from a
given place, the risk attaches while the vessel is at the place. Palmer v. Marshall, 8
Bing. 79; and in Taylor v. Lowell, 3 Mass. 331, and which was confirmed in Mer-
chants' Ins. Company v. Clapp, 11 Pick. 56, it was held, that in an insurance on cargo
and freight at and from a foreign port, the policy attaches, though the vessel, while in
port with the cargo on board, may need repairs to enable her to undertake the voyage.
There is much nicety and difficulty in settling precisely when the policy attaches so
as to charge the insurer, or when the voyage insured is, under the circumstances, to
be considered as discontinued or abandoned. The case of Tasker v. Cunninghame,
1 Bligh, 87, which floated through several courts in Scotland, and was finally disposed
of in the British House of Lords, is a sample of much subtlety in discrimination. In
Hutton v. The American Ins. Co., 7 Hill, 321, Chancellor Walworth held, that if a
vessel be driven by stress of weather, or by superior force, into a port of necessity,
she is still at sea in reference to her port of departure, and destination, and of dis
charge..
[421]
* 309
[PART V.
OF PERSONAL PROPERTY.
arrival. (b)¹ But the risk continues during quarantine, though
after the twenty-four hours. (c)
1
If the policy be to a country generally, as to Jamaica, the risk
ends at the first port made for the purpose of unloading, after the
vessel has been moored there in safety for twenty-four hours. (d)
But in France, where insurances are generally to the French West
India Islands, the risk on the ship continues until the cargo
*309 is discharged at the last place of * destination. (a) So if a
vessel be insured from the West Indies to a port of dis-
charge in the United States, and she sailed from the West Indies
for Savannah, and after inquiring at that port into the state of
the markets, and procuring some repairs and supplies, and stay-
ing only a reasonable time for those purposes, and without dis-
charging any part of her cargo, sails for Boston, it was held that she
was protected by the policy on her passage to Boston, as Boston
was the port of discharge within the policy. (b) If the policy
contains a liberty to touch, stay, and trade, or to touch and stay,
or if there be a known usage of trade, the risk will be prolonged
according to that usage, or the terms of the policy, and interme
diate voyages may be covered by the insurance. (c)
(b) Lockyer v. Offley, 1 T. R..252; Meretony v. Dunlope, cited ib. 260. Howell
v. The Protection Ins. Company, 7 Ohio, 284. In Peters v. Phoenix Ins. Company,
3 Serg. & R. 25, the court overruled this case of Meretony v. Dunlope, and held, that
where a vessel received her death wound during the voyage, or suffered damage above
fifty per cent, she might be abandoned, though she had been moored twenty-four
hours in safety in the port of destination, and that it was of no moment at what time
the loss was ascertained, if it occurred during the voyage.
(c) Waples v. Eames, Strange, 1243.
(a) 2 Emerigon, 72.
(d) Leigh v. Mather, 1 Esp. 412.
(b) Lapham v. Atlas Ins. Co., 24 Pick. 1.
(c) Salvador v. Hopkins, 3 Burr. 1707; Gregory v. Christie, cited in Condy's
Marshall, 273; Farquharson v. Hunter, Park on Insurance, 67.
1 According to Knight v. Faith, 15 Q. B.
649, the insurers of a ship for time are
liable if she receives her death wound
during the time, notwithstanding she is
kept afloat without the extent of the dam-
age being ascertained till the time has
expired; and strong doubts are expressed
whether the contrary doctrine was ever
laid down by Lord Mansfield. Lockyer
v. Offley is also explained on the ground
that there the proximate cause of the loss
was the seizure by the government, which
occurred after the policy had expired. L.
R. 5 C. P. 200. In Lidgett v. Secretan,
L. R. 5 C. P. 190, the words "twenty-
four hours in good safety," are said not
to be satisfied by the vessel arriving and
being moored in a sinking state or as a
mere wreck, or by a mere temporary
mooring. See Crosby v. N. Y. Mut. Ins.
Co., 5 Bosw. 369. As to what is arrival,
see Whitwell v. Harrison, 2 Exch. 127;
Lindsay v. Janson, 4 Hurlst. & N. 699;
Meigs v. Mut. Mar. Ins. Co., 2 Cush. 439;
Bramhall v. Sun Mut. Ins. Co., 104 Mass.
510.
[422]
LECT. XLVIII.]
* 310
OF PERSONAL PROPERTY.
The risk upon the cargo is subject to much modification by the
agreement of the parties, but it usually commences from the load-
ing thereof aboard the ship. By the French law, the policy covers
the goods while on the passage in lighters from the wharf to the
ship, in the harbor where she is anchored, though not if the goods
are to ascend or descend a river to the ship. (d) The risk con-
tinues while the cargo is actually on board the ship, and no longer;
though if the cargo be temporarily landed from necessity, during
the voyage, it is still protected by the policy. (e) If the policy,
as is usual, covers the risk upon the goods until safely landed,
then the risk continues during their passage to the shore, and
until all the goods are landed. (f) Policies of insurance are con-
strued according to the usages of trade; and, therefore, if it be
the ordinary course of the trade for the owner to employ a common
public lighter to remove the goods from the ship to the shore, the
policy covers them; though if he was to employ his own lighter,
or take the goods under his own charge, the insurer
would be discharged. (g) *There are usually distinct 310
policies on the outward and on the homeward voyage;
and if the ship perishes in the harbor abroad, after having dis-
charged part of her outward, and received part of her homeward
cargo, there may arise questions as between the different policies
on the cargo. It is stated in the French law, that the policy on
the outward cargo does not end but by the total or almost total dis-
charge of the outward cargo; and I should presume the risk on
the homeward cargo attaches as fast as it is received on board,
and that the case may happen in which there was aliment suffi-
cient to sustain both policies concurrently in point of time. If
the policy be on the voyage out and home, on cargo to such a
value, or on a trading voyage, the policy will attach on every
successive cargo taken on board in the course of the voyage, and
Code de Commerce, art. 328.
(d) Boulay-Paty, iii. 419;
(e) Boulay-Paty, iii. 427. [See Pelly v. R. E. Ass. Co., ante, 304 (e), which, how-
ever, is distinguished in Martin v. Salem M. Ins. Co., 2 Mass. 420; Harrison v. Ellis,
7 El & Bl. 465, 480.]
(ƒ) Tierney v. Etherington, cited in 1 Burr. 348; Gardiner v. Smith, 1 Johns.
Cas. 141. [Parsons v. Mass. F. & M. Ins. Co., 6 Mass. 197; Fletcher v. St. Louis
Mar. Ins. Co., 18 Mo. 193; Lane v. Nixon, L. R. 1 C. P. 412; ante, 288, n. 1.]
(9) Rucker v. London Assurance Company, cited in 2 Bos. & P. 432, in notis ;
Hurry v. Royal Exchange Assurance Company, ib. 430; Matthie v. Potts, 3 id. 23;
Strong v. Natally, 4 id. 16; Coggeshall v. American Ins. Company, 3 Wend. 283.
See supra, 260, as to usage.
[ 423 ]
311
[PART V.
OF PERSONAL PROPERTY.
•
the amount of property on board to the sum mentioned, remains
covered, without regard to the fact, that part of the original cargo
was landed at an intermediate port, and the cargo on board at
the time of the loss was the proceeds of the outward cargo. The
policy attaches on goods taken in exchange, or substituted, in
the course of a trading voyage, as often as the goods may be
changed. (a) But if the policy be on goods outward, and upon
their proceeds home, and the same goods are brought back in
the same vessel, without having been changed or landed at the
port of destination, they are not covered by the policy on the home-
ward voyage. The policy had reference to a change of cargo
* 311 at the port of destination, and meant a substituted * cargo
for the one carried out, and not the cargo itself. The
homeward cargo, procured by money or credit advanced on the
outward cargo, may, and has been deemed, by a reasonable con-
struction, as the proceeds of the outward cargo; (a) but it would
be too extravagant a departure from the terms of a written con-
tract, to make the issues and profits of a cargo stand in this case
for the original cargo. (b)
In insurances on freight, the risk usually begins from the time
the goods are sent on board, and not before. (c) But if the ship,
sailing under a contract, be lost on her way to the port of lading,
or at the port of lading to which she had arrived in ballast, before
any goods are put on board, or when part of the cargo is on board,
and preparations are making to receive passengers, the insurer on
freight and passage money is liable; because an inchoate right to
freight, which is an insurable interest, had commenced, and there
was an inception of the risk, which attaches on the whole freight
for the voyage. (d) ¹
1
(a) Mansfield, Ch. J., in Grant v. Paxton, 1 Taunt. 474; Columbian Ins. Company
v. Catlett, 12 Wheaton, 383; Coggeshall v. American Ins. Company, 3 Wend. 283.
(a) Haven v. Gray, 12 Mass. 71; Whitney v. The American Ins. Company, 3
Cowen, 210.
(b) Dow v. Hope Ins. Company, 1 Hall (N. Y.), 166.
(c) Tonge v. Watts, Strange, 1251.
(d) Thompson v. Taylor, 6 T. R. 478; Mackenzie v. Shedden, 2 Camp. 431;
Horncastle v. Suart, 7 East, 400; Truscott v. Christie, 2 Brod. & B. 320; Riley v.
Hartford Ins. Company, 2 Conn. 373; Hart v. Delaware Ins. Company, Condy's
Marshall, 281, note.
1 Beginning of the Risk on Freight. It
is supposed that a party who has made a
contract by which he is to earn freight
has an insurable interest at once, although
the contract is not to be performed for
six months, Potter Rankin, L. R. 5
[424]
LECT. XLVIII.]
* 312
OF PERSONAL PROPERTY.
If the policy be an open one, the recovery is limited to the
actual amount of freight which would have been earned; and it
is necessary to prove that goods were on board from which freight
was to arise, or that there was some contract, under which the
ship owner would have been entitled to freight, if the peril had
not occurred. In a valued policy, if the insured has done some-
thing towards earning the freight, and there was nothing
to prevent earning it but the occurrence * of the peril, his *312
interest in the whole freight has commenced and been put
at risk; and the weight of authority is, that he is entitled to
recover the amount of the valuation, though only part of the
cargo be on board. (a) In the case of De Longuemere v. Fire
Insurance Company, (b) the court did not question the decision
in Forbes v. Aspinall, (c) where a valued policy on freight was
(a) Montgomery v. Eggington, 3 T. R. 362; Davidson v. Willasey, 1 Maule & S.
313; Livingston v. Columbian Ins. Company, 3 Johns. 49; De Longuemere v.
Phoenix Ins. Company, 10 Johns. 127; Same v. Fire Ins. Company, ib. 201.
(b) 10 Johns. 201.
(c) 13 East, 323. [And see Tobin v. Harford, 34 L. J. N. s. C. P. 37; 17 C. B.
N. s. 528; ante, 275; Denoon v. Home & Col. Ass. Co., L. R. 7 C. P. 341; Fay v.
Alliance Ins. Co., 16 Gray, 455, 459.]
C. P. 341; L. R. 3 C. P. 562; Barber v.
Fleming, L. R. 5 Q. B. 59, 67; Beckett v.
West of England Mut. Ins. Co., 25 L. T.
N. s. 739, 742, although the language of
many judges has seemed to imply the
contrary. Lucena v. Craufurd, 3 B. & P.
75, 95; Michael v. Gillespy, 2 C. B. N. s.
627, 647; Barber v. Fleming, L. R. 5 Q.
B. 59, 71; Arnould, 4th ed. 59. The lan-
guage of the text, therefore, here and
ante, 270, in so far as it seems to put the
commencement of the insurer's liability
in the case supposed on the ground that
the assured has just acquired an insur
able interest, tends to mislead. The liabil-
ity of the insurer does not necessarily
follow from that, and the insured may
have had such an interest long before.
But an ordinary insurance upon freight is
a contract of indemnity against certain
perils during the adventure in which the
freight is to be earned (L. R. 3 C. P. 567).
The undertaking does not usually extend
to risks to be incurred before that advent-
ure begins and irrespective of the freight
in question, although a previous loss of
the vessel will of course make it impos-
sible to earn the freight. See Arnould,
4th ed. 414; Sellar v. M'Vicar (4 Bos. &
P.) 1 N. R. 23. Accordingly, when it is said
that as soon as the ship owner has taken
steps towards the performance of his con-
tract and incurred expense upon the voy
age towards earning the freight, his inter-
est ceases to be contingent and becomes
inchoate, and, if destroyed by one of the
perils insured against, is lost, and must be
paid for by the underwriters (L. R. 5 Q.
B. 71), it is supposed that no more is
meant than that the adventure contem-
plated by the policy has begun. The
doctrine of the text is illustrated, and the
cases cited are carried farther, by Barber
v. Fleming, L. R. 5 Q. B. 59; Tobey v.
United F. & M. Ins. Co., L. R. 5 C. P.
155.
[425]
* 313
[PART V.
OF PERSONAL PROPERTY.
opened, and a recovery allowed only as to the portion of the
cargo on board when the peril occurred; and they rather con-
curred in it, on the ground that the residue of the cargo, which
was to be the aliment for the freight, was not in that case ready
to be shipped, and the vessel was, in fact, a mere seeking ship,
and for aught that appeared, the residue of the cargo might never
have been obtained.
(2) Of Deviation. The policy relates only to the voyage
described in it, and to the route proper for the voyage insured;
and if the vessel departs voluntarily, and without necessity, from
the usual course of the voyage, the insurer is discharged, for it
is a variation of the risk, and the substitution of a new voyage.
The meaning of the contract of insurance for the voyage is, that
the voyage shall be performed with all safe, convenient, and
practicable expedition, and in the regular and customary track.
In the case of an unjustifiable deviation, the insurer is discharged;
not indeed from loss occurring previous to the deviation, but
from all subsequent losses. These are elementary principles in the
law of insurance, and pervade the institutions of every country
on the subject. (d)
* 313
* The shortness of the time, or of the distance of a devi-
ation, makes no difference as to its effect on the contract;
if voluntary and without necessity, it is the substitution of another
risk, and determines the contract. (a) So strictly has this doc-
trine been maintained, that where a vessel, having liberty in
sailing down the Firth of Forth to touch at Leith, touched at
another port in its stead, equally in her way, it was held to be a
fatal deviation, though neither risk nor premium would have been
increased if it had been permitted. (b)
The great cause of litigation in the courts, on this subject of
deviation, is as to the facts and circumstances which will be suffi-
cient to justify it on the ground of usage or necessity, or of the
true construction of the policy; and these are mostly questions
of law for the determination of the court.
Stopping, or going out of the way to relieve a vessel in distress,
(d) Roccus, de Ass. n. 20, 52; Emerigon, ii. 28, 59, 60; 9 Mass. 447; Condy's
Marshall, 184, 185; 1 Phillips on Insurance, 181, 1st ed.
(a) Fox v. Black, and Townson v. Guyon, cited in Beawes, i. 306; 9 Mass. 449;
Martin v. Delaware Ins. Company, 2 Wash. 254; 1 Doug. 291; 7 Cranch, 30.
[Child v. Sun Mut. Ins. Co., 3 Sandf. 26.]
(b) Elliot v. Wilson, 7 Bro. P. C. 459.
[426]
LECT. XLVIII.]
* 314
OF PERSONAL PROPERTY.
or to save lives or goods, may, perhaps, under certain circumstances,
not be considered as a deviation which discharges the insurer.
Mr. Justice Lawrence intimates, in one case, (c) that it might be
justifiable; but Judge Peters observed, that such deviations were
justified to the heart on principles of humanity, but not to the
law. If, however, the object of the deviation was to save life,
Judge Washington afterwards observed, that he would not be the
first judge to exclude such a case from the exception to the gen-
eral rule, though he could not extend the exception to the case
of saving property. (d) The Chief Justice observed, in the
case of Mason * v. Ship Blaireau, (a) that the Supreme *314
Court of the United States had great doubts whether
stopping to relieve a vessel in distress was an unjustifiable devia-
tion in regard to the policy.¹
(c) 6 East, 54.
(d) 1 Peters, Adm. 40, 64; 2 id. 378; Bond v. The Brig Cora, 2 Wash. 80. This
distinction was sustained by Mr. Justice Story, in the case of Foster v. Gardner,
Am. Jurist, No. 21, and in the case of the Henry Ewbank, 1 Sumner, 400; and he
agreed that any stoppage on the high seas, except for the purpose of saving life,
would be a deviation, and discharge the underwriter. The Schooner Boston and
Cargo, 1 Sumner, 328, s. P. But in Williams v. Box of Bullion, U. S. District Court
in Mass., 1843, it was held not to be an injurious delay to deviate so as to speak at
sea to a vessel with a signal of distress, or to delay three hours to take in shipwrecked
mariners, 6 Law Reporter, 363; [1 Sprague, 57.]
(a) 2 Cranch, 257, note.
1 Deviation. It is settled that a devia- be undecided in the English law whether
tion to save life will not avoid the policy; a deviation for the purpose of rendering
Crocker v. Jackson, 1 Sprague, 141; Dab- salvage service to property would avoid
ney v. New England M. M. Ins. Co., 14 a policy of insurance; and doubts were
Allen, 300, 307, stated 234, n. 1, a; George expressed whether that could be laid down
Nicholaus, Newb. 449, 452; Emblem, Da- as a universal rule, or whether the dis-
veis, 61, 64; Arnould, 4th ed. 471; and the tinction between deviations for saving life
principle applies to the case of a passen- and deviations for saving property is sound.
ger on board the insured vessel as well as Walsh v. Homer, 10 Mo. 6; Turner v.
to that of men from other vessels. When Protection Ins. Co., 25 Me. 515, 523; but
such a justifiable deviation has taken the distinction is approved in Crocker v.
place, it will not be rendered unjustifiable Jackson, sup.
by taking cargo on board at the port
visited for medical assistance, unless the
delay or the risk is increased. Perkins
v. Augusta Ins. & B. Co., 10 Gray, 312.
See Brown v. Overton, 1 Sprague, 462.
In The True Blue, L. R. 1 P. C. 250,
255 (1866), and The Thetis, L. R. 2 Ad.
& Ec. 365, 368 (1869), it was said to
What will constitute a deviation must
of course depend very much on the words
of the particular contract, taken in con-
nection with usages of trade, which the
underwriters may be presumed to know,
so far as such usages are admissible con-
sistently with the written instrument.
Ante, 260, n. 1; Parsons v. Manuf. Ins
[ 427 ]
314
[PART V.
OF PERSONAL PROPERTY.
The courts are exceedingly strict in requiring a prompt and
steady adherence to the performance of the precise voyage
insured; and, considering the particular state of facts upon
which calculations of the value of risks are made, and the uncer-
tainty and danger of abuse that relaxations of the doctrine
would introduce, the severity of the rule is founded in sound
policy. (b)
If there be liberty granted by the policy to touch or to touch
and stay at an intermediate port on the passage, the better
opinion now is, that the insured may trade there, when consistent
with the object and the furtherance of the adventure, by breaking
bulk, or by discharging and taking in cargo, provided it produces
no unnecessary delay, nor enhances nor varies the risk. (c) And
if there be several ports of discharge mentioned in the policy, and
the insured goes to more than one, he must go to them in the
order in which they are named in the policy; or if they be not
(b) If a steamboat be lost in an attempt to take a vessel in tow, and there be no
clause in the policy allowing it, and no acquiescence of the insurers in such a usage,
they are not liable. Hermann v. Western Marine and Fire Ins. Company, 13 La.
516. Taking a vessel or boat in tow on the Mississippi, held to be a deviation and a
discharge of the insurers on the steamboat. Stewart v. Tennessee M. & F. Ins. Co.,
1 Humph. 242; Natchez Ins. Co. v. Stanton, 2 Smedes & M. 340.
(c) Raine v. Bell, 9 East, 195; Cormack v. Gladstone, 11 id. 347; Laroche v.
Oswin, 12 id. 131; Urquhart v. Barnard, 1 Taunt. 450; Kane v. Columbian Ins. Co.,
2 Johns. 264; Hughes v. Union Ins. Company, 3 Wheaton, 159; Thorndike v. Bord-
man, 4 Pick. 471; Chase v. Eagle Insurance Company, 5 id. 51. This liberal con-
struction is also given to the liberty to touch and make port freely, contained in the
French policies; and if new goods be taken in at such stopping port, the policy on
cargo attaches on them as a substitute for the others. If the policy be on cargo to
such an amount, and the ship discharges part of her cargo at the stopping port, but
reserves sufficient on board as an aliment for the policy, and pursues the voyage, the
policy attaches on the residuum of the cargo. Emerigon, ii. c. 13, sec. 8; Boulay-
Paty, Cours de Droit Com. iv. 140-147.
Co., 16 Gray, 463; Seccomb v. Provincial
Ins. Co., 10 Allen, 305; Hennessy v. N. Y.
M. M. Ins. Co., 1 Oldright (Nova Sc.),
259; Mallory v. Comm. Ins. Co., 9 Bosw.
101; De Peyster v. Sun Mut. Ins. Co., 19
N. Y. 272; Bulkley v. Protection Ins. Co.,
2 Paine, 82; Harrower v. Hutchinson,
L. R. 5 Q. B. 584, L. R. 4 Q. B. 523. As
stated in the text, the reason why a devi-
ation avoids the policy is that the risk is
thereby changed; Merchants' Ins. Co. v.
Algeo, 32 Penn. St. 330; and the same
principle applies to the unnecessary trans-
fer of a cargo insured by a particular
vessel from that vessel to another.
Oliverson v. Brightman, Bold v. Roth-
eram, 8 Q. B. 781, 797; Paddock v. Com-
mercial Ins Co., 2 Allen, 93, 100; Pierce
v. Columbian Ins. Co., 14 Allen, 320, 322;
Salisbury v. Marine Ins. Co., 23 Mo. 553;
ante, 257. As to preliminary trips before
sailing on the voyage insured, cf. Green-
leaf v. St. Louis Ins. Co., 37 Mo. 25, with
Fernandez v. Gt. W. Ins. Co., 48 N. Y. 571.
[428]
LECT. XLVIII.] * 316
•
OF PERSONAL PROPERTY.
*
specifically named, he must generally go to them in the
geographical order in which they occur, though there *315
may be cases in which he need not follow the geographical
order. (a) This liberty to touch, stay, and trade is always con-
strued to be subordinate to the voyage insured, and to the usual
course of that voyage, and for purposes connected with it. It
does not extend to ports and places opposite to or wide of the
usual course, or wholly unconnected with the voyage insured.
This principle is as old as the law of insurance, and has accom-
panied it in every stage of its progress. (b)
The law requires the voyage, so far as concerns the underwriter,
to be performed with reasonable diligence; and every unneces-
sary delay, in or out of port, or in commencing the voyage insured
against, will amount to a deviation. (c) Deviation is always
understood to be an afterthought, arising subsequent to the com-
mencement of the voyage, and produced by the perception of
some new interest, or the influence of some strong temptation. A
premeditated intention to deviate amounts to nothing, unless it
be actually carried into execution; and this rule is adopted in
England and in the courts of the United States. (d) If the ship
quits from necessity the course described in the policy, she must
pursue such new voyage of necessity in the direct course and in
the shortest time, or it will amount to a deviation. This
* was the doctrine as declared by Lord Mansfield in the *316
case of Lavabre v. Wilson; (a) and that case is reported.
at large in Emerigon, (b) with a liberal and exalted eulogy (pro-
(a) Beatson v. Haworth, 6 T. R. 531; Marsden v. Reid, 3 East, 572; Clason v..
Simmonds, cited in 6 T. R. 533; Kane v. Col. Ins. Company, 2 Johns. 264; Metcalf
v. Parry, 4 Camp. 123; Houston v. New England Ins. Company, 5 Pick. 89.
(b) Straccha, Gloss. 14; Casaregis, Disc. 67, n. 23, and Disc. 134; Valin, ii. 77,
- 78; Emerigon, ii. c. 13, secs. 6 and 8, passim; Clason v. Simmonds, 6 T. R. 533,
note; Gairdner v. Senhouse, 3 Taunt. 16; Langhorn v. Allnutt, 4 id. 511; Ham-
mond v. Reid, 4 B. & Ald. 72; Solly v. Whitmore, 5 id. 45; Bottomley v. Bovill,
5 B. & C. 210; Rankin v. Reave, Park on Insurance, 7th ed. 445; Rucker v. Allnutt,
15 East, 278.
(c) Jarratt v. Ward, 1 Camp. 263; Smith v. Surridge, 4 Esp. 25; Oliver v. Mary-
land Ins. Company, 7 Cranch, 487; 9 Mass. 447; Earl v. Shaw, 1 Johns. Cas. 317;
Mount v. Larkins, 8 Bing. 108; Fremen v. Taylor, ib. 124; Grant v. King, 4 Esp.
175; Seamans v. Loring, 1 Mason, 127. [Augusta Ins. & Bank. Co. of Georgia v.
Abbott, 12 Md. 348.]
(d) Foster v. Wilmer, Strange, 1249; Lord Mansfield, in Doug. 18, 365; 3 Cranch,
357; 7 Mass. 352.
(a) Doug. 284.
(b) Traité des Ass. ii. 62.
[ 429 ]
* 317
[PART V.
OF PERSONAL PROPERTY.
nounced in the midst of war between the two countries) on the
wisdom and probity of the English administration of justice:
tanta vis probitatis est, ut eam in hoste etiam diligamus. All per-
missions given by the policy out of the ordinary course and inci-
dents of the voyage are to be construed strictly. If the vessel
have liberty to carry letters of marque, she may deviate for the
purpose of defence, but not for the purpose of capture. (c) In
Haven v. Holland, (d) an enlarged discretion, and one carried to
the very verge of the law, was confided to the captain as to the
best mode of defence, and it was held, that the letter of marque
might chase and capture hostile vessels in sight, in the course of
the voyage, without its being a deviation; and if he captures the
vessel, the master may make the victory effectual, and man out
the prize, and the delay for those purposes is not a deviation. If
liberty be given her to chase and capture, that will not enable
her to convoy her prize into port, (e) though she may do it if
she be not thereby led out of the way; (f) and to cruise for
six weeks, means six consecutive weeks, and not at different
times. (g)
The object of the deviation must be considered, in order to deter-
mine its effect upon the policy. It must be commensurate only
with the necessity that produces it, and that necessity will justify
a deviation on account of a peril not insured against. (h)
*317 And when the deviation is governed by that* necessity, as
a deviation from stress of weather, or to procure necessary
repairs, or to join convoy, or to avoid capture or detention, it
works no injury to the policy. (a)
There has been considerable discussion in the books relative to
the identity of the voyage described in the policy, and the voyage
actually begun. If the vessel sails on a different voyage, the
policy never attaches; but if she be lost before she comes to the
(c) Parr v. Anderson, 6 East, 202.
(e) Lawrence v. Sydebotham, 6 East, 45.
(ƒ) Ward v. Wood, 13 Mass. 539.
(g) Syers v. Bridge, Doug. 527.
(d) 2 Mason, 230.
(h) Scott v. Thompson, 4 Bos. & P. 181; Robinson v. Marine Ins. Company, 2
Johns. 89.
(a) [Silloway v. Neptune Ins. Co., 12 Gray, 73, 82;] Condy's Marshall, 202, b to
213; Phillips on Insurance, i. 2d ed. 480-576. The latter work has collected and
digested all the English and American cases on this very diffusive head of deviation,
and to which I must refer for a more particular knowledge of the distinctions and
exceptions with which the books abound
[430]
LECT. XLVIII.] OF PERSONAL PROPERTY.
*318
dividing point, between the course of the voyage in the policy
and the course of the new voyage, the change of the voyage often
becomes a contested question as to the intention of the party.
If the ship really sailed on another voyage, the policy never
attached, though the vessel be lost before she came to the divid-
ing point; but if the termini of the voyage described in the
policy be the same as those upon which the vessel sailed, it is the
same voyage, and a mere intention, afterwards formed, to deviate,
is of no consequence, if the vessel be lost before she came to the
dividing point.¹ The distinction between an alteration of the
voyage, and a mere deviation in the course of it, is very reason-
able and solid. The one is adopted previous to the commence-
ment of the risk, and shows that the party had receded from
his agreement, but the other takes place after the risk has com-
menced, and relates only to the execution of the original plan. (b)
It has, however, been held, in one case, after much discussion, (c)
and suggested in another, in opposition to the established
* rule, that the identity of the voyage does not always *318
consist in the identity of the termini; (a) and that though
the terminus ad quem be dropped, and another substituted in the
course of the voyage, it may be still the same voyage; and if the
vessel be lost before she comes to the dividing point between
the course to the original, and to the substituted port of desti- ·
nation, it is an intention to deviate, and nothing more. (b) ¹
(b) Wooldridge v. Boydell, Doug. 16; Kewley v. Ryan, 2 H. Bl. 343; Middle-
wood v. Blakes, 7 T. R. 162; Silva v. Low, 1 Johns. Cas. 184; Henshaw v. Marine
Ins. Company, 2 Caines, 274; Marine Ins. Company v. Tucker, 3 Cranch, 357;
Boulay-Paty, iv. 56, 57.
(c) Lawrence v. Ocean Ins. Company, 11 Johns. 241; s. c. 14 id. 46.
(a) Johnson, J., in 3 Cranch, 385.
(b) The foreign jurists distinguish between the voyage insured and the voyage of the
"ship. Independenter se habet assecuratio a viaggio navis. If a ship sails on a voy-
age from Saint Malo to Toulon, and is insured from Saint Malo to Cadiz, the latter
is the voyage insured, but the former is the voyage of the ship, and the voyage
1 [Winter v. Delaware Mut. Safety Ins.
Co., 30 Penn. St. 334.]
1 It was held in a case which abstained
from laying down any broader proposition,
that when the vessel left an intermediate
port in the voyage assured for a different
port of discharge from the one mentioned
in the policy, and was lost, the insurers
were discharged, although she was pursu-
ing a course which she might have taken
if she had continued upon the voyage
insured, and although her destination
was not changed until after the com-
mencement of the voyage.
Merrill v.
Boylston F. & M. Ins. Co., 3 Allen, 247.
[431]
* 319
[PART V.
OF PERSONAL PROPERTY.
3. Of the Rights and Duties of the Insured in Cases of Loss. - (1)
Of Abandonment. - A total loss within the meaning of the policy
may arise either by the total destruction of the thing insured, or,
if it specifically remains, by such damage to it as renders it of
little or no value. A loss is said to be total if the voyage be
entirely lost or defeated, or not worth pursuing, and the pro-
jected adventure frustrated. It is a constructive total loss if
the thing insured, though existing in fact, is lost for any bene-
ficial purpose to the owner. In such cases the insured may
abandon all his interest in the subject insured, and all his hopes
of recovery, to the insurer, and call upon him to pay as for a total
loss. The object of the provision is to enable the insured to be
promptly reinstated in his capital, and be thereby enabled to
engage in some new mercantile adventure. Long interruption
to a voyage, and uncertain hopes of recovery, would often be
ruinous to the business of the merchant; and, therefore, if the
object of the voyage be lost, or not worth pursuing, by reason of
the peril insured against, or if the cargo be so damaged as
* 319 to be of little or no value, or * where the salvage is very
high, and further expense be necessary, and the insurer
will not engage to bear it, or if what is saved be of less value
than the freight, or where the damage exceeds one half the value
of the goods insured, or where the property is captured, or
arrested, or even detained by an indefinite embargo; in these
and other cases of a like nature, the insured may disentangle
himself, and abandon the subject to the underwriter, and call
upon him to pay a total loss. In such cases, the insurer stands
in the place of the insured, and takes the subject to himself with
all the chances of recovery and indemnity. A valid abandon-
ment has a retrospective effect, and does of itself, and without
any deed of cession, and prior to the actual payment of the loss,
transfer the right of property to the insurer to the extent of the
insurance; and if after an abandonment, duly made and accepted,
the ship should be recovered, and proceed and make a prosperous
voyage, the insurer, as owner, would reap the profits. (a) 1
insured is known by its two extremes, or the terminus a quo and the terminus ad quem.
Casaregis, Disc. 67, n. 5, 31; Boulay-Paty, iii. 416, 417.
(a) Guidon, c. 7, sec. 1; Goss v. Withers, 2 Burr. 683; Hamilton v. Mendes, ib.
1198; Milles v. Fletcher, Doug. 231; Manning v. Newnham, Park on Insurance, 221;
1 See 331, n. 1.
[432]
LECT. XLVIII.]
* 320
OF PERSONAL PROPERTY.
These considerations have introduced the right of abandonment
into the insurance law of every country, and yet the text writers
have generally condemned the privilege as inconsistent with just
notions concerning the nature of the contract of insurance, which
is a contract of indemnity. But it has now become an ingredient
so interwoven with the whole system of insurance, that it cannot
be abolished, though the late English cases, says Mr. Benecke,
show a stronger inclination in the courts to restrict than to enlarge
the right. The laws of Hamburg distinguished themselves
from all others, * by restricting the right of abandonment *320
to the only case of a missing ship. (a)
As soon as the insured is informed of the loss, he ought (after
being allowed a reasonable time to inspect the cargo, and for no
other purpose) to determine promptly whether he will or will not
abandon, and he cannot lie by and speculate on events. If he
elects to abandon, he must do it in a reasonable time, and give
notice promptly to the insurer of his determination; otherwise
he will be deemed to have waived his right to abandon, and will
be entitled to recover only for a partial loss, unless the loss be,
in fact, absolutely total. (b) If the thing insured exists in specie,
and the insured wishes to go for a total loss, an abandonment is
Cazalet v. St. Barbe, 1 T. R. 187; Queen v. Union Ins. Company, 2 Wash. 331.
The abandonment carries with it to the insurer, not only the title to the subject
insured, but its proceeds, if recovered, and any compensation awarded by way of
indemnity. The benefit of the spes recuperandi passes, and all that may be collateral
or incidental to the ownership. Blaauwpot v. Da Costa, 1 Eden, 130; Randal v.
Cockran, 1 Vesey, Sen., 98; Comegys v. Vasse, 1 Peters, 193; Atlantic Ins. Com-
pany v. Storrow, 1 Edw. Ch. 621; Rogers v. Hosack, 18 Wend. 319; Matthews, J.,
in Mellon v. Bucks, 5 Martin, N. s. 371. Mr. Benecke justly observes, that the prin-
ciples in some of the above cases, before Lord Mansfield, were too generally expressed
to serve as a basis of the law of abandonment, and that it was from actual decisions,
and not from such general observations, that the law must be collected. Benecke
on Indemnity, 348.
(a) Ord. of Hamburg, 11. The insurance companies of Philadelphia, in 1807,
agreed that their policies should provide against abandonment in cases of capture or
detention, until sixty days after advice received of the act, unless the property be
sooner condemned; and in cases of embargo, until after four calendar months; and
against any abandonment on account of seizure or detention in port under French
decrees, or on account of the port of detention being blockaded.
(b) Mitchell v. Edie, 1 T. R. 608. The reasonable time for giving notices of
abandonment depends upon circumstances, and five days' delay, after intelligence
received, has been held too late. Hunt v. Royal Exchange Assurance, 5 Maule & S.
47; [Potter v. Rankin, L. R. 5 C. P. 341, 363.]
VOL III.
28
[ 433 ]
321
[PART V.
OF PERSONAL PROPERTY.
indispensable. (c) The same principle which requires the insured
who abandons, to do it in a reasonable time, also requires the
insurer who rejects an abandonment, to act promptly. (d) The
object of the abandonment is to turn that into a total loss which
otherwise would not be one; and it is unnecessary, and would
be idle, to abandon in the case of an entire destruction of
*321 the subject. (e) It is only necessary when the loss is * con-
structively total within the policy, and not an actual total
loss. The right of abandonment does not depend upon the
certainty, but upon the high probability of a total loss, either
of the property, or voyage, or both. The insured is to act, not
upon certainties, but upon probabilities; and if the facts present
a case of extreme hazard, and of probable expense, exceeding
half the value of the ship, the insured may abandon, though it
should happen that she was afterwards recovered at a less
expense. (a) Though the subject may physically exist, yet there
(c) Mitchell v. Edie, 1 T. R. 608; Martin v. Crokatt, 14 East, 465;
Hunt v.
Royal Exchange Assurance, 5 Maule & S. 47; Smith v. Manufac. Ins. Co., 7 Metc.
448. [But see 331, n. 1, (b).]
(d) Hudson v. Harrison, 3 Brod. & Bing. 97; [Copelin v. Ins. Co., 9 Wall. 461;
46 Mo. 211.] The insurer may take possession of a vessel stranded and abandoned
to him, and repair her, provided he does it diligently, or in a reasonable time; and
if he has not accepted the abandonment, and the repairs amount to less than half the
value, he may restore the vessel. Peele v. Suffolk Ins. Co., 7 Pick. 254. [But see
331, n. 1, (b).]
(e) Mullett v. Shedden, 13 East, 304; Green v. Royal Exchange Assurance Com-
pany, 6 Taunt. 68; Cambridge v. Anderton, 2 B. & C. 691; Casaregis, Disc. 3, n. 23;
Disc. 70, n. 5, 33; Roux v. Salvador, 1 Bing. N. C. 526; 1 Scott, 491; 3 Bing.
N. C. 266. In this last case, in the Exchequer Chamber, Lord Abinger gave a
learned historical review of the law of abandonment, and the decision of the court
was, that if the goods insured are damaged by sea perils during the course of the
voyage, and at an intermediate port of necessity became perishable and could not
be reshipped, the assured might recover as for a total loss without abandonment,
even though the perishable articles (hides) did exist in specie, for they could not be
reshipped with safety, and they were deemed totally lost as a shipment for the voy-
age. An abandonment in a policy on freight is held to be unnecessary when the
ship is hopelessly stranded, for then there is nothing to abandon. Idle v. Royal
Exchange Assurance Company, 8 Taunt. 755; Mount v. Harrison, 4 Bing. 388.
See, also, Robinson v. Commonwealth Ins. Co., 3 Sumner, 220, the combination of
circumstances stated which will authorize an abandonment.
(a) Fontaine v. Phoenix Ins. Company, 11 Johns, 293; Robertson v. Caruthers,
2 Stark. 571; Bradlie v. The Maryland Ins. Co., 12 Peters, 378, 398; [32 Ala. 108.]
Though the vessel be disabled on the voyage, and it becomes reasonable, under the
circumstances of the case, that the master should procure another vessel to send on the
cargo, and though he may not be able to do it at the port of distress, or at a contiguous
port, yet it has been held not to be a proper case for abandonment of the cargo, inas-
[434]
LECT. XLVIII.]
* 322
OF PERSONAL PROPERTY.
may be a technical total loss to the owner if the things be taken
from his free use and possession. Such are the common cases
of total losses by embargoes, by captures, and by restraints, and
detainments of princes. The right to abandon exists when the
ship, for all the useful purposes of the voyage, is gone from the
control of the owner; as in the cases of submersion, or shipwreck,
or capture, and it is uncertain, or the time unreasonably distant,
when it will be restored in a state to resume the voyage; or when
the risk and expense of restoring the vessel are disproportioned
to the expected benefit and objects of the voyage. All these
general doctrines concerning abandonment have been entirely
incorporated into our American law, and they exist to all essential
purposes in the French jurisprudence. (b)
* The case of Peele v. Merchants' Insurance Company (a) *322
contains a very elaborate review of the whole law of aban-
donment, and the conclusion is, that the right of abandonment is
to be judged of by all the circumstances of each particular case
existing at the time of abandonment, and that there was no gen-
eral rule that the injury to the ship by the perils insured against,
must in all cases exceed one half her value, to justify an aban-
donment. The law, as declared in the great cases before Lord
Mansfield, of Goss v. Withers, Hamilton v. Mendes, and Milles v.
Fletcher, has been acted upon for half a century, and their doc-
trine has never been shaken; and the case of M'Iver v. Hender-
much as the cargo in the given case was light, and might without great expense have
been transported to another port for shipment. Bryant v. Commonwealth Ins. Co., 6
Pick. 131. Each case will be governed on a reasonable view of its special circum-
stances. If the master must send the cargo, not to a contiguous port, but to distant
places for reshipment, and the transportation be difficult and hazardous, the master
is not bound to attempt to reship the cargo. Treadwell v. Union Ins. Company,
6 Cowen, 270. Vide supra, 213.
(b) Emerigon, ii. 194–197; Pothier, des Ass. n. 131, 138; Gardiner v. Smith, 1
Johns. Cas. 141; Abbott v. Broome, 1 Caines, 292; U. Ins. Company v. Robinson,
2 Caines, 280; Lee v. Boardman, 3 Mass. 238; Marine Ins. Company v. Tucker, 3
Cranch, 357: Chesapeake Ins. Company v. Stark, 6 id. 268; Peele v. Merchants' Ins.
Company, 3 Mason, 27. Submersion is not per se a total loss of a vessel. It will
depend upon a circumstance whether it be or be not total. Sewall v. United States
Ins. Company, 11 Pick. 90. When the insurance is on the ship, it is a total loss, if at
the time of abandonment the ship was absolutely lost to the owner, as by capture or
detention; or she was in such a state that the expense of making her available would
exceed half her value.
(a) 3 Mason, 27. See, also, Bradlie v. The Maryland Ins. Company, 12 Peters,
878, s. p.
[ 435 ]
* 323
[PART V.
OF PERSONAL PROPERTY.
son (b) left the law on the subject of abandonment exactly where
those cases had placed it. (c)
The French Ordinance of the Marine confined abandonment to
the five cases of capture, shipwreck, stranding, arrest of princes,
and an entire loss of the subject insured. (d) But the new com-
mercial code has modified and enlarged the privilege of abandon-
ment. It applies to the cases of capture, shipwreck, stranding
with partial wreck, disability of the vessel occasioned by perils of
the sea, arrest of a foreign power, or arrest on the part of the gov-
ernment of the insured after the commencement of the voyage,
and a loss or damage of the property insured, if amounting to at
least three fourths of its value. (e) The English and American
law of abandonment applies not only to those cases, but to every
case where the perils covered by the policy have occasioned a loss,
either of the subject or of the voyage. It is understood,
* 323 that mere *stranding of the ship is not, of itself, to be
deemed a total loss; yet it may be attended with circum-
stances that will justify an abandonment, even though the hull of
the ship should not be materially damaged; as if she be stranded
where there are no means of adequate relief, and the expense
of the removal would exceed the value of the ship. (a) The for-
eign writers distinguish innavigability from shipwreck, and there
has been some difficulty as to the true definition of ship-
wreck. (b) But the right to abandon does not turn upon
(b) 4 Maule & S. 576.
(c) In the case of The American Ins. Company v. Ogden, 20 Wend. 287, it was
held, that if the ground for abandonment, in the case either of a technical or actual
total loss, was the result of culpable negligence, or want of due diligence, on the part of
the owner or his agent, the insurer was not liable. And if there has been a want of
ordinary prudence in the owner in furnishing funds or credit to the master, to enable
him to make the necessary repairs, and the master was thereby deprived of the means
to obtain funds or credit, an abandonment cannot be made as for a constructive or
technical total loss.
(d) Ord. de la Mar. art. 46.
(e) Code de Commerce, art. 369.
(a) Bosley v. Chesapeake Ins. Company, 3 Gill & J. 450.
(b) There are two kinds of shipwreck: (1.) When the vessel sinks, or is dashed to
pieces. (2.) When she is stranded, which is, when she grounds, and fills with water.
The latter may terminate in shipwreck, or may not, and it depends on circumstances
whether it will or will not justify an abandonment. The shades of difference between
shipwreck of the two kinds, and wreck absolute and partial, and stranding with and without
wreck, are minutely stated by the French civilians. See Boulay-Paty, iv. 12-14, 230,
231, [Cours de Droit Com. tit. 10, sec. 16, and tit. 11, sec. 1,] and Ord. de la Mar. h. t., art.
46, which distinguishes between shipwreck, wreck, and stranding. In Bishop v. Pent
[436]
1
LECT. XLVIII.] OF PERSONAL PROPERTY.
324
* any definition, and the cases on the subject have been *324
governed by their own peculiar circumstances, connected
with the property at the time, and with reference to the general
principles and analogies of law. (a)
The English rule is, that an abandonment, though rightfully
made, is not absolute, but it is liable to be controlled by subse-
quent events; and that if the loss has ceased to be total before
action, the abandonment becomes inoperative. The rule was
suggested, but left undecided, in Hamilton v. Mendes, but it was
explicitly declared and settled in subsequent cases. (b) The Eng-
lish rule does not rest, however, without some distrust as to its
solidity. It was much doubted in the House of Lords, by Lord
Eldon, in Smith v. Robertson; (c) every question as to the prin-
ciple was expressly waived, and it has since been very much
shaken. (d) But in the United States a different rule prevails;
land, 7 B. & C. 219, 1 Mann. & Ry. 49, stranding was held to be when a ship, by acci-
dent, is on the ground or strand, and is injured thereby. A stranding in the sense of
a policy is, when a ship takes ground, not in the ordinary course of navigation, but
by accident, or the force of wind, or the sea, and remains stationary for some time.
The vessel must ground from an accident happening out of the ordinary and usual
course of navigation. She must be on the strand under extraordinary circumstances,
or from extraneous causes. Wells v. Hopwood, 3 B. & Ad. 20; Kingsford v. Mar-
shall, 8 Bing. 458; Lake v. Columb. Ins. Co., 13 Ohio, 48. But the cases make a
stranding to depend so much upon special circumstances, and they make so many
distinctions, that it is difficult to give any precise definition or rule uniformly appli-
cable to the subject. M'Dougle v. Royal Exchange Assurance, 4 Camp. 283; 4
Maule & S. 503; Rayner v. Godmond, 5 B. & Ald. 225; Burnett v. Kensington, 1
Esp. 417; Carruthers v. Sydebotham, 4 Maule & S. 77; Barrow v. Bell, 4 B. & C. 736,
are cases to show the perplexities and nice refinements on this point. Innavigability,
in the sense of insurance law, is when the vessel, by a peril of the sea, ceases to be
navigable by irremediable misfortune: in eum statum qui providentia humana reparari
non potest. The ship is relatively innavigable when it will require almost as much
time and expense to repair her, as to build a new one. This is the doctrine of Targa
and Emerigon, and of the judicial decisions which the latter reports. Targa, c. 54,
p. 239, and c. 60, p. 256; Emerigon, i. 591-598. Innavigability, when duly estab
lished, constitutes a total loss, and a right to abandon. When it is established by an
official survey and report, (procés verbaux,) it creates a presumptio juris of innaviga-
bility, by a peril of the sea, against the insurer, and which he may contradict; but
without such a survey, which is required by the French ordinances, the presumption
is juris et de jure against the insured, that the innavigability proceeded from inherent
defects. Emerigon, i. 577.
(a) Wood v. L. & K. Ins. Company, 6 Mass. 479; Peele v. Merchants' Ins. Com-
pany, 3 Mason, 42, 43, 44.
(b) Bainbridge v. Neilson, 10 East, 329; Patterson v. Ritchie, 4 Maule & S. 394.
(c) 2 Dow, 474.
(d) Holsworth v Wise, 7 B. & C. 794. It was there held, that if a ship has been
[ 437 ]
* 325
[PART V.
OF PERSONAL PROPERTY.
and it is well settled in American jurisprudence, that an abandon-
ment once rightfully made is binding and conclusive between the
parties, and the rights flowing from it become vested rights, and
are not to be devested by subsequent events. (e) The right to
abandon is to be tested by the actual facts at the time of
* 325 the abandonment, * and not upon the state of the informa-
tion received. (a) The opinion of Lord Mansfield, in Ham-
ilton v. Mendes, was very destitute of precision on this point, and
the American rule is founded on principles of equity and public
convenience. The opposing doctrine, said a great authority, (b)
appeared to trench very much upon the true principles of aban-
donment, and not to be supported by very exact or cogent anal-
ogies. The Court of Session in Scotland even went so far as to
consider the right to abandon to depend merely upon the informa-
tion at the time, and that if the right be exercised bona fide upon
the state of facts received, the transaction was closed and defin-
itive, and was not to be opened or disturbed by any subsequent
event, or any event of which the intelligence subsequently
arrived. (c)
once necessarily abandoned, the owners may recover for a total loss, though she is
afterwards recovered and brought into port. This was coming to the true and sound
doctrine on the subject. See, also, Naylor v. Taylor, 9 id. 718. [But see 331, n. 1.]
(e) Bradlie v. Maryland Ins. Company, 12 Peters, 378. In Peele v. Suff. Ins. Com-
pany, 7 Pick. 254, it was held, that if a vessel be stranded and abandoned to the
underwriters, and they take and repair her at a cost of less than fifty per cent of her
value, they may in a reasonable time return her to the owners without their consent,
and exonerate themselves. [Ante, 320, n. (d).] A contrary doctrine was held in Peele
v. Merchants' Ins. Company, 2 Mason, supra; and the French law is clearly otherwise
in a case proper for abandonment, and abandonment duly made. Emerigon, Traité
des Ass. ii. 195; Pothier, Traité d'Ass. n. 138; Pardessus, Cours de Droit Com. iii. n.
854.
(a) Church v. Bedient, 1 Caines Cas. 21; Depau v. Ocean Ins. Company, 5 Cowen,
63; Dutilh v. Gatliff, 4 Dallas, 446; Marshall v. Delaware Ins. Company, 2 Wash. 54;
4 Cranch, 202; Rhinelander v. Ins. Company of Pennsylvania, 4 Cranch, 29; Lee v.
Boardman, 3 Mass. 238; Wood v. L. & K. Ins. Company, 6 id. 479; Adams v. Dela-
ware Ins. Company, 3 Binney, 287; Peele v. Merchants' Ins. Company, 3 Masan, 27;
Maryland and Ph. Ins. Company v. Bathurst, 5 Gill & J. 159; Bradlie v. Maryland
Ins. Company, 12 Peters, 378.
(b) Story, J., 3 Mason, 37.
(c) Smith v. Robertson, 2 Dow, 474. In the opinion in Peele v. Merchants' Ins.
Company, supra, 322, it was observed by the court, in reference to the definitive
nature of an abandonment, when once duly made, that it was no slight recom-
mendation of the American doctrine, that it stands approved by the cautious learning
of Valin, the moral perspicacity of Pothier, and the practical and sagacious judgment
of Emerigon." But an observation of Valin, in the place referred to, makes me
[438]
LECT. XLVIII.] OF PERSONAL PROPERTY.
* 326
* 326
*There is a material difference between an insurance on
ship and on cargo, and some confusion is introduced by
blending the cases; but the essential principles of abandonment,
with some variation, apply equally to each. A total loss of cargo
may be effected, not merely by destruction, but, in very special
cases, by a permanent incapacity of the ship to perform the voyage,
as when it produces a destruction of the contemplated adventure.
A loss of the voyage for the season, or a case of retardation only,
unless the cargo be of a perishable nature, does not amount to a
total loss of the cargo. (a) It is only in particular cases that the
loss of the voyage will be a ground of abandonment of the cargo.
The goods are not so necessarily connected with the ship, that if
the ship be lost, there must of course be a loss of voyage with
respect to the goods. In Gernon v. Royal Exchange Assurance, (b)
the ship was forced back by stress of weather, and the cargo found
to be so damaged as not to be in a state to send on, and an aban-
donment was held good. There must be an actual total loss, or
one in the highest degree probable, to justify an abandonment of
the cargo. (c) In Hudson v. Harrison, (d) it was admitted to be
extremely difficult to deduce any general rule from the circum-
stances under which the insured has a right to abandon the cargo.
It is a very entangled branch of the law of insurance. If the ship
has been lost and the cargo materially damaged, the cases and
text writers vary as to the right of the insured to abandon, or
whether he must send on the goods when half is saved, or a third,
or a quarter. (e) The doctrine of the old cases, that the insured
doubt whether he merited the eulogy, in respect to that point; for he says, that
though there should be information of a loss justifying an abandonment, yet, if the ship
should be repaired by the care, and at the expense of the insurer, he thinks the
insurer would have a right to compel the insured to receive back the vessel and
cargo, notwithstanding the abandonment, and put up with the payment of a partial
loss. Valin's Comm. lib. 3, tit. 6, art. 60. The opinion of Valin I take to be heresy
in American law, and it is pointedly condemned by Emerigon, ii. 195.
(a) Anderson v. Wallis, 2 Maule & S. 240; Everth v. Smith, ib. 278. Mere retarda-
tion of the voyage by a peril insured against, unless it produces a total incapacity of
the ship to perform the voyage, does not constitute a technical total loss of the ship.
Bradlie v. The Maryland Ins. Company, 12 Peters, 378.
(b) 6 Taunt. 383; [L. R. 4 Q. B. 687.]
(c) Anderson v. Wallis, 2 Maule & S. 240; Hunt v. Royal Exchange Ass., 5 id. 47;
Wilson v. Royal Exchange Ass. Company, 2 Camp. 623.
(d) 3 Brod. & B. 97.
(e) See supra, 212, 213, 321, note, when it is or is not the duty of the master to send
on the cargo by another vessel.
[439]
* 327
[PART V
OF PERSONAL PROPERTY.
*
lost, is narrowed.
A retardation is not
half, it was said the
*327 may abandon when the voyage is
Every such loss will not justify it.
sufficient. If the profits be reduced one
owner was not bound to prosecute the voyage; but every case
seems to rest upon its own circumstances.
When a case proper for abandonment exists, and it be duly
made, (a) the underwriter cannot intercept the exercise of the
right, and destroy its effect, by an offer to pay the amount of the
repairs. In a case proper for abandonment, the insured may
stand upon his rights, uncontrolled by the underwriter, for the
option to abandon rests with him, and not with the other party.
If by his acts and interference he shows that he intends to act as
owner, and elects to repair, he loses his right to abandon, or it is
a waiver of it, if made. (b) He may elect to repair the damage
at the expense of the insurer, even if it amounts to the whole
value of the ship; (c) and, on the other hand, he is not obliged,
against his consent, to take the remnants and surpluses of a lost
voyage, and claim under the policy the average or expenses
incurred by the calamity. This is the more recent, and, I think,
the more solid doctrine on the subject, and it is enforced with
great strength in the case of Peele v. Merchants' Insurance
Company, (d) which has fully investigated and explained all
the prominent points under this interesting title in the law of
insurance.
In Pole v. Fitzgerald, (e) decided in the Exchequer Chamber,
in the middle of the last century, on error from the K. B., it was
held, after great discussion and consideration, that on an insur-
ance of a ship for a voyage, it was not sufficient that the voyage
be lost, if the ship was safe. It was declared, that the insur-
ance was of the ship and not of the voyage, and the decision was
affirmed in the House of Lords, notwithstanding Lord Mansfield
made a very strong argument against it in his character of
counsel. (f) After Lord Mansfield came into the Court of K.
(a) To render an abandonment effectual, it is held that the cause of the loss of
the ship must be stated in the letter of abandonment, for the benefit of the insurer.
Hazard v. N. E. Marine Ins. Company, 1 Sumner, 218.
(b) Dickey v. N. Y. Ins. Company, 4 Cowen, 222; s. c. 3 Wend. 658 Columb.
Ins. Company v. Ashby, 4 Peters, 139.
(c) Story, J., in Humphreys v. Union Ins. Company, 3 Mason, 436.
(d) 3 Mason, 27.
(e) Willes, 641.
(ƒ) 5 Bro. P. C. 137-142; [4 Bro. P. C. (2d ed.) 439. Vide post, 331, n. 1.]
[ 440 ]
LECT. XLVIII.] OF PERSONAL PROPERTY.
* 329
B., he introduced and established * the doctrine which * 328
he had maintained as counsel, that on the insurance
of a ship for a specified voyage, a loss of either the ship, or the
voyage, was the same thing, and justified an abandonment. This,
according to Lord Eldon, (a) was an act of the King's Bench,
reversing a judgment of the Exchequer Chamber and the House
of Lords. The case of Fitzgerald v. Pole, after having slept
unnoticed and disregarded for half a century, was mentioned
with respect, first in the Supreme Court of New York, (b) and
then in Hadkinson v. Robinson, (c) and more recently by Lord
Ellenborough, (d) who intimated, that the loss of the voyage had
nothing to do with the loss of the ship, and that it was well to
resort to the good sense of the judgment in Pole v. Fitzgerald, to
purify the mind of those generalities. It is settled, that a loss
of the voyage as to the cargo is not a loss of the voyage as to the
ship, for a policy on a ship is an insurance of the ship for the
voyage, and not an insurance on the ship and the voyage. (e)
And, under this qualification, I apprehend the doctrine of the
case of Manning v. Newnham to be the established doctrine, that
if the ship be prevented by a peril within the policy from proceed-
ing on her voyage, and be irreparably injured, and the voyage be
thereby lost, it is a total loss of ship, freight, and cargo, provided
no other ship can be procured to carry on the cargo. (f) It must
be admitted, however, that the extreme variety and apparent con-
flict of many of the cases on this subject of abandonment, are
enough to justify the complaint of Lord Eldon, that there is as
much uncertainty on this as on any other branch of the law.
* It is understood to be a fixed rule, that if the ship be *329
so injured by perils as to require repairs to the extent of
more than half her value at the time of the loss, the insured may
abandon; for if ship or cargo be damaged so as to diminish their
value above half, they are said to be constructively lost. The rule
came from the French law, and is to be found in the treatise of
Le Guidon, (a) where it is applied to the case of goods; and in
(a) 1 Dow, 359; 2 id. 477.
(c) 3 Bos. & P. 388.
(d) [Falkner v. Ritchie,] 2 Maule & S. 293.
(b) 1 Johns. Cas. 30J.
(e) Alexander v. Baltimore Ins. Company, 4 Cranch, 870. See, also, 1 Mason,
343.
(f) Condy's Marshall, 585, 586; [3 Doug. 130; 2 Camp. 624, n.]
(a) Condy, c. 7, art. 1, 9.
[441]
* 330
[PART V.
OF PERSONAL PROPERTY.
respect to both ship and cargo, the rule has been incorporated
into the American jurisprudence. (b) There has been consider-
able discussion in the text-books, as to the right to abandon, when
a part only of the property insured is damaged above a moiety, or
lost, and this will depend upon the manner in which it is insured.
If the insurance be upon different kinds of goods indiscriminately,
or as one entire parcel, it is then an insurance upon an integral
subject, and an abandonment of part only cannot be made. But if
the articles be separately specified and valued, it has been consid-
ered so far in the nature of a distinct insurance on each parcel,
that the insured was allowed to recover as for a total loss of the
damaged parcel, when damaged above a moiety in value. Mr.
Phillips has suggested a doubt whether this distinction be well
founded. The rule was taken from the French treatises, and
unless the different sorts of cargo be so distinctly separated and
considered in the policy, as to make it analogous to distinct
*330 insurances on distinct parcels, there *cannot be a separate
abandonment of a part of the cargo insured. (a) 1
The meaning of the words in the rule," one half of the value,"
has been held to be the half of the general market value of the
vessel at the time of the disaster, and not her value for any par-
ticular voyage or purpose. (b) The expense of the repairs at the
(b) Valin's Comm. ii. 101; Pothier, d'Ass. n. 121; Code de Commerce, art. 369;
Gardiner v. Smith, 1 Johns. Cas. 141; Dickey v. N. Y. Ins. Company, 4 Cowen, 222;
Marcardier v. Chesapeake Ins. Company, 8 Cranch, 39; Ludlow v. Columbian Ins.
Company, 1 Johns. 335; Peters v. Phoenix Ins. Company, 3 Serg. & R. 25; Wood v.
L. & K. Ins. Company, 6 Mass. 479; Story, J., 3 Mason, 69. The loss must exceed
one half of the goods insured, or the gross amount paid for them. Budd v. Union
Ins. Company, 4 M'Cord, 1. In Hall v. Ocean Ins. Company, 21 Pick. 472, it was
held, that in making the estimate to ascertain whether the loss was technically total,
or to the amount of fifty per cent on the sum insured, including the premium, items
which should be carried to the amount of general average are not to be included.
(a) Guerlain v. Columbian Ins. Company, 7 Johns. 527; Deidericks v. Com. Ins.
Company, 10 id. 234; Condy's Marshall, 600; 2 Phillips on Insurance, 370; Valin
ii. 108; Pothier, h. t., n. 121, 131, 132; Emerigon, ii. 214; Le Guidon, c. 7, sec.
8, 9. In Seton v. Delaware Ins. Company, 2 Wash. 175, it was held, that a partial
loss of an entire cargo, by sea damage, if amounting to more than half, might, under
circumstances, be converted into a technical total loss; but not if a distinct part of the
cargo be destroyed, and the voyage be not thereby broken up.
(b) As the true basis of the valuation is the value of the ship at the time of the
disaster, if, after the damage is or might be repaired, the ship is not, or would not be
1 See, as to memorandum articles, ante,
296, n. 1, (d); and perhaps the same princi-
ples apply generally. See 331, n. 1, (a)
ad f., as to freight.
[ 442 ]
LECT. XLVIII.]
* 331
OF PERSONAL PROPERTY.
port of necessity, including the expense of getting the ship afloat,
if stranded, is the true test for determining the amount of the
injury, and such sum is to be taken as will fully reinstate the ves-
sel, and, in general, with the same kind of materials of which she
was composed at the time of the disaster. It has also been con-
sidered that the three objects of insurance, vessel, cargo, and
freight, stand on the same ground as to a total loss by a deteri-
oration of more than one half of the value. (c)
* 331
In ascertaining the value of the ship, and the quantum of
expense or injury, difficulties have arisen, and they were fully
discussed, and very clearly explained, in Peele v. Merchants'
Insurance Company. (d) The valuation in the policy is con-
clusive in case of a total loss; but in some respects it is inap
plicable for the purpose of ascertaining the quantum of injury in
case of a partial loss of goods. The rule in that case is, to ascertain
the amount of injury by the difference between the gross
proceeds of the sound and damaged goods. (e) *This is
also the true rule as to the ship, though there is greater
difficulty in the application. The value of the ship at the time
and place of the accident is the true basis of calculation. (a) And
with respect to the arbitrary and fluctuating rule as to the allow-
ance to one third new for old, there is no doubt of its application
worth, at the place of repairs, double the cost of repairs, it is a technical total loss.
Bradlie v. The Maryland Ins. Company, 12 Peters, 378. [Fulton Ins. Co. v. Good.
man, 32 Ala. 108. See 331, n. 1, (a).]
(c) Center v. American Ins. Company, 7 Cowen, 564; 4 Wend. 45, s. c.; Sewall
v. United States Ins. Company, 11 Pick. 90.
(d) 3 Mason, 70–78.
(e) Johnson v. Sheddon, 2 East, 581.
(a) Patapsco Ins. Company v. Southgate, 5 Peters, 604. The valuation in the
policy at the home port, or in the general market of other ports, constitutes no ingre-
dient in ascertaining whether the injury by the disaster is more than one half of the
vessel or not. Bradlie v. The Maryland Ins. Company, 12 Peters, 378. This deci-
sion, pronounced by Mr. Justice Story, was in conformity with the doctrine declared
by him in the case of Peele v. The Merchants' Ins. Company, 3 Mason, 27; but a
different rule has been adopted in Massachusetts and New York, in avowed contra-
diction to the decision in the federal court. It is held, in the courts in those states,
that the value of the vessel, as agreed upon by the parties and inserted in the policy,
is to be taken as the true value, in determining whether the repairs could exceed half
her value, in reference to the question of abandonment; and that it governs, as well
when the assured claims for a technical total loss, as when he claims for a loss by a
total destruction of the ship; and further, that in determining the same question, the
deduction of one third new for old was to be made from the estimated amount of the
repairs. Deblois v. The Ocean Ins. Company, 16 Pick. 312; American Ins. Company
v. Ogden, 20 Wend. 287, 297-300.
[ 443 ]
* 331
[PART V.
OF PERSONAL PROPERTY.
in cases of partial loss; but such a deduction is not allowed, and
does not apply to cases of total loss. (b)¹ The reason of this
(b) Peele v. The Merchants' Ins. Company, 3 Mason, 28, 73–77.
1 Total Loss. (a) What is. The
American rule as to what constitutes a
total loss is stated in Wallerstein v. Co-
lumbian Ins. Co., 44 N. Y. 204, 217; Lock-
wood v. Sangamo Ins. Co., 46 Mo. 71.
In some states the deduction of one third
new for old is allowed in estimating a total
loss. Kettell v. Alliance Ins. Co., 10
Gray, 144, 154; Heebner v. Eagle Ins.
Co., ib. 131, 143; Pierce v. Columbian
Ins. Co., 14 Allen, 320, 322; Allen v.
Commercial Ins. Co., 1 Gray, 154; Fiedler
v. N. Y. Ins. Co., 6 Duer, 283. But after
a substantial part, though less than half
in value, of goods insured as one subject,
has arrived in safety at the port of des-
tination, the owner cannot abandon to the
insurers and recover for a total loss.
Forbes v. Manufacturers' Ins. Co., 1 Gray,
371; Pierce v. Columbian Ins. Co., 14
Allen, 320, 322. The English rule is that
a ship is totally lost, although it is physi-
cally possible to repair her, if it is im-
practicable to do so, as when it can only
be done at an excessive or unreasonable
cost. To determine whether it is practica-
ble to make the repairs or not, the question
is what a prudent owner uninsured would
do under the circumstances; and repairs
are, practically speaking, impossible, and
the loss is total, if the ship, when repaired,
will not be worth the sum which it would
be necessary to expend upon her. Irving
v. Manning, 1 H. L. C. 287, 307; Moss v.
Smith, 9 C. B. 94, 103; Knight v. Faith,
15 Q. B. 649, 662; Grainger v. Martin, 2
Best & S. 456; 4 B. & S. 9; Kemp v.
Halliday, 6 Best & S. 723, 753; L. R. 1
Q. B. 520; Copelin v. Phoenix Ins. Co., 46
Mo. 211. This test applies although the
ship is insured "against total loss only."
Adams v. Mackenzie, 13 C. B. n. s. 442;
Heebner v. Eagle Ins. Co., 10 Gray, 131;
Greene v. Pacific M. Ins Co., 9 Allen,
217; ante, 296, n. 1. But see Willard v.
Millers' & Manufacturers' Ins. Co., 24 Mo.
561, 566; 2 Pars. on Mar. Ins. ch. 4, sec.
2, n. 4. In Kemp v. Halliday, sup., the
amount which would be contributed by
the cargo toward the expense incurred for
the common benefit in raising ship and
cargo was deducted, in determining
whether the ship was a total loss, but the
court refrained from laying down a gen-
eral rule. But according to the American
cases of Greely v. Tremont Ins. Co., 9
Cush. 415; Ellicott v. Alliance Ins. Co.,
14 Gray, 318; Paddock v. Commercial
Ins. Co., 104 Mass. 521, 536; Fiedler v.
New York Ins. Co., 6 Duer, 282, general
average losses are not to be added to a
partial loss to make up a constructive
total loss of the ship. As to the method
of estimating the value of the ship, see
African St. Co. v. Swanzy, 2 K. & J. 660,
664, and Grainger v. Martin, sup.
The doctrine of Fitzgerald v. Pole, ante,
327, 328, is approved in later cases, and is
law, both in this country and in England.
Greene v. Pacific M. Ins. Co., 9 Allen,
217, 224. It is pushed farther in England,
and leads to the rule mentioned on p.
324. A notice of abandonment may have
been justifiably given, yet if the ultimate
consequence of the peril insured against
is merely the loss of a voyage, a total loss
cannot be claimed. But in order to
reduce the total to a partial loss, the thing
insured must be in existence under
such circumstances that the assured may
by reasonable means obtain it. Lozano
v. Janson, 2 El. & El. 160, 177; Kemp v.
Halliday, 6 Best & Sm. 723, 754. But an
abandonment accepted under no mistake
of fact is irrevocable. Arnould, 4th ed.
858.
The doctrine of constructive total loss
would not apply to policies on bottomry
loans, for the ship must be actually and
totally destroyed in order to discharge
[ 444 ]
LECT. XLVIII.]
* 331
OF PERSONAL PROPERTY.
allowance to the underwriter, of one third of the expense of the
reparations, is on account of the better condition in which the
the borrower. Post, 359; Broomfield v.
Southern Ins. Co., L. R. 5 Ex. 192; The
Great Pacific, Stephens v. Broomfield, L.
R. 2 P. C. 516. But a cargo is totally lost on
the same general principle which is applied
to ships if it would cost more to deliver it
in a marketable condition at its place of
destination than it would be worth there.
Farnworth v. Hyde, L. R. 2 C. P. 204;
Rosetto v. Gurney, 11 C. B. 176, 186 (a
case of memorandum articles, ante, 296,
n. 1); Dent v. Smith, L. R. 4 Q. B. 414,
446; Stringer v. English & Sc. M. Ins. Co.,
ib. 676; L. R. 5 Q. B. 599. The first of
these cases shows that all the extra ex-
penses consequent upon perils of the sea
are to be taken into account; but these
do not include the original freight, but
only the excess, if any, over that sum
which the goods owner has to pay for
carriage from the place of distress to the
place of destination, in case the ship owner
is excused from carrying the goods on.
Goods lost by jettison are taken into the
estimate by Forbes v. Manuf. Ins. Co., 1
Gray, 371.
But the prudent owner principle only
applies to constructive total loss of ship
or constructive total loss of cargo by
damage thereto, not to expense and labor
of earning freight. Freight is not lost
by perils of the sea, simply because the
cost of the repair of sea damage necessary
to earn it would be greater than the
freight; Moss v. Smith, 9 C. B. 94; Phil-
pott v. Swann, 11 C. B. N. s. 270, 282;
Allen v. Mercantile M. Ins. Co., 44 N. Y.
437, 441; nor because a cargo which
could have arrived in specie with safety to
the vessel, on arrival would not be worth
the sum payable for freight. Lord v.
Neptune Ins. Co., 10 Gray, 109; Parsons
v. Manufacturers' Ins. Co., 16 Gray, 463,
468. But if the ship owner, in order to
carry on the cargo with safety, must
incur an expense which would greatly
exceed the value of the cargo on arrival,
there is a total loss of freight; Michael
v. Gillespy, 2 C. B. N. s. 627; and if the
ship is incapacitated by perils insured
against from earning the freight, and the
owner as a prudent man is justified in
abandoning her, the loss of the freight in
such a case does not arise from the act of
the party, but from the peril insured
against. Potter v. Rankin, L. R. 5 C. P.
341, 374, 379, 365, reversing s. c. L. R. 3
C. P. 562. See Currie v. Bombay Native
Ins. Co., L. R. 3 P. C. 72, 83 ; Kidston v.
Empire M. Ins. Co., L. R. 2 C. P. 357,
364; Allen v. Mercantile M. Ins. Co., 44
N. Y. 437, 443. So the owner of cargo
can recover as for a total loss of cash on
account of freight, ante, 270, n. 1, if the
vessel cannot be repaired except at an
expense exceeding her value when re-
paired, together with the freight which
she would have earned on the voyage.
De Cuadra v. Swann, 16 C. B. N. s. 772.
A total loss of part of the freight insured
is a partial loss. Lord v. Neptune Ins.
Co., 10 Gray, 109, 129; Parsons v. Manuf.
Ins. Co., 16 Gray, 463, 468. See, further,
as to insurance on freight, ante, 270,
n. 1.
(b) Notice of Abandonment. — In Knight
v. Faith, sup., notice of abandonment was
thought necessary in this class of cases.
See also Jardine v. Leathley, 3 Best &
Sm. 700, 707; American Ins. Co. v.
Francia, 9 (Barr) Penn. St. 390. But
this rule must be taken with the limitation
that it attaches only where there is some-
thing of appreciable value, however small
that value may be, to relinquish to the
insurer. An idle ceremony is not required.
Potter v. Rankin, L. R. 5 C. P. 341, 371;
Kemp v. Halliday, 6 Best & Sm. 723, 753;
Lord v. Neptune Ins. Co., 10 Gray, 109,
116; Stewart v. Greenock M. Ins. Co., 2
H. L. C. 159, 185. Even stronger language
will be found in Bullard v. Roger Williams
[445]
* 331
[PART V.
OF PERSONAL PROPERTY.
ship is put by them than she was when insured, and the owner,
when he comes again into the possession of his vessel, receives
Ins. Co., 1 Curtis, 148; King v. Walker,
3 H. & C. 209, 212. And see Graves v.
Washington M. Ins. Co., 12 Allen, 391;
Ins. Co. v. Updegraff, 21 Penn. St. 513.
See, further, ante, 296, n. 1, (b).
As to what is sufficient notice, see
Currie v. Bombay N. Ins. Co., L. R. 3 P.
C. 72; King v. Walker, 3 Hurlst. & C.
209; Thomas v. Rockland Ins. Co., 45
Me. 116. If the insurer takes possession
of the vessel to repair her, as mentioned
320, n. (d), a failure to restore her in a
reasonable time has the same effect as an
acceptance. Copelin v. Ins. Co., 9 Wall.
461; 46 Mo. 211; Norton v. Lexington
Ins. Co., 16 Ill. 235.
The gen-
(c) Effects of Abandonment.
eral doctrine that an abandonment relates
back from the time of acceptance to the
time of the loss is confirmed by Sun Mut.
Ins. Co. v. Hall, 104 Mass. 507. It trans-
fers the interest of the assured no further
than the interest is covered by the policy.
Arn. 4th ed. 848; Cincinnati Ins. Co. v.
Duffield, 6 Ohio St. 200. It will not devest
a right of action, e.g. for conversion of
the subject matter, which vested in the
assured between the loss and the accept-
ance, but the action will be maintained in
his name for the benefit of the insurers.
Clark v. Wilson, 103 Mass. 219; Hayward
v. Cain, 105 Mass. 213; Quebec Fire Ass.
Co. v. St. Louis, 7 Moore P. C. 286, 316.
Vide post, 371, n. (e); 376, n. 1, as to
mortgagees. Conversely the fact that the
assured has a distinct right against some
other person will not postpone the liability
of the underwriters. They must pay the
amount claimed in the first instance, and
will then be entitled to use the name of
the assured as just stated. Dickenson v.
Jardine, L. R. 3 C. P. 639, 644.
It has been said that abandonment is
not necessary to enable the insurers to
have the benefit, by way of salvage, of
fruits or results of the subject matter
which is specifically and actually totally
lost, such as the proceeds of the sale of
the hides which were a total loss before
the sale, in Roux v. Salvador, ante, 296,
n. 1. If such proceeds have been actually
realized or received by the assured, the
amount will be deducted from the total
loss on adjustment. Lord v. Neptune
Ins. Co., 10 Gray, 109, 116; Prince v.
Ocean Ins. Co., 40 Me. 481; Thomas v.
Rockland Ins. Co., 45 Me. 116, 120. Com-
pare Stringer v. English & Sc. M. Ins. Co.,
L. R. 5 Q. B. 599, 606. See also North of
England Ins. Ass. v. Armstrong, L. R. 5
Q. B. 244; ante, 274, n. 1.
(d) It follows from the effects of aban-
donment that it can only be made by the
owner of the interest insured or his agent.
Jardine v. Leathley, 3 Best & Sm. 700.
(e) The duty of the assured to do his
utmost to avert total loss, 331, is embodied
in the suing and laboring clause of many
policies, by which it is expressly stipulated
that his doing so shall not prejudice the
insurance, &c. Stringer v. English & S.
M. Ins. Co., L. R. 4 Q. B. 676, 686; ante,
296, n. 1, (e); post, 340, n. 1. Hickie v.
Rodocanachi, 4 Hurlst. & N. 455, 467,
stated infra, shows that when the master
leaves the insured vessel, which has
become the insurer's property, and em-
ploys himself in hiring another ship and
forwarding the cargo by that, he is not to
be regarded as acting on behalf of the
underwriter rather than for his own
employer, the former owner.
(ƒ) Right of Abandonees to Freight.
The American rule of apportionment, pro
rata itineris, stated post, 333, is sanctioned
by Buffalo City Bank v. N. W. Ins. Co.,
30 N. Y..251, 253; Lord v. Neptune Ins.
Co., 10 Gray, 109, 123. The English rule
that it passes to the insurers, post, 334, by
Stewart v. Greenock M. Ins. Co., 2 H. L.
C. 159; 1 Macq. 328; Green v. Briggs, 6
Hare, 395, 404. But the English courts
[446]
LECT. XLVIII.]
332
OF PERSONAL PROPERTY.
the benefit of the repairs. But neither the reason of the rule,
nor the rule itself, applies to the case of a ship suffering a partial
loss on her first voyage, when she is new, and cannot be made
better by repairs. (c) The half value which authorizes an aban-
donment is half the sum which the ship, if repaired, would be
worth without any such deduction. (d)
Upon a valid abandonment, either of the vessel or of the cargo
insured, the master becomes the agent of the insurer, and the
insured is not bound by his subsequent acts unless he adopts
them. (e) The owner or insured, equally with the master, becomes
the agent of the insurer on abandonment, and he cannot purchase
in the property on his own account, without the consent of his
principals; and if he does, it revokes the abandonment, and turns
the total into a partial loss. (f) It is the duty of the master,
resulting from his situation, to act with good faith, and care and
diligence, for the protection and recovery of the property,
for *the benefit of whom it may eventually concern. The *332
master of an insured ship injured by the perils of the sea,
and not competent to complete the voyage, may sell her in a case
of necessity, as when the ship is in a place in which she cannot be
repaired; or the expense of repairing her will be extravagant, and
exceed her value; or when he has no moneys in his possession,
and is not able to raise any. (a) In cases of capture he is bound,
(c) In Pirie v. Steele, 8 Carr. & P. 200, it was a matter of dispute when a vessel
may be said to be on her first voyage. Lord Abinger thought the best method was
to make the deduction of one third new for old depend upon the age of the ship, to
be specified in the policy.
(d) Dupuy v. U. Ins. Company, 3 Johns. Cas. 182. Contra, Smith v. Bell, 2
Caines Cas. 153; Coolidge v. Gloucester Ins. Company, 15 Mass. 341; Peele v. Marine
Ins. Company, 3 Mason, 76, 77; Williams v. Suffolk Ins. Company, 3 Sumner, 270.
The extent of loss, in the case of a ship, says Boulay-Paty, is estimated by a com-
parison of the value in the policy with the value at the place of loss, and not with
. the amount of the expense requisite to repair. Cours de Droit Com. iv. 252.
(e) 2 Phillips on Ins. 439, 449; 7 Johns. 514; 9 id. 21; 13 id. 451; 4 Peters, 139;
Natchez Ins. Co. v. Stanton, 2 Smedes & M. 340.
(ƒ) Robertson v. Western M. & F. Ins. Company, 19 La. 227.
(a) Somes v. Sugrue, 4 Carr. & P. 276.
do not carry that principle so far as to
allow the insurers any thing in the nature
of freight for the carriage of the ship-
owner's own goods before the loss. They
only allow for the subsequent carriage.
Miller v. Woodfall, 8 El. & Bl. 493. Hickie
v. Rodocanachi, 4 Hurlst. & N. 455, further
limits the right of the abandonees to
freight earned by the insured ship. It
does not extend to that earned by for-
warding the cargo in another vessel.
[ 447]
* 333
[PART V.
OF PERSONAL PROPERTY.
if a neutral, to remain and assert his claim until condemnation,
or the recovery be hopeless. (b) His wages, and those of the crew,
are a charge on the owner, and ultimately, in case of recovery,
to be borne as a general average by all parties in interest; and
if the abandonment be accepted, the underwriter becomes owner
for the voyage, and in that character liable for the seamen's wages,
and entitled to the freight subsequently earned. (c) If the mas-
ter purchases in the vessel, or ransoms her, the insurer will be
entitled to the benefit of the purchase or composition; and, on
the other hand, if the insured affirms the purchase of the master,
it will be at the option of the insurer a waiver of the abandon-
ment. The insurer can accept of the repurchase of the master,
as his constructive agent, and affirm the act, or he may leave it
to fall upon the master. (d)
The assured has the right of abandoning the freight when there
has been a constructive total loss of the ship; and he has sus-
tained a total loss of the freight, if he abandons the ship to the
underwriters on the ship, when the case justifies it, for after such
abandonment, he has no longer the means of earning the freight,
or of receiving it if earned, for the freight goes to the
* 333 underwriters on the ship. (e) But it has been a very
controverted question, whether an abandonment of the
ship transferred the freight in whole or in part. It was finally
settled in the jurisprudence of New York and of Massachusetts,
and adopted as the true rule in the Circuit Court of the United
States for Massachusetts, that on an accepted abandonment of
the ship, the freight earned previous to the disaster was to be
(b) Marshall v. Union Ins. Company, 2 Wash. 152. The duty of the mariners is
the same. The Saratoga, 2 Gall. 164; Brown v. Lull, 2 Sumner, 443.
(c) Hammond v. Essex Fire and Marine Ins. Company, 4 Mason, 196. It has
been made a question whether the underwriter, after an accepted abandonment, is
bound, in his new character of owner, to go on and complete the voyage. In Case
v. Davidson, 5 Maule & S. 89, Holroyd, J., was of opinion, that he was under no such
obligation to the freighter, whose rights as owner of the goods were personal, lying
in contract with the ship owner, and not running with the ship. There is a suggestion
of Mr. Justice Putnam, to the same effect, in Coolidge v. Gloucester Marine Ins. Com-
pany, 15 Mass. 343. The underwriter cannot claim salvage property unless there has
been an abandonment of the property made and accepted. The Ship Henry Ewbank,
1 Sumner, 400.
(d) Saidler v. Church, cited in 2 Caines, 286; United Ins. Company v. Robinson,
ib. 280; Jumel v. Marine Ins. Company, 7 Johns. 412; Willard v. Dorr, 3 Mason,
161; Boulay-Paty, iv. 309, 310.
(e) Benson v. Chapman, 6 Mann. & Gr. 810; [s. c. 2 H. L. C. 696; ante, 331, n. 1, (a).]
[ 448 ]
LEOT. XLVIII.] OF PERSONAL PROPERTY.
* 334
retained by the owner, or his representative, the insurer on the
freight, and apportioned pro rata itineris; and that the freight
subsequently earned went to the insurer on the ship. (a) In the
case of Armroyd v. Union Insurance Company, (b) the question
was raised, but left undecided, whether the entire, or only a pro
rata freight, in such a case, went, on abandonment, to the insurer
of the ship. This litigated question has now been settled
in England; and in Case v. Davidson, (c) where *ship * 334
and freight were separately insured, and each subject
abandoned as for a total loss, it was adjudged that the abandon-
ment of the ship transferred the freight as an incident to the ship,
and that an abandonment was equivalent to a sale of the ship to
the abandonee. (a) 1 The French jurisprudence on this subject
has been equally embarrassing and unsettled. The Ordinance of
1681 had no textual regulation relative to freight, in cases of
abandonment. It was left to the decisions of the tribunals, and
they denied to the insurer on the ship any freight for the goods
saved. Valin exposed the error, (b) and maintained that freight
on abandonment, whether paid in advance or not, ought to go to
the insurer. In 1778, it was settled at Marseilles, under the
sanction of Emerigon, that freight was an accessory to the ship;
and in abandoning the ship, the freight acquired during the voy-
(a) United Ins. Company v. Lenox, 1 Johns. Cas. 377; 2 id. 443; Davy v. Hallet,
3 Caines, 20; Marine Ins. Company v. United Ins. Company, 9 Johns. 186; Coolidge
v. Gloucester Marine Ins. Company, 15 Mass. 341; Hammond v. Essex Fire and
Marine Ins. Company, 4 Mason, 196. So, in the case of a mortgage of a ship whilst
at sea, and possession taken under it, the accruing freight passes to the mortgagee, as
incident to the ship. Dean v. M'Ghie, 12 J. B. Moore, 185; [ante, 138, n. 1.]
(b) 3 Binney, 437.
(c) 5 Maule & S. 79; s. c. affirmed on error, 2 Brod. & B. 379. In this case the
underwriter claimed and recovered the entire freight, and no distinction was made
between the freight arising prior and subsequent to the loss, or prior and subsequent
to the abandonment.
(a) Mr. Benecke, Principles of Indemnity, 408, after giving an interesting history
of the progress of the question, concludes that the insurer on the freight, in case of
an abandonment of that also, will still have a personal claim on the owner for the
freight subsequently earned, and which, but for the abandonment, would have
belonged to him. Though the decision of Lenox and United Insurance Company, in
New York, supra, 333, n. [a], had been in print for eighteen or twenty years, it seems
to have been entirely unknown to the English courts, and to Mr. Benecke, in 1824,
though he has, in the course of his work, ransacked the local laws and ordinances of
most of the petty as well as great commercial states and cities in Europe.
(b) Comm. liv. 3, tit. 6, Des Assurances, art. 15.
1 See 331, n. 1, (ƒ).
VOL. III.
29
[449]
* 335
[PART V.
OF PERSONAL PROPERTY.
age went with it. (c) The ordinance of 1779 followed that doc-
trine, and declared that acquired freight already earned on the
voyage was insurable, and did not go with the ship on abandon-
ment, but that the future freight to be earned on the goods saved
would go to the insurer, if there was no stipulation to the con-
trary in the policy, saving the wages of seamen and bottomry
* 335 *liens. The new code (a) declared that the freight of
goods saved, though paid in advance, went, upon abandon-
ment, to the insurer on the ship. The construction given to the
code by the Royal Court at Rennes, in 1822, in the case of Blaize
v. Company of General Assurance at Paris, was, that the future
freight did not go to the insurer on the ship, but only the freight
on the goods saved and already earned at the time of the loss. (b)
(2) of the Adjustment of Partial Losses. In an open policy
the general rule is, that the actual or market value of the subject
insured is to be estimated at the time of the commencement of
the risk. The object of inquiry is the true value of the subject
put at risk, and for which an indemnity was stipulated; and the
question of total or partial loss does not turn on the estimated
value, in a valued policy, but upon a view of all the circumstances
attending the loss. (c)
There are two kinds of indemnity that may lawfully be obtained
under a contract of insurance. The first is, to pay what the goods
would have sold for if they had reached the place of destination;
and the value there consists of the prime cost and expenses of the
outfit, the freight and expenses at the port of delivery, and the
profit or loss arising from the state of the market. This species
of indemnity puts the insured in the same situation as if no loss.
had happened. The other kind of indemnity is to pay only the
first cost of the goods, or the market value at the time and place
of the commencement of the risk, and the expenses incurred; and
(c) Emerigon, ii. 217–227.
(b) Boulay-Paty, iv. 397-417.
(a) Code de Commerce, art. 386.
The question whether a loss
ship, the owner, as a man of
(c) Young v. Turing, 2 Mann. & Gr. 593, 597, 601.
be total or partial is, whether, in the condition of the
prudence and discretion, would, under the circumstances, if uninsured, have sold the
ship, or have endeavored to get her off and repair her. Domett v. Young, 1 Carr. &
M. 465, 8. P. A partial loss is frequently termed a particular average, in distinction
from a general average, and Mr. Benecke says, that it denotes, in general, every kind
of expense or damage, short of a total loss, and which is to be borne by the proprietor
of the particular concern; and he says it is expressive, and ought to be retained.
Stevens & Benecke on Average, by Phillips, 341.
[ 450 ]
LECT. XLVIII.]
* 336
OF PERSONAL PROPERTY.
this places the insured in the situation he was before he under-
took the adventure. (d) It annuls the speculation, and excludes
the consideration of any eventual profit or loss. The first kind
of insurance is, in the opinion of Mr. Benecke, (e) more con-
formable to the nature of mercantile transactions, and affords,
in every case, an exact indemnity; but the second kind of
insurance * of goods is the one in practice in England and * 336
other commercial countries. (a)
The actual or market value at the port of departure may fre
quently be different from the invoice price, or prime cost, and
when that happens, or can be ascertained, it is to be preferred. (b)
In Gahn v. Broome, (c) the invoice price was adopted as the
most stable and certain evidence of the actual value; but in
Le Roy v. United Insurance Company, (d) the invoice price
was understood to be equivalent to the prime cost, and that
was commonly the market value of the subject at the commence-
ment of the risk. The court, in that case, did not profess to lay
down any general rule, but they, nevertheless, adopted the prime
cost as being a plain and simple, and generally speaking, the best
rule by which to test the value of the subject. The English Court
of King's Bench in Usher v. Noble, (e) pursued, in effect, the same
rule, by estimating a loss on goods in an open policy at the invoice
price, at the loading port, and taking with that the premium of
insurance and commission, as the basis of the calculation. (ƒ)¹
438.
1
(d) See supra, 274, n. b; Marchesseau v. The Merchants' Ins. Co., 1 Rob. (La.)
(e) Treatise on the Principles of Indemnity in Marine Insurance, c. 1.
(a) The underwriters, in cases of partial loss, have nothing to do with remote or
contingent losses. They have nothing to do with bottomry bonds given to raise
money for repairs, though they must bear their share of the extra expenses of rais-
ing the money, as part of the partial loss. They are not bound to supply funds in
a foreign port for repairs. They are simply bound to pay the partial loss. Bradlie
v. The Maryland Ins. Company, 12 Peters, 378. In Oriental Bank v. Tremont Ins.
Company, 4 Met. 1, it was held, that interest is not payable on a policy of insur-
ance, if there be no agreement to pay interest, or the insurer be not in default
in payment.
(b) Snell v. Delaware Ins. Company, 4 Dallas, 430; Carson v. Marine Ins. Com-
pany, 2 Wash. 463.
(c) 1 Johns. Cas. 120.
(e) 12 East, 639.
(d) 7 Johns. 343.
(ƒ) This is admitted in the French law to afford all the indemnity that was stipu-
1 Under an open policy the goods are
estimated at their market value at the
inception of the risk, and not at the invoice
price. Warren v. Franklin Ins. Co., 104
[451]
* 337
[PART V.
OF PERSONAL PROPERTY.
If goods arrive damaged at the place of destination, the way
to ascertain the quantity of damage, either in open or valued
policies, is to compare the market price or gross amount of the
damaged goods with the market price or gross amount at which
the same goods would have sold if sound. (g) But this
* 337 mode of adjustment affords no perfect indemnity * to the
insured, for he has to pay freight for the goods as if they
were sound, and which freight he cannot recover of the insurer.
Various expedients have been suggested to remedy the incon-
venience, and the true one is to insure the sum to be paid for the
freight and charges at the port of delivery. (a)
We have seen, in a former lecture, (b) that an adjustment of a
general average at a foreign port is conclusive; and it is equally
so between the parties to the policy, and between the parties in
interest in the adventure. (c) It is the rule in all the foreign
countries for the underwriter to be bound by foreign adjustment
of general average, unless there be a stipulation to the contrary
in the policy, as is the case in those of the insurance companies
at Paris. (d) There is a material difference between the adjust-
ment of a partial loss, and of a general average, since the for-
mer is adjusted according to the value at the time and place of
departure of the vessel, and the latter according to the value at the
foreign port. (e) And as in cases of partial loss, it is to be adjusted
upon a comparison of the gross proceeds of the sound and damaged
goods, the underwriter has nothing to do either with the state of
the market, or with the loss on landing expenses, freight, and duty,
accruing in consequence of the deterioration; for no premium is
lated by the policy. Boulay-Paty, iv. 41, 42. The premium of insurance is consid-
ered as part of the value of the goods.
(g) Lewis v. Rucker, 2 Burr. 1167; Johnson v. Sheddon, 2 East, 581; Usher v.
Noble, 12 id. 639; Benecke on Indemnity, 426.
(a) Benecke on Indemnity, 17-26.
(b) Ante, Lect. 47, 244.
(c) Though the foreign adjustment be conclusive as between the parties to it, yet
the party to whom the contribution has been made is not restricted in his claim,
under the policy, to the sum apportioned as his share of the loss, when it falls short
of a complete indemnity. Thornton v. United States Ins. Company, 3 Fairfield, 154.
(d) Molloy, b. 2, c. 6, sec. 16; 7 Mass. 370; 5 Cowen, 63; Benecke on Indemnity,
331.
(e) Emerigon, i. 659; Ord. de la Mar. tit. Du Fret, art. 6.
Mass. 518. The percentage of that value tained as stated in the next paragraph of
to be paid by the underwriters is ascer-
ascer- the text.
[ 452 ]
LECT. XLVIII.]
* 338
OF PERSONAL PROPERTY.
paid for those items, and all other modes of adjusting particular
average, except that founded on the principle of the gross proceeds,
are erroneous. (ƒ) In settling losses under the memorandum in
the policy, which declares articles free of average, under say five
per cent, if a partial loss to an article be found, on survey and
sale, to have been five per cent, the insurer pays the dam-
ages and the expenses. If under five per cent, he pays *338
nothing, and the insured bears the expenses. The expenses
are like costs of suit, and fall upon the losing party. The expenses
are not taken to make up the five per cent. (a)
*
'(ƒ) Benecke on Indemnity, 426, 427. In the adjustment of loss on a policy on
profits, it is not necessary to show what the profits would have been if the loss had
not happened. It is sufficient to show interest in the cargo, and the loss thereof.
The loss of the cargo carries with it the loss of the profits, either in whole or in part,
as the case may be. If the cargo be totally lost, the loss on the policy on profits
is total. If partial on cargo, it is partial on profits, and to the same extent.
The salvage on what is saved of the cargo is credited to the insurer on profits, as well
as to the insurer on cargo. They stand on the same footing precisely. Henrickson
v. Margetson, 2 East, 549, note; Barclay v. Cousins, 2 East, 544; Patapsco Ins
Company v. Coulter, 3 Peters, 222. In some of the New York policies, this principle is
specially recognized by the introduction of the clause in policies on profits, that the
policy is subject to the same average and benefit of salvage as cargo.
(a) Benecke on Indemnity, 436. Great Indian P. R. Co. v. Saunders, 2 Best &
Sm. 266, 267, 268.] Mr. Benecke, in c. 9, has gone into particular calculations on
the subject of the adjustment of particular average, on every kind of expense or
damage short of a total loss, and applied his principles to almost all the variety of cases
that can arise; and to his lucid explanations I must refer the student for a more prac-
tical knowledge of the subject. The five per cent is to be computed upon the valua-
tion in the policy, after deducting the premium. Several or distinct losses happening
to the ship at different times, are not to be added to make up the five per cent.
Brooks v. Oriental Ins. Company, 7 Pick. 259. [Paddock v. Commercial Ins. Co.,
104 Mass. 521, 533.] Distinct successive losses to the ship cannot be added together
to make up the five per cent, though it may be otherwise as to the cargo. In the
one case, many trifling losses may fall within the common wear and tear of the ship
borne by the owner; but in the other, the entire damage cannot be ascertained until
the cargo is unladed; ib. See, also, Stevens on Average, 214; Benecke, 473. But
in the case of Donnell v. Columb. Ins. Company, 2 Sumner, 366, a different view was
taken of the subject under the memorandum in the policy, and after a thorough
examination of the English and the French law of insurance, it was held, that if
there be successive losses on the ship or cargo, each less than five per cent, but
amounting in the aggregate to more than five per cent, they were not within the
exception, and were to be borne by the insurer. The exception of all losses not
amounting to five per cent means all losses during the voyage, and the exception
applies to all losses, ejusdem generis, below five per cent, and not amounting in the
aggregate to five per cent. Mr. Justice Story drew the conclusion that there was no
distinction in the insurance law of Europe between the aggregate averages of the
whole voyage and an average loss at a particular period.
[ 453 ]
#339
[PART V.
OF PERSONAL PROPERTY.
If extraordinary expense and extra freight be incurred in carry-
ing on the cargo in another vessel, when the first one becomes dis-
abled by a peril of the sea, the French rule is, to charge the same
upon the insurer of the cargo. (b) This question is left undecided
in the English law, but in this country we have followed the
French rule. (c) With respect to leakage, the rule, in cases free
from special stipulation, is, that the insurer is not liable for waste
occasioned by ordinary leakage, and only for leakage beyond the
ordinary waste, and produced by some extraordinary accident.
The practice is, to ascertain, in each particular case, what amount
of leakage is to be attributed to ordinary causes, or the fault of
the insured, or bad stowage, and what to the perils of the sea ;
*
and, in pursuing this inquiry, the season of the year, the
* 339 nature of the articles, the description of the vessel, the
length of the voyage, and the stowage, are all to be con-
sidered. (a)
An adjustment of a loss cannot be set aside or opened except on
the ground of fraud, or mistake of facts not known. It is only
prima facie evidence of the claim, and the party must have a full
disclosure of the circumstances of the case before he will be con-
cluded by it. In the language of Lord Ellenborough, they must
all be blazoned to him as they really existed. (6) And in mak-
ing the adjustment, in the case of a partial loss, the rule is to apply
the old materials towards the payment of the new, by deducting
the value of them from the gross amount of the expenses for the
repairs, and to allow the deduction of one third new for old upon
the balance. (c) In England, if the injury be sustained, and the
(b) Emerigon, i. 429-433; Code de Commerce, n. 391, 393.
(c) Mumford v. Commercial Ins. Company, 5 Johns. 262; Searle v. Scovell, 4
Johns. Ch. 218; Dodge v. Marine Ins. Company, 17 Mass. 471. [Great Indian P. R.
Co. v. Saunders, 1 Best & Sm. 41, 51; ante, 296, n. 1, (c); post, 340, n. 1.]
(a) Phillips on Insurance, i. 246, 247; Millar on Insurance, 132; 2 Valin, 14, 80,
83; 1 Emerigon, 391.
(b) Dow v. Smith, 1 Caines, 32; Shepherd v. Chewter, 1 Camp. 274; Steel v.
Lacy, 3 Taunt. 286.
(c) Burnes v. Nat. Ins. Company, 1 Cowen, 265; Savage, C. J., in Dickey v. New
York Ins. Company, 4 id. 245; Brooks. Oriental Ins. Company, 7 Pick. 259; Eager
v. Atlas Ins. Company, 14 id. 141. See supra, 331. The rule applies equally to steam
vessels insured on our interior waters. Wallace v. Ohio Ins. Company, 4 Ohio, 234.
In Potter v. The Ocean Ins. Company, C. C. U. S. Mass., October, 1837, 3 Sumner, 27,
it was held, that in case of repairs to the ship, by the perils insured against, the deduc-
tion of one third new for old was applicable only to the labor and materials employed
in the repairs, and to the new articles purchased in lieu of those lost or destroyed.
[454]
LECT. XLVIII.]
* 340
OF PERSONAL PROPERTY.
repairs made, when the vessel is new, and on her first voyage, no
deduction of new for old is made; because, the vessel being new,
it is not supposed that she is put in better condition by the
repairs. (d) But in this country that distinction has not been
adopted, and the deduction of one third new for old is made,
whether the vessel be new or old. (e) ·
The insurer is liable for all the labor and expense attendant
upon an accident which forces the vessel into port to be re-
paired; (f) and in consequence of the general permission
*
in the policy for the insured to labor for the recovery of *340
the property, the insurer may be rendered liable for the
expenses incurred in the attempt to recover the lost property, in
addition to the payment of a total loss. (a) 1 It has been a ques-
(d) Fenwick v. Robinson, 1 Danson & Lloyd, 8; 3 Carr. & P. 323.
(e) Dunham v. Com. Ins. Company, 11 Johns. 315; Sewall v. U. S. Ins. Com-
pany, 11 Pick. 90. Temporary repairs in the course of the voyage are held to be
particular average; but other repairs abroad, from strict necessity, to enable the
vessel to return, and which become useless afterwards, are general average. Brooks
v. Oriental Ins. Company, 7 id. 259.
(ƒ) Shiff v. Miss. Ins. Company, 1 La. 304.
(a) 1 Caines, 284, 450; 7 Johns. 62, 424, 433; [4 Mason, 300;] 4 Taunt. 367.
Emerigon has taken notice of this stipulation in the English policies, by means of
which the insurer may become chargeable beyond the amount of his subscription;
and there is the same stipulation, by which they may be so charged, in the policies,
at Antwerp, Rouen, Nantes, and Bourdeaux; and there is the same clause in the
formula given by Loccenius. In the form used at Marseilles, there is no such clause;
1 The suing and laboring clause has been
referred to heretofore, 331, n. 1, (e); 296, n.
1, (c). By it the assured is authorized to
sue, labor, &c., at the cost of the insurers in
order to avert a loss which would have
fallen on the insurer, or to mitigate its
consequences. Arnould on M. Ins. 4th
ed. 233; Xenos v. Fox, L. R. 3 C. P. 630,
637. But if the expenses are not incurred
in averting an impending loss which would
otherwise have fallen upon the under-
writers, such as an actual or constructive
total loss of the goods in the case of a
policy on memorandum articles, they
cannot be recovered under this clause.
Great Indian Pen. R. Co. v. Saunders, 1
Best & S. 41; 2 id. 266; Booth v. Gair, 15
C. B. N. s. 291. But compare Indianapolis
Ins. Co. v. Mason, 11 Ind. 171, 178.
As to the effect of the clause in a policy
on freight, even where there is a warranty
against particular average, see Kidston v.
Empire M. Ins. Co., ante, 296, n. 1, (c). The
principle of this decision was followed in
a case where there does not seem to have
been such a warranty. The loss of freight
was averted by an extraordinary expend-
iture incurred by the ship owner for that
very purpose, in forwarding the goods to
their destination by land, under circum-
stances in which it would have been
practicable to reload the goods on board
the vessel on which they were originally
shipped at a less expense, and the assured
was allowed to recover that part of his
disbursements which would have been
necessary had he reloaded.
Lee v.
Southern Ins. Co., L. R. 5 C. P. 397.
[455]
341
[PART V.
OF PERSONAL PROPERTY.
tion much contested in the French tribunals, whether the insurer
can, in cases distinct from the above stipulation, be held charge-
able at the same time, and cumulatively, with the amount of an
average, and also with the amount of a subsequent total loss in
the same voyage. This is said to be contrary to all principle, and
the elements of the contract; and it was decided in the Court of
Cassation, in 1823, after great litigation, that the insurer was not
holden beyond the amount of his subscription, and for which he
received a premium, notwithstanding the prior partial and subse-
quent total loss. (b)
*
(3) of the Return of Premium. - The premium paid by the
insured is in consideration of the risk which the insurer
*341 assumes, and if the contract of insurance be void ab initio,
or the risk has not been commenced, the insured is entitled
to a return of premium. If the insurance be made without any
interest whatsoever in the thing insured, and this proceeds through
mistake, misinformation, or any other innocent cause, the pre-
mium is to be returned. So if the insurance be made with short
interest, or for more than the real interest, there is to be a ratable
return of premium. If the risk has not been run, whether it be
owing to the fault, pleasure, or will of the insured, or to any
other cause, the premium must be returned, for the consideration
for which it was given fails. (a)¹ If the vessel never sailed on
the voyage insured, or the policy became void by a failure of the
warranty, and without fraud, the policy never attached; but if
and without such clause, and as a general rule, the insurer is not chargeable beyond
his subscription. But with such a special clause, Valin and Emerigon both agree,
that the expense must be borne by the insurer, though it go beyond the effects
recovered. This, however, is denied by Boulay-Paty, who insists that the sum sub-
scribed limits all claim upon the insurer. 1 Emerigon, 484; 2 id. 202-213; Valin's
Comm. ii. 99; Boulay-Paty, iv. 312, 313. In some of our American policies, the
stipulation is, that the assured may labor and travel, for, in, and about the safeguard
and recovery of the property, to the charges whereof the insurers will contribute, according
to the rate and quantity of the sum insured.
(b) Kermel v. La Compagnie Royale d'Assurance, reported in the Journal de Cassa-
tion, 1823, and quoted at large in Boulay-Paty, iv. 519-532, [tit. 12, sec. 7;] and see,
also, ib. 272-276.
(a) Tyrie v. Fletcher, Cowp. 666; Loraine v. Thomlinson, Doug. 585; 8 T. R.
156, arg.; Holmes v. United Ins. Company, 2 Johns. Cas. 329; Taylor v. Sumner,
4 Mass. 56.
1 New York F. M. Ins. Co. v. Roberts,
4 Duer, 141. If a material representation
is false, so that the policy never attaches,
if at the same time there is no fraud, the
assured may recover the premium. An-
derson v. Thornton, 8 Exch. 425.
[ 456 ]
LECT. XLVIII.]
* 342
OF PERSONAL PROPERTY.
the risk has once commenced, though the voyage be immediately
thereafter abandoned, there is to be no return or apportionment
of premium. And if the premium is to be returned, it is the
usage in every country, where it is not otherwise expressly stip-
ulated in the policy, for the insurer to retain one half per cent
by way of indemnity for his trouble and concern in the trans-
action. (b)
*
* 342
The insurer retains the premium in all cases of actual fraud on
the part of the insured or his agent. (c) So, if the trade be in any
respect illegal, the premium cannot be reclaimed. (d) If the
voyage be divisible, there may be an apportionment of the pre-
mium; and if the risk as to the one part of the voyage
has not commenced, the premium may be proportionably
retained. But the premium cannot be divided and appor-
tioned, unless the risks were divisible and distinct in the policy.
If the voyage and the premium be entire, there can be no appor-
tionment. It is requisite that the voyage, by the usage of trade or
the agreement of the parties, be divisible into distinct risks; and,
in that case, if no risk has been run as to one part, there may be
an apportionment of premium. (a)
The French code provides for the apportionment of premium in
the case of an insurance on goods, when part of the voyage has
not been performed. (b) M. Le Baron Locré, in his commentary
upon this article, vindicates it by very ingenious reasoning, which
M. Boulay-Paty (c) thinks, however, does not remove the diffi-
culty; and he contends that such a provision is contrary to a
principle of the contract, that when the risk has once commenced,
the right to the entire premium is acquired.
4. Of the Writers on Insurance Law. I have now finished a
survey of the leading doctrines of marine insurance, which is by
far the most extensive and complex title in the commercial code.
(b) Emerigon, ii. 154; 2 Phillips on Insurance, 526; Code de Commerce, art.
349; Hendricks v. Com. Ins. Company, 8 Johns. 1.
(c) Tyler v. Horne, Park on Insurance, 285; Chapman v. Frazer, Marshall on
Insurance, 652; Hoyt v. Gilman, 8 Mass. 336.
(d) Morck v. Abel, 3 Bos. & P. 35; Vandyck v. Hewitt, 1 East, 96.
(a) Stevenson v. Snow, 3 Burr. 1237; Long v. Allan, Marshall on Insurance, 660;
[4 Doug. 276;] Donath v. Ins. Company of North America, 4 Dallas, 463; Ogden v.
Firemen Ins. Company, 12 Johns. 114; 2 Phillips on Insurance, 538.
(b) Code de Commerce, art. 356.
(c) Cours de Droit Commercial Maritime, iv. 98, 99.
[457]
* 343
[PART V.
OF PERSONAL PROPERTY.
*
There is no branch of the law that has been more thoroughly
investigated, and more successfully cultivated in modern times,
not only in England, but upon the European continent. Mari-
time law in general partakes more of the character of interna-
tional law than any other branch of jurisprudence; and I trust I
need not apologize for the free use which has been made, for the
purpose of argument or illustration, not of English author-
*343 ities only, but of the writings of other foreign lawyers,
and the decisions of foreign tribunals, relative to the various
heads of the law-merchant. I am justified, not only by the example
of the most eminent of the English lawyers and judges, but by
the consideration that the law-merchant is part of the European
law of nations, and grounded upon principles of universal equity.
It pervades everywhere the institutions of that vast combination
of Christian nations, which constitutes one community for com-
mercial purposes and social intercourse; and the interchange of
principles and spirit and literature, which that intercourse pro-
duces, is now working wonderful improvements in the moral and
political condition of the human race.
The general principles of insurance law rest on solid founda-
tions of justice, and are recommended by their public utility; and
yet it is a remarkable fact, that none of the nations of antiquity,
though some of them were very commercial, and one of them a
great maritime power, appear to have used, or even to have been
acquainted with, this invaluable contract. (a) It was equally a
stranger to the early maritime codes compiled on the revival of
arts, learning, and commerce, at the conclusion of the middle ages.
The Consolato del Mare, the laws of Oleron, and the laws of the
(a) Bynkershoek and Emerigon both agree, that the contract of insurance was
not to be found in the Roman law, though some traces of it have been supposed to
be perceived in the Roman history. Bynk. Quæst. J. Pub. lib. 1, c. 21. Emerigon,
des Ass. Pref. John Duer, Esq., has recently bestowed a learned examination and
able argument upon the question, whether marine insurance was known to the
ancients, and he gives strong presumptive reasons in favor of the use of that insur-
ance among the Romans. See his Preliminary Lecture to a Course of Lectures on
Marine Insurance, New York, 1844, and which now constitutes the first Lecture of
the Introductory Discourse to his great work on the Law and Practice of Marine
Insurance, vol. i. ed. New York, 1845. If he should finish the extensive work which he
is engaged in preparing for the press, (and in which I wish him every encourage-
ment,) he will, judging from his known erudition and talents, as well as from the
sample before us, give to the public a treatise of exhausting research, skilful criti-
cism, and consummate ability.
[458]
LECT. XLVIII.]
* 344
OF PERSONAL PROPERTY.
*
Hanseatic Association, were all silent upon the subject of the con-
tract of insurance. The first allusion to it is said to have been
made in the latter part of the fourteenth century, and where we
should not, at that early age, have first expected to find it; in the
laws of Wisbuy, compiled in the Teutonic language on the bleak
shores of an island in the middle of the Baltic Sea. (b) It
is so necessary a contract, that Valin concludes maritime *344
commerce cannot well be sustained without it, for no pru-
dent ship owner would be willing to risk his own fortune, and
that of others, on an unprotected adventure at sea. The busi-
ness of uncovered navigation or trade would be spiritless or
presumptuous. The contract of insurance protects, enlarges,
and stimulates maritime commerce; and under its patronage,
and with the stable security which it affords, commerce is con-
ducted with immense means and unparalleled enterprise, over
every sea, and to the shores of every country, civilized and bar-
barous. Insurers are societies of capitalists, who are called by
(b) The allusion to marine insurance, in art. 66 of the Laws of Wisbuy, is se
obscure or equivocal, that the most celebrated jurists have differed in opinion as to
the origin of the contract. Cleirac, in his commentary on that article of the Laws
of Wisbuy, applies it directly to insurances; and he had studied that compilation
thoroughly, for he translated it into French, from the old German, or Tudesque lan-
guage, in which the code had been preserved to his day. In the collection of Sea
Laws, published at London, under Queen Anne, the article, as translated, applies to
marine insurance. Emerigon, also, in the preface to his treatise, gives that construc-
tion to the article, and he and Cleirac are great authorities on the point. On the
other hand, Emerigon admits that Stypmannus, Ansaldus Gibalinus, and Casaregis
would not allow that the use of insurances was introduced into commerce until
towards the fifteenth century; and Valin intimates that the contract of insurance
came from the Italians, and passed from them to the Spaniards, Dutch, and other
commercial nations. Malynes, as early as 1622, traced the practice of insurance from
Claudius Cæsar to the inhabitants of Oleron, and then to Antwerp and London.
Cleirac's les Us et Coutumes de la Mer, 155; Malynes's Lex Mercatoria, pt. 1, 105;
Emerigon, Traité des Ass. Pref.; Valin's Comm. ii. 27. Bynkershoek said he had no
evidence that the contract of insurance was in use in Holland in the fifteenth century,
though he found it to have been in established use by the middle of the following cen-
tury. Quæst. J. Priv. lib. 4, c. 1. Mr. Duer, (on Insurance, &c., i. 28-32,) after a
critical examination, concludes that marine insurance first came into use in Italy at
the close of the 12th, or beginning of the 13th century. Don Antonio de Capmany,
in his History of the Commerce of Barcelona, referred to in M'Culloch's Dictionary
of Commerce, art. Insurance, gives an ordinance in Spanish relative to insurance,
issued by the magistrates of that city in 1436. This is done more effectually by
Duer, in his work on Insurance, i. 34, 35, and in the App. to vol. ii., for he gives an
English translation of the ordinance. Barcelona must, therefore, be regarded as the
birthplace of the earliest ordinance on the subject of marine insurance.
[ 459 ]
* 346
[PART V.
OF PERSONAL PROPERTY.
their business to study with profound sagacity, and with exact-
ness of calculation, the geography and navigation of the globe,
the laws of the elements, the ordinances of trade, the principles
of international law, and the customs, products, character,
*345 and institutions of every*country where tide waters roll,
or to which winds can waft the flag of their nation. (a)
Many of the states and great commercial cities of Europe, in
the early periods of modern history, made and published ordi-
nances relating to insurance, and most of them have been col-
lected in Magens's Essay on Insurance, published in 1755. The
most important of these compilations were the ordinances of
Barcelona, Bilboa, Florence, Genoa, Antwerp, Rotterdam, Ams-
terdam, Copenhagen, Stockholm, and Königsberg, as well as royal
ordinances of the kings of France, Spain, and Portugal. They
are authentic memorials of the prosperity of commerce, and evi-
dence of the early usages in respect to a contract governed by
general principles of policy and justice. We may also refer to
the decisions of the Rota of Genoa (of which so much use is made
by Roccus), to show how early and extensively insurance ques-
tions became a source of litigation and topic of discussion
*346 in the courts of * justice. (a) But without dwelling upon
these historical views, my object at the close of this lecture
is, merely to direct the attention of the student to the character
(a) The French lawyers have described the contract of insurance in strong and
eloquent language. C'est une espèce de jeu, said Emerigon, truly and gravely; qui
exige beaucoup de prudence de la part de ceux qui s'y adonnent. Il faut faire l'analyse
des hazards, et posséder la science du calcul des probabilités; prévoir les écueils de
la mer, et ceux de la mauvaise foi; ne pas perdre de vue les cas insolites et extraor-
dinaires; combiner le tout, le comparer avec le taux de primes, et juger quel sera le
résultat de l'ensemble. But the French counsellors of state, Messrs. Corvetto,
Bégouen, and Maret, in their report to the legislative body, on the 8th September,
1807, declared that Ce beau contrat est le noble produit du génie de l'homme, et le
premier garant du commerce maritime. Il a consulté les saisons; il a porté ses regards
sur la mer; il a interrogé ce terrible élément; il en a jugé l'inconstance; il en a pres-
senti les orages; il a épié la politique; il a reconnu les portes et les côtes des deux
mondes; il a tout soumis à des calculs savans, à des théories approximatives, et il a
dit au commerçant habile; au navigateur intrepide: certes il y a des désastres sur
lesquels l'humanité ne peut que gémir; mais quant à votre fortune allez, franchissez
les mers, déployez votre activité et votre industrie: Je me charge de vos risques.
(a) Those decisions, under the title of Decisiones Rotæ Genuæ de Mercatura, are
contained in the voluminous compilation, which includes the works of Santerna and
of Straccha, and was published at Amsterdam in 1669. They amount to two hun-
dred and fifteen decisions, and many of them relate to insurance questions, and they
settled principles which govern at this day.
[460]
LECT. XLVIII.]
347
OF PERSONAL PROPERTY.
and value of the most distinguished works which have elevated
and adorned this branch of the law.
The earliest work extant on insurance is the celebrated French
treatise entitled Le Guidon. It was digested and prepared some
centuries ago, by a person whose name is unknown, for the use
of the merchants of Rouen. It was published by Cleirac, in 1671,
in his collection entitled Les Us et Coutumes de la Mer; but it
was a production of a much earlier date, and it contains decisive
evidence that the law of insurance had become, in the sixteenth
century, a regular science. Emerigon viewed it as containing the
true principles of nautical jurisprudence, and valuable for its wis-
dom and for the great number of principles and decisions which
it contained; and when Cleirac gave to the world his revised and
corrected edition of the Le Guidon, he regretted that he was not
able to rescue from oblivion the name of an author who had con-
ferred signal honor on his country, by the merit and solidity of
his production, though it wanted the taste and elegance of later
ages. (b)
The treatise of Roccus on insurance has been universally re
garded as a text book of great authority. He was an eminent
civilian and judge at Naples, and published his work in 1655;
and Mr. Ingersoll, the American translator, perceives an analogy
between the treatises of Roccus and Littleton's Tenures. That
analogy does truly exist in the sound logic, admirable pre-
cision, and vast power of compression, which are dis- * 347
played throughout his works. He made free use of the
treatises of Santerna and Straccha on insurance law, and gave
authority to those very creditable productions of the latter part
of the sixteenth century. (a) Bynkershoek has devoted the
(b) Cleirac's Pref. to Le Guidon.
*
(a) The treatise of Santerna, a Portuguese lawyer, De Assecurationibus et Sponsi-
onibus Mercatorum, and the later work of Straccha, of Ancona, De Assecurationibus,
equally abound in references throughout the body of their works to the civil law and
the early civilians. The latter is essentially the groundwork of the treatises of Roc-
cus, and yet both Straccha and Santerna are rudely termed, by Bynkershoek, semi-
barbarous writers, though they were familiar not only with the Roman law, but with
the Roman classics. Emerigon and Valin make free use of the works of these
authors, as they do also of the commercial discourses of Casaregis, who is without
contradiction, as Valin says, (Com. sur Ord. Pref.) the best of all the writers whom
he had enumerated, and he had already mentioned Cleirac, Straccha, Stypmannus,
Loccenius, Kuricke, Peckius, Vinnius, and Weysten. Casaregis has also received the
highest and warmest eulogy from the learned and eloquent author of the article n. 15,
in The North American Review, vii. 323.
[ 461 ]
348
[PART V.
OF PERSONAL PROPERTY.
fourth book of his Quæstiones Juris Privati to the contract of
insurance. It constitutes a large treatise, which discusses, with
his usual freedom of thought and expression, almost every impor-
tant branch of the law of that contract. His work, which occa-
sionally refers to the Roman law, is almost entirely grounded on
Dutch edicts, and judicial decisions in the courts of Holland. It
is essentially a collection of reports of cases adjudged in the
Dutch courts, and I do not perceive that he ever refers to the
decisions of the Rota of Genoa, or to the writings of Santerna,
Straccha, or Roccus, which were before his eyes. Such reserve,
or proud disdain of foreign illustration and aid, detracts greatly
from the scientific character and liberal temper of the work. But
we proceed to the mention of authors, by whose learned labors
the utility of all preceding treatises on insurance was superseded,
and their fame and lustre eclipsed.
*348
4
* Valin's copious commentary upon that part of the
ordinance of Louis XIV. which relates to insurance, is
deserving of great attention, and it has uniformly and everywhere
received the tribute of the highest respect, for the good sense,
sound learning, and weight of character which are attached to his
luminous reflections. Pothier's essay on insurance is a concise,
perspicuous, accurate, and admirable elementary digest of the
principles of insurance, and it contains the fundamental doctrines
and universal law of the contract. But the treatise of Emerigon
very far surpasses all preceding works, in the extent, value, and
practical application of his principles. It is the most didactic,
learned, and finished production extant on the subject. He pro-
fessedly carries his researches into the antiquities of the maritime
law, and illustrated the ordinances by what he terms the jurispru-
dence of the tribunals; and he discussed all incidental questions,
so as to bring within the compass of his work a great portion of
international and commercial law connected with the doctrines
of insurance. In the language of Lord Tenterden, no subject in
Emerigon is discussed without being exhausted, and the eulogy
is as just as it is splendid. Emerigon was a practical man, who
united exact knowledge of the details of business with manly
sense and consummate erudition. He was a practising lawyer at
Marseilles, for perhaps forty years, and the purity of his private
life corresponded with the excellence of his public character.
Valin acknowledges that he owed some of the best parts of his
[462]
LECT. XLVIII.]
* 349
OF PERSONAL PROPERTY.
work to the genius and industry of that eminent civilian, who
gratuitously pressed upon him, with a cordiality and disinterested-
ness almost without example, a rich collection of materials, con-
sisting of decisions and authorities, suitable to illustrate and adorn
the jurisprudence of the commentary. It would be difficult to
peruse the testimony which Valin has so frankly borne to the
moral, as well as literary and professional accomplishments of
Emerigon, without being sensibly touched with the generosity of
the friendship of those illustrious men.
*Since the renovation of the marine ordinance of Louis *349
XIV., in the shape of the commercial code of France of
1807, there has arisen a host of commentators, such as the Baron
Locré, Pardessus, Laporte, Delvincourt, Toullier, and Boulay-
Paty, of various and unequal merit. The treatise of M. Pardes-
sus, on commercial law, in five volumes, contains a neat and
excellent digest of the law of marine insurance; and though he
has not enriched his work with citations from the text writers, or
with references to judicial decisions, it contains intrinsic evidence
of extensive and accurate research, as well as of clear and solid
judgment. Toullier, though already quite voluminous, has not
as yet touched on the commercial code. On the law of insur-
ance, I would select and recommend Boulay-Paty as the latest
and best writer. He has explained and illustrated every part of
the code, but devoted nearly half of his voluminous work to the
single head of insurance, and he has treated the subject very
much in the style of Emerigon. He has trodden in his footsteps,
adopted his copious learning, applied his principles with just dis-
crimination, and gives us a complete treatise on every branch of
insurance, according to the order and under the correction of the
new code.
The first notice of the contract of insurance that appears in the
English reports, is a case cited in Coke's Reports, (a) and decided
in the 31st of Elizabeth; and the commercial spirit of that age
gave birth to the statute of 43d Elizabeth, passed to give facility
to the contract, and which created the Court of Policies of Assur-
ance, and shows by its preamble that the business of marine
insurance had been in immemorial use, and actively followed.
But the law of insurance received very little study and cultiva-
tion for ages afterwards; and Mr. Park informs us that there
(a) 6 Coke, 47, b.
[463]
* 350
[PART V.
OF PERSONAL PROPERTY.
were not forty cases upon matters of insurance prior to the year
1756, and even those cases were generally loose nisi prius notes,
containing very little information or claim to authority. From
that time forward the decisions of the English courts on insurance
assumed new spirit and vigor, and they deserve to be studied with
the utmost application. When Sir William Blackstone published
the second volume of his Commentaries, Lord Mansfield had pre-
sided in the Court of King's Bench for nearly ten years; and in
that short space of time the learning relating to marine insurance
had been so rapidly and so extensively cultivated that he
*350 concluded, that if the principles * settled were well and
judiciously collected, they would form a very complete title
in the code of commercial jurisprudence. Mr. Park (now a judge
of the Court of King's Bench) took the suggestion, and published
his System of the Law of Marine Insurances in 1786, and he had
the advantage of the labors of the whole period of Lord Mans-
field's judicial life; and the decisions are collected and digested
with great copiousness, erudition, and accuracy. He extracted
all that was valuable from the compilations of Malynes, Molloy,
Magens, Beawes, and Weskett; and he had the good sense and
liberality to enrich his work with the materials of those vast and
venerable repositories of commercial learning, the Le Guidon, the
foreign ordinances, and the writings of Roccus, Bynkershoek,
Valin, Pothier, and Emerigon.
About the time that Park published his treatise, the Elements
of the Law relating to Insurances, by Mr. Millar, a Scotch advo-
cate, appeared at Edinburgh. He evidently compiled his work
without any knowledge of the contemporary publication of Mr.
Park; and though the English cases are not so extensively cited
and examined by him, he supplied the deficiency by a digest of
cases in Scotland; and he appears to have been equally familiar
with the continental civilians, and to have discussed the princi-
ples of insurance with uncommon judgment and freedom of
inquiry. Since the publication of Millar's treatise, no work
appeared in Scotland on the subject of insurance, until Mr. Bell
took a concise view of that as well as of other maritime contracts,
in his very valuable Commentaries; and he states that since the
period of 1787, the mercantile law of Scotland has been making
rapid strides towards maturity.
The treatise of Park had passed through five editions, when
[ 464]
LECT. XLVIII.] OF PERSONAL PROPERTY.
* 352
Mr. Marshall published, in 1802, his Treatise on the Law of
Insurance. It contains a free and liberal discussion of principles,
and it is more didactic and elementary in its instruction
than the work of his predecessor, but it abounds * with *351
citations of the same cases at Westminster, and a refer-
ence to the same learned authors in France and Italy. Mr. Park
is entitled to the superior and lasting merit of being the artist
who first reduced the English law of insurance to the beauty and
order of a regular science, and attracted to it the rays of foreign
genius and learning. The American edition of Marshall, by Mr.
Condy, is greatly to be preferred to any other edition; and even
that improved work is now in a considerable degree superseded
by Mr. Phillips's Treatise on the Law of Insurance, the first vol-
ume of which was published at Boston in 1823, and the second
in 1834, and a new and improved edition of the entire work, in
two volumes, in 1840. This author has very diligently collected
and ingrafted into his work not only the English cases, but the
substance of all the American cases, and decisions on insurance,
which had been accumulating for a great number of years. In
that view it is an original work of much labor, discrimination, and
judgment, and of indispensable utility to the profession in this
country. (a)
The treatise of Mr. Benecke, on the Principles of Indemnity
in Marine Insurance, may be considered as an original work of
superior merit, written by a business man, on the most useful and
practical part of the law of insurance. It contains great research,
clear analysis, strong reasoning, and an accurate application of
principles, and was intended for the use of the merchant and ship
owner, as well as of the practising lawyer. The work was the
result of much study, research, and experience; and the public
expectation of its value, from the well known character
and ability of * the author, had been highly raised, a long *352
time before the publication. (a)
(a) In 1828, a new Treatise on the Law relating to Insurance, by David Hughes,
Esq., of the Inner Temple, was published at London. It goes over the same ground
already fully and sufficiently occupied by his two eminent predecessors, Park and
Marshall; and with very scanty reference to any foreign authorities, it cites all the
modern English cases. It is a plain, methodical, and correct treatise, and must be
valuable to an English lawyer, so far as it has incorporated into the work the substance of
the recent decisions not to be found in the former works. Beyond that information, the
treatise is entirely superfluous.
(a) The treatise of Mr. Benecke was published in 1824, and yet, in Jacobsen's
[ 465]
VOL. III.
30
* 352
[PART V.
OF PERSONAL PROPERTY.
work on the Laws of the Sea, published at Altona, in 1814, he speaks of this treatise,
by its title, as being in preparation by a master-hand. This treatise of Mr. Benecke
is said to be only an inconsiderable portion of his great original work on Insurances
and Maritime Loans, published at Hamburg, between 1805 and 1810, and translated
into Italian, and published at Trieste in 1828. It is the most comprehensive and per
fect work on insurance and maritime loans, says Mr. Duer, that has yet appeared.
Lecture on Representations, 135.
[ 466]
LECT. XLIX.]
* 354
OF PERSONAL PROPERTY.
LECTURE XLIX.
OF MARITIME LOANS.
THE contracts of bottomry and respondentia are maritime loans
of a very high and privileged nature, and they are always upheld
by the admiralty with a strong hand, when entered into bona fide,
and without any suspicion of fraud. The principle on which they
are founded and supported is of great antiquity, and penetrates
so deeply into it, that Emerigon says its origin cannot be traced.
It was borrowed by the Romans from the laws of the ancient
Rhodians, and it is deeply rooted in the general maritime law of
Europe, from which it has been transplanted into the law of this
country. The object of hypothecation bonds is to procure the
necessary supplies for ships which happen to be in distress in for-
eign ports, where the master and owners are without credit, and
in cases in which, if assistance could not be procured by means
of such instruments, the vessels and their cargoes must be left to
perish. The authority of the master to hypothecate the ship and
freight, and even the cargo, in a case of necessity, is indisputa-
ble. (a) The vital principle of a bottomry bond is, that it be
taken in a case of unprovided necessity, where the owner has no
resources or credit for obtaining necessary supplies. (b) If the
lender knew that the owner had an empowered consignee or agent
in the port, willing to supply his wants, the taking the bond is a
fraud; but if fairly taken under an ignorance of the fact,
the * courts of admiralty are disposed to uphold such bonds, *354
as necessary for the support of commerce in its extremities
(a) The Gratitudine, 3 C. Rob. 240, 267; The Hero, 2 Dods. 139; Case of the
Duke of Bedford, 2 Hagg. Adm. 294. Vide supra, 173. Sea stores, particularly for
the subsistence of passengers, are objects of a bottomry bond. 2 Hagg. Adm. 301.
(b) Vide supra, 171. The degree of necessity that will justify the master in taking
up money on bottomry for repairs, and that will justify the creditor in lending it, is
examined with great learning and judgment in the case of the Ship Fortitude, Law
Reporter, i. [124,] C. C. U. S. Mass., August, 1838, 3 Sumner, 228.
[467]
* 354
[PART V.
OF PERSONAL PROPERTY.
of distress. (a)¹ And if the lender of money on a bottomry or
respondentia bond be willing to stake the money upon the safe
arrival of the ship or cargo, and to take upon himself, like an
insurer, the risk of sea perils, it is lawful, reasonable, and just,
that he should be authorized to demand and receive an extraor-
dinary interest, to be agreed on, and which the lender shall deem
commensurate to the hazard he runs. (b)
A bottomry bond is a loan of money upon the ship, or ship and
accruing freight, at an extraordinary interest, upon maritime
risks, to be borne by the lender, for a specific voyage, or for a
definite period. It is in the nature of a mortgage, by which the
ship owner, or the master on his behalf, pledges the ship as a
security for the money borrowed, and it covers the freight of the
voyage, or during the limited time. A respondentia bond is a loan
upon the pledge of the cargo, though an hypothecation of both
ship and cargo may be made in one instrument; and generally, it
is only a personal obligation on the borrower, and is not a specific
lien on the goods, unless there be an express stipulation to that
effect in the bond; and it amounts, at most, to an equitable
lien on the salvage in case of loss. (c) The condition of the
(a) The Nelson, 1 Hagg. Adm. 169; Lord Stowell, in the case of the Gratitudine,
8 C. Rob. 271, 272.
(b) For the historical learning on the subject of maritime loans, see Dig. 22. 2. De
nautico fœnore. Code 4, 33; ib.; Bynk. Q. J. Priv. lib. 3, c. 16, pp. 506, 509. Emeri-
gon, h. t., c. 1, sec. 1, has collected all that the Roman law has said on the subject.
The speeches of Demosthenes against Zenothemis, Apaturius, Phormio, Lacritus, and
Dionysodorus, relate to the fœnus nauticum of the Roman law, or the bottomry con-
tract of the modern commercial nations. See, in The American Jurist, n. 6, p. 248,
an account of maritime loans in ancient Athens, taken from the treatise on the Public
Economy of Athens, by the learned Augustus Boekh, Greek Lecturer and Professor at
the University of Berlin. The goods were generally, and sometimes the vessel was
pledged for the security of the loan, with maritime interest. See, also, Lord Stowell,
in the case of the Gratitudine, 3 C. Rob. 267; The Alexander, 1 Dods. 278; The
Augusta, ib. 283; The Hero, 2 id. 139.
(c) 2 Bl. Comm. 459; Busk v. Fearon, 4 East, 319. According to Emerigon, ii.
476, 561, the respondentia lender has a lien on the cargo of the borrower on board;
and if the loan be for the outward and homeward voyage, the lieu affects the return
1 The circumstances which will au-
thorize the master to give a bottomry
bond, and the law by which the obligation
will be governed, have been stated and
explained ante, 172, n. 1; 164, n. 1. It
will be seen in the former note that in
some cases such a bond may be given for
a preëxisting debt It has been held that
a consul had authority, by reason of his
official position, under circumstances of
necessity, when the master had been
murdered, to give a bottomry bond.
Cynthia, 16 Jur. 748; 20 Eng. L. & Eq.
623.
[468]
LECT. XLIX.]
• 356
OF PERSONAL PROPERTY.
loan is *the safe arrival of the subject hypothecated, and *355
the entire principal as well as interest is at the risk of the
lender during the voyage. The bottomry holder undertakes the
risk of the voyage as to the enumerated perils, but not as to
those which arise from the fault or misconduct of the master or
owner. Quia suscipit in se periculum navigationis, suscepit peri-
culum fortunæ non culpæ. The money is loaned to the borrower,
upon condition that if the subject pledged be lost by a peril of
the sea, the lender shall not be repaid, except to the extent of
what remains; and if the subject arrives safe, or if it shall not
have been injured, except by its own defect, or the fault of the
master or mariners, the borrower must return the sum borrowed,
together with the maritime interest agreed on, and for the repay-
ment the person of the borrower is bound, as well as the prop-
erty pledged. This is the definition of the contract given by
Pothier; (a) and it was taken from the Roman laws, and has been
adopted by Emerigon, and he says the definition is given in nearly
the same terms by all the maritime jurists. (b)
Money may also be lawfully loaned at any rate of interest, upou
the mere hazard of a specific voyage, to be mentioned in the con-
tract, without any security either upon the ship or cargo. But
this last species of maritime loan depending upon the event of the
voyage, has a tendency to introduce wagering and usurious con-
tracts, and it has been restrained in England, by the statute of 19
Geo. II, c. 37, as to East India voyages. If the borrower has
no effects on board, or having some, he borrows much beyond
their value, it will afford a strong ground to suspect fraud, and
that the voyage will have an unfortunate end. (e) Such loans.
were entirely suppressed in France, by the marine ordinance of
1681. They were considered to be wagers, in the form of bot-
tomry contracts; and it was declared that, in case of loss, the
borrower upon goods should not be discharged without
proving that he had goods on board at the time of the *356
*
cargo, being the proceeds of the outward cargo. By the foreign laws the lender on
respondentia has the pledge of the goods as a security. Pothier, Bynkershoek, and
Emerigon. Abbott on Shipping, 5th Am. ed. Boston, 1846, p. 197. But this is not
the English law. Respondentia loans have been disused in England since the statute
of 19 Geo. II., c. 37.
(a) Contrats à la grosse, n. 1.
(b) Emerigon, Traité des Contrats à la grosse, c. 1, sec. 2; 2 Hagg. Adm. 53, 57;
Story, J., in the case of the Brig Draco, 2 Sumner, 186, s. p.
(c) Casaregis, Disc. 62, n. 7; Guidon, c. 19, sec. 10.
[469]
* 357
[PART V.
OF PERSONAL PROPERTY.
loss, on his own account, to the amount of the sum lent. (a)
The same prohibition was continued in the commercial code, and
the loan on bottomry, or at respondentia, is valid to the extent
only of the value of the subject matter on which the loan is
effected. (b) Sergeant Marshall says, (c) that there is no com-
mon law decision that sanctions such a loan, and he considers it
to be a gambling contract. The weight of authority is, however,
in favor of the validity of these maritime loans, where nothing
is hypothecated. (d) The lender runs the risk of the voyage,
and receives extraordinary interest by way of compensation.
The contract is not usurious, for the principal loaned is put at
risk. (e)
The general rule is, that the power of the master to take up
money upon bottomry or respondentia exists only after the voy-
age has commenced, and is to be exercised in some foreign port
where the owner does not reside, for in such cases only is the
hypothecation presumed to be necessary. (f) But it is not indis-
pensable to the validity of an hypothecation bond, that the ship
or cargo should be in a foreign port. The law does not look to
the mere locality of the transaction, but to the difficulty of com-
inunication between the master and his owners. If forced into a
port of the same country in which the owner resides, the master
may hypothecate the ship and cargo, in a case of extreme neces-
sity, and when he had no opportunity or means, or it was
extremely difficult to communicate with the owners.
* 357 Occasions may arise in which the different *ports of the
same country may be as much separated and cut off from
all communication with each other, as if they were situated in
distant parts of the globe. (a)
(a) Ord. de la Mar. tit. Des Contrats à grosse Aventure, art. 14; ib. art. 3.
(b) Code de Commerce, art. 317.
(c) Condy's Marshall, ii. 745.
(d) 2 Bl. Comm. 459; Molloy, b. 2, c. 11, sec. 13.
(e) Soome v. Gleen, 1 Sid. 27. The New York Revised Statutes, i. 662, declare
void all wager contracts, except contracts on bottomry or respondentia. See supra,
278. It is essential that the principal and interest should both be put at risk, if the
interest reserved be more than legal interest, in order to constitute a bottomry con-
tract. Jennings v. Insurance Company of Pennsylvania, 4 Binney, 244.
(f) Condy's Marshall, ii. 741, b. c.; Reade v. Commercial Insurance Company, 3
Johns. 360; 1 Emerigon, ii. 424, 436; Code de Commerce, art. 321; Lister v. Baxter,
Strange, 695; Abbott on Shipping, 5th Am. ed. 193.
(a) La Ysabel, 1 Dods. 273. See, also, The Rhadamanthe, 1 Dods. 201; Greeley
v. Waterhouse, 19 Me. 1. [Ante, 172, n. 1; 164, n. 1.]
[470]
LECT. XLIX.]
* 358
OF PERSONAL PROPERTY.
There is great analogy between the contracts of bottomry and
insurance. They are frequently governed by the same principles,
though each of them has a character peculiar to itself. They
contribute in different proportions to the facility and security of
maritime commerce; but the immense capitals now engaged in
every
branch of commerce, and the extension of marine insurance,
have very essentially abridged the practice of such loans. The mas-
ter cannot hypothecate for a preëxisting debt, and the necessity
of the loan must be shown to have existed at the time it was
made (6) and that the master had no other means of raising the
money at marine interest; and when that fact is established, the
misapplication of it by the master, without the knowledge and
assent of the lender, will not affect its validity. (c) The marine
interest depends entirely upon the risk, and, therefore, if the
proposed voyage be abandoned before the risk has attached, the
contract is turned into a simple and absolute loan at ordinary
legal interest. So, if the borrower had not goods on board the
ship to the value of the sum borrowed, the contract, in case of
loss, is reduced in proportion to the diminished value, and the
borrower is bound at all events to return the surplus of the sum
borrowed, with the ordinary interest. The maritime interest is
in a ratio to the maritime risk or value of the goods shipped. (d)
After the voyage has commenced, and the loan has been for a
moment at hazard, though the vessel be shortly forced back, by
the perils of the sea, into the port of departure, and the
voyage broken up, the lender is entitled to * his principal, 358
with the marine interest, for the whole had been put at
hazard. (a) The same principle of necessity, which upholds a
bottomry bond, entitles a bond of a later date, fairly given at a
*
(b) The Brig Hunter, Ware, 249. Dr. Lushington, in the case of the Ship Vibilia,
in the English Admiralty, in December, 1838, held, that where the general character
of the transaction was clearly that of bottomry, the whole was to be presumed to be
of the same character, unless expressly disproved; and that it was competent for a for-
eign merchant, without any express agreement at all for a bottomry bond, to make
advances on the security of the ship as a lien given by the law of his own country,
and that it was not necessary to have a bottomry bond, or any agreement for one, till
the ship was about to sail. The Law Reporter for September, 1839, [p. 149; 1 Wm.
Rob. 1.]
(c) The Jane, 1 Dods. 461; Emerigon, ii. 434; Hurry v. The Ship John, 1 Wash.
293. Vide supra, 163 and 171, n. (d).
(d) Emerigon, Traité des Contrats à la grosse, c. 6, sec. 1; Franklin Ins. Com-
pany v. Lord, 4 Mason, 248.
(a) Boulay-Paty, Cours de Droit Com. iii. 74–76, 167–169.
[471]
* 359
[PART V.
OF PERSONAL PROPERTY.
foreign port, under a pressure of necessity, to priority of payment
over one of a former date; notwithstanding this is contrary to the
usual rule in other cases of security. (b) The equity of it con-
sists in this, that the last loan furnished the means of preserving
the ship, and without it the former lenders would entirely have
lost their security, and therefore it supersedes a prior mortgage
as well as any other prior lien. (c) The bottomry bond is also to
be paid before any prior insurance, (d) and it supersedes a pre-
vious mortgage of the ship. (e) The bottomry bond cannot be
made to cover advances made upon the personal security of the
borrower, and not upon the exclusive security of the ship; but
taking bills of exchange at the same time, by way of collateral
security, does not exclude the bottomry bond, nor diminish its
solidity. (ƒ) ¹
1
The perils which the lender on bottomry runs, are usually speci-
fied in the bond; and, according to the forms in commca use,
they are essentially the same as those against which the under-
writer in a policy of insurance undertakes to indemnify. By the
French law, the lender can insure the money lent, for he runs the
risk of it. He can insure the principal, though not his maritime
interest. (g) The respondentia bonds in Philadelphia are said to
be peculiar. The lender is entitled to the benefits of sal-
359 vage, and is liable for general and particular average.
They extend to perils by fire, enemies, men of war, or any
other casualties. (a) There is not, in respect to the contract,
(b) The Rhadamanthe, 1 Dods. 204; The Betsey, ib. 289; The Jerusalem, 2
Gallison, 350; Code de Commerce, art. 323.
(c) The Sloop Mary, 1 Paine, 671; s. P. supra, 175.
(d) Boulay-Paty, iii. 228, 232.
(e) The Duke of Bedford, 2 Hagg. Adm. 294.
(ƒ) The Augusta, 1 Dods. 283; The Jane, ib. 461; The Hunter, Ware, 249.
(g) Guidon, c. 18, sec. 2, note, by Cleirac; Roccus, de Navibus, n. 51; Valin, il
12; Appleton v. Crowninshield, 3 Mass. 443; Code de Commerce, art. 347.
(a) Insurance Company of Pennsylvania v. Duval, 8 Serg. & R. 138. By the
Code de Commerce, art. 330, the lender, on bottomry and respondentia, is also
chargeable for general and for particular average.
1 Atlantic, Newb. 514; Greely v. Smith,
3 Woodb. & M. 236. It seems to be the
English doctrine that the master may
pledge the personal credit of the owner,
and also give a bottomry bond as collateral
security, provided the two things are
done by separate and distinct instruments.
Stainbank v. Shepard, 13 C. B. 418, 443;
Willis v. Palmer, 7 C. B. N. s. 340, 360;
Bristow v. Whitmore, 4 De G. & J. 325
334.
[ 472 ]
LECT. XLIX.]
* 360
OF PERSONAL PROPERTY.
any constructive total loss. Nothing but an utter annihilation
of the subject hypothecated will discharge the borrower on bot-
tomry. (b) The property saved, whatever it may be in amount,
continues subject to the hypothecation. The lender can look
only to what is saved; and if that be not equal to the value of
the loan, the lender must bear the loss of the residue, and he can-
not recover the deficiency of the borrower. By the general marine
law, the lender on bottomry is entitled to be paid out of the
effects saved, so far as those effects go, if the voyage be disas-
trous. (c)
The position laid down by Lord Mansfield, and afterwards by
Lord Kenyon, (d) that the lender on bottomry or respondentia
was not liable to contribute, in case of a general average, has
been much and justly questioned in the elementary works. (e) It
is contrary to the maritime law of France, and of other parts
of Europe, and in Louisiana we have a decision * against * 360
it. (a) The new French law, contrary to the ordinance of
1681, charges the lender with simple average, on partial losses,
unless there be a positive stipulation to the contrary; but such a
stipulation, to exempt him from gross or general average, would
be void, and contrary to natural equity. (b) The reasoning of
Emerigon is conclusive in favor of the right of making the lender
chargeable with his equitable proportion of an average contribu-
tion. If he owes the preservation of his money lent to the sacri-
fice made by others for the preservation of the ship and cargo,
why should he not contribute towards a jettison, ransom, or com-
(b) Thomson v. Royal Exchange Assurance Company, 1 Maule & S. 30. [The
Great Pacific, L. R. 2 P. C. 516; L. R. 2 Ad. & Ec. 381; ante, 331, n. 1; Broomfield
v. Southern Ins. Co., L. R. 5 Ex. 192.]
(c) Parker, J., and Sewall, J., in Appleton v. Crowninshield, 3 Mass. 443; Wil-
mer v. The Smilax, Peters Adm. 295, note; Valin's Comm. ii. 12; Code de Com-
merce, art. 327; Magens on Insurance, ii. 52, 56, 196-198, 430; Emerigon, ii.
544, 547. [Great Pacific, sup. n. (b).]
(d) Joyce v. Williamson, [3 Doug. 164], and Walpole v. Ewer, Park on Insurance,
6th ed. 563, 565. In the former case, Lord Mansfield declared it to be a clear point,
that by the law of England there was neither average nor salvage upon a bottomry
bond. This must be understood with the exception in the statute of 19 Geo. II. c.
37, which, on East India risks, allows the benefit of salvage to the lender on bottomry
or at respondentia.
(e) See Condy's Marshall, ii. 760, 761; 1 Phillips on Insurance, 735–737, 2d ed.
(a) Chandler v. Garnier, 18 Martin, 599.
(b) Ord. de la Mar. h. t., art. 16; Code, art. 330; Emerigon, Traité des Contrats à
la grosse, c. 7, sec. 1.
[ 473 ]
* 361
[PART V.
OF PERSONAL PROPERTY.
position, made for the common safety? If no such sacrifice had
been made, he would have lost his entire loan, by the rapacity of
pirates, or the violence of the storm.
If the ship or cargo be lost, not by the perils of the sea, but by
the default of the borrower or master, the hypothecation bond
is forfeited, and must be paid. If the ship be lost on the voyage,
and the cargo forwarded by another ship, in that case the bor-
rowers must pay the debt, for such is the spirit of the contract. (e)
The lender, who is, in effect, an insurer, does not, as in ordinary
cases of insurance, assume the risk of barratry or loss by the
fraud or misconduct of the borrower or his agents. (d) And the
doctrine of seaworthiness, deviation, and the necessity of dili-
gence and correct conduct on the part of the borrower, are equally
applicable to this contract as to that of insurance. The lender
is not to bear losses proceeding from the want of seaworthiness,
or from unjustifiable deviation, or from the fault of the borrower,
or the inherent infirmity of the cargo. Nor does he run the
risk of the goods shipped on board another ship without neces-
sity. (e)
* 361
* These maritime loans may be safely effected in a fair
and proper case, as we have already seen, at the port of
destination, as well as at any other foreign port. (a) So, the
consignee of the cargo, and even the agent of the owner or
charterer of the ship, under special circumstances, may take a
bottomry bond, by way of security for advances made by
him. (b)¹ The owner himself may also execute a bottomry
1
(c) Ins. Company of Penn. v. Duval, 8 Serg. & R. 138.
(d) Roccus, de Navibus, n. 51; Western v. Wildy, Skinner, 152; Ord. de la Mar.
tit. Contrats à la grosse, art. 12; Emerigon, ii. 509-512; Code de Commerce, art.
326.
(e) Condy's Marshall, ii. 753–758; Boulay-Paty, iii. 158-164, 171-176; ib. 192.
So, if the vessel be sold or transferred after the risk has commenced, or the voy-
age be in any manner broken up by the borrower, the maritime risk terminates,
and the bond becomes presently payable, in like manner as a policy of insurance
becomes in a like case functus officio as to future risks. The Brig Draco, 2 Sumner,
193, 194.
(a) 3 Johns. 352.
(b) The Alexander, 1 Dods. 278; The Hero, 2 id. 139; Case of the Ship Venus,
Abbott on Shipping, 5th ed. Boston, 1846, p. 208.
1 Royal Arch, Swabey, 269, 279. This
case also shows that a bond given with
the consent of the owner, upon a vessel in
a home port, for a new voyage, would
probably not be upheld in the British
admiralty, because it creates a secret lien
[ 474 ]
LECT. XLIX.]
* 362
OF PERSONAL PROPERTY.
bond abroad, and it will be enforced in our American admiralty
courts, which have undoubted jurisdiction over such contracts,
though executed on land and under seal. (c)
It has been made a question, whether a loan on bottomry or
respondentia be good, if the ship or goods be already at sea when
it is effected, inasmuch as the motives to the loan are supposed
to have ceased after the ship's departure. Valin is in favor of
the validity of the loan, and he considers that the presumption is
either that the money has been usefully employed in the things
put at risk, or in paying what was due on that account; and this
reasoning is deemed solid by Marshall, notwithstanding it stands
opposed to the high authority of Emerigon. (d) It has, likewise,
been recently sanctioned by the decision of the Supreme Court
of the United States, who have adjudged that it is not necessary
that a respondentia loan (and the law on this point is the same,
whether applied to respondentia or bottomry bonds) should be
made before the departure of the ship on the voyage, and that it
may be made after the goods are at risk. Nor is it necessary
that the money should be employed in the outfit of the vessel, or
invested in the goods on which the risk is run. It is sufficient
that the risk of the voyage be substantially and really taken, and
the advance made in good faith for a maritime pre-
mium. (e) The *lender is not presumed to lend upon *362
(c) The Sloop Mary, 1 Paine, 671; Menetone v. Gibbons, 3 T. R. 267. The
bottomry bond may be given by the owner, without the concurrence of the master,
or by the master, according to circumstances. The Duke of Bedford, 2 Hagg. Adm.
294. And it may be made by the owner, either in a foreign or home port. The
Brig Draco, 2 Sumner, 157.
(d) Valin's Comm. i. 366; Emerigon, ii. 484; Condy's Marshall, ii. 747, a.
(e) Whether a bottomry bond, executed by the owner in his own place of resi-
dence, be valid, has been questioned, but when executed by him in a foreign port, it
is undoubtedly binding. The Sloop Mary, 1 Paine, 671. It is not necessary to the
validity of a bottomry bond made by the owner of the vessel, that the money borrowed
should be advanced for the necessities of the ship, or cargo, or voyage. The owner
may employ the money as he pleases. But if made by the master, virtute officii, it
must be for the ship's necessities, for the implied authority of the master extends no
further. The Brig Draco, 2 Sumner, 157.
without necessity. Ib. 276. Compare
note (e), criticised in Greely v. Smith, 3
Woodb. & M. 236, 254. It was decided
that an agreement to postpone payment
of a bottomry bond until after the con-
clusion of a subsequent voyage, &c., but
that the bond should remain a lien on the
ship in the mean time, and a postponement
accordingly, put an end to the right of the
obligee to proceed in rem as against sub-
sequent mortgagees, although the agree-
ment might be a valid personal contract.
[ 475 ]
* 363
[PART V.
OF PERSONAL PROPERTY.
the faith of any particular appropriation of the money; and
if it were otherwise, his security could not be avoided by any
misapplication of the fund, where the risk was bona fide run upon
other goods. The loan may be made, and the risk taken, upon
the usual footing of policies of insurance, lost or not lost, and
precisely as if the ship was then in port; and if, before the
hypothecation be given, the property be actually lost by any
of the perils enumerated in it, the loss must be borne by the
lender. (a)
After the risk has ceased by the safe arrival of the ship, marine
interest ceases, and gives place to the ordinary legal interest, on
the aggregate amount of the debt due, consisting of the money
lent with the maritime premium. This is understood to be the
rule in the French law. The ordinary interest begins upon the
accumulated sum when the marine interest ceases; and Boulay-
Paty follows the authority of Emerigon, and of the French judicial
decisions, in support of this rule, and in opposition to the doctrine
of Pothier and Pardessus, who insist that no interest whatever
accrues between the cessation of the maritime interest and the
judicial demand of the debt. (b)
*363
* The French code (a) prohibits all loans, in the nature
of bottomry or respondentia, upon seamen's wages or voy-
ages. A sailor is not generally in a situation to expect any great
profit which would justify a loan upon maritime interest, and
wages are too slender a basis for a maritime loan, and the pro-
vision is dictated by sound policy. The English and American
courts of admiralty have a broad equity jurisdiction over such
(a) Conard v. Atlantic Insurance Company, 1 Peters, 386.
(b) Emerigon, ii. 414; Pothier, Traité du Pret, à la grosse Aventure, n. 51. M.
Pardessus, Cours de Droit Com. iii. n. 917; Boulay-Paty, iii. 80-89. Marshall
on Insurance, ii. 752, lays down the rule according to the opinion of Pothier, who
holds that the ordinary interest, after the risk has ceased, commences only on
the principal sum lent, and not on the joint principal and maritime interest, for that
would be compound interest. There are no English decisions on the point, and if
the French law is to govern, it is decidedly against the opinion of Pothier. There
is ground for the conclusion, that when the risk has been run, and the peril ceases,
the loan, with the extraordinary premium, becomes an absolute debt, which ought.
to carry interest if the payment be delayed. The French law declares, and it is also
the doctrine of Casaregis, that a bottomry contract, if made payable to order or
bearer, is negotiable, like a bill of exchange, and is to be dealt with and protested
in like manner. Casaregis, Disc. 55; Boulay-Paty, iii. 97; Code de Commerce,
art. 313.
(a) Code de Commerce, art. 319.
[ 476 ]
LECT. XLIX.]
363
OF PERSONAL PROPERTY.
contracts. The bottomry bond may be good in part, and bad in
part; and if the premium has been unduly enhanced from a knowl-
edge of the master's necessities, the Court of Admiralty, which
acts ex æquo et bono, may moderate it or refuse to ratify it. (b)
But if marine interest has not been stipulated, no court can
supply the omission, and it will be taken to be a contract upon
ordinary interest; for no new obligation can be inferred or
reasoned out by a commentary on the contract itself. (c)
(b) 1 Dods. 277, 283; The Ship Packet, 3 Mason, 255; The Nelson, 1 Hagg.
Adm. 176, 326, 327; The Cognac, 2 id. 377; The Hunter, Ware, 255. [Brig Bridge-
water, Olcott, 35; Furniss v. Brig Magoun, ib. 55.]
(c) Pothier, Traité du Pret, à la grosse, n. 19. See, for further information on the
subject of maritime loans, Emerigon's Essay on Maritime Loans, which is the most
complete treatise extant on the subject. The substance of it has been ably incor-
porated into the work of M. Boulay-Paty, on a Course of Maritime Commercial
Law, and it has been closely and accurately translated by John E. Hall, Esq., of Bal
timore.
[477]
• 366
[PART V.
OF PERSONAL PROPERTY.
LECTURE L.
OF INSURANCE OF LIVES, AND AGAINST FIRE.
1. Of Insurance of Lives. These insurances are liberal contracts,
and while they create an advantageous investment of capital, they
operate benevolently towards the public. Their usual purpose is
to provide a fund for creditors, or for family connections in case
of death. The insurer, in consideration of a sum in gross, or of
periodical payments, undertakes to pay a certain sum, or an
annuity, depending upon the death of a person whose life is
insured. The insurance is either for the whole term of life, or
for a limited period. Such is the nature of these contracts, that
they are well calculated to relieve the more helpless members of
a family from a precarious dependence, resting upon the life of a
single person; and they very naturally engage the attention and
influence the judgment of those thinking men, who have been
accustomed to reflect deeply upon the past, and to form just
anticipations of the future.
The practice in Europe, of life assurances, is in a great degree
confined to England, and it has been introduced into the United
States. (a) It is now slowly but gradually attracting the public
attention and confidence in our principal cities. According to
a maxim of the civil law, the life of a freeman was above all
valuation; liberum corpus æstimationem non recipit; and
*366 the nautical * legislation of some parts of Europe, on this
subject, has been founded upon the principle, that it was
unfit and improper to allow insurances on human life. They
have been tolerated in Naples, Florence, and by the ordinances
of Wisbuy, but they were condemned in the Le Guidon, as con-
trary to good morals, and as being the source of infinite abuse.
So, insurances for life were expressly forbidden by the ordinance
(a) The Massachusetts Hospital Life Insurance Company was incorporated in
1818.
[ 478]
LECT. L.]
* 367
OF PERSONAL PROPERTY.
of Louis XIV.; and the prohibition was made to rest on the
reason given in the civil law. The ordinances of Amsterdam,
Rotterdam, and Middleburg adopted the same rule, which, though
true in some respects, was in this case very absurdly applied. (a)
The new French code has omitted any express provision on the
subject, though Boulay-Paty thinks that a prohibition is covertly
but essentially contained in art. 334 of the code; and he inveighs
vehemently against policies upon human life, as being gambling
contracts of the most pernicious kind. (b) Most of the commen-
tators on the new code, as Delvincourt, (c) Locré, (d) De Laporte,
and Estrangin, concur in the same opinion. Pardessus, (e) on the
other hand, is in favor of the legality of such insurance; and this
must have been the opinion of the French government,
for a royal * ordinance of 1820 established a company for *367
the purpose of insuring lives.
There are two chartered life assurance companies established in
France, and though the terms of insurance are moderate, and the
companies extremely respectable, they have met with very little
encouragement; and this grave species of insurance does not
seem to be congenial to the taste and habits of either the French
or Italians. In the Netherlands, life assurance societies are estab-
lished with reasonable anticipations of success. An ordinance
of the government gives them a monopoly by excluding all foreign
companies from interfering with the business on their native soil.
The same exclusion exists in Denmark, while the life assurance
institutions in that kingdom are said to be nothing. They are
more likely to flourish in Germany than in any other part of
Continental Europe, judging from the experiment already made,
and the character and dispositions of the people. (a)
(a) Le Guidon, c. 16, art. 5; Ord. of Wisbuy, art. 66; Ord. de la Mar. tit. Assur-
ances, art. 10; Valin ii. 54; Pothier, h. t., n. 27; Emerigon, i. 198.
(b) Cours de Droit Com. iii. 366, 368, 496–506. Istæ conditiones sunt plenæ tris-
tissimi eventus, et possunt invitare ad delinquendum. Grival, dec. 57, n. 48. Boulay-
Paty says, that these life assurances ought to be left to their English neighbors. The
English are willing they should be so left, and exult in the distinction; for Sergeant
Marshall, in his Treatise on Insurance, ii. 768, suggests that the prohibition of insur-
ance on lives in France and Italy proceeds from motives of policy, founded on a
startling sense of the great infirmity of their public morals, which would expose to
hazard lives so insured.
(c) Inst. de Droit Com. Français, ii. 345.
(d) Esprit du Code de Commerce, iv. 75.
(e) ii. 303.
(a) Edinburgh Review, xlv. 488-490. In 1828, a life insurance company was
established at Gotha, in Germany, and has been attended with great success.
[ 479 ]
* 368
[PART V.
OF PERSONAL PROPERTY.
The life assurance companies in England commenced with the
Amicable Society, in the beginning of the last century; and in
1827, there were in the United Kingdom forty-four life assurance
companies, all maintaining a zealous and dangerous competition.
The companies used formerly to select and take only lives of
health and vigor; but now it is said to be the practice to accept
all lives proposed, where no positive disease is manifested. So,
residence in any part of Europe is universally admitted, and the
companies are very much exposed to frauds, and the consequent
diminution of credit and confidence, by the assurance of bad
'ives, and sinking the average duration of lives insured much
below the average duration of human life. (b) There is no doubt
a good deal of intrinsic difficulty in the subject; and it requires
no ordinary degree of science, skill, and experience to form just
and accurate rates of insurance, or tables of annuities
* 368 on * scales measuring truly the probabilities and value of
life, in its various stages of existence, in different climates,
in different employments, and in the vicissitudes of action to
which it is subject.
(1.) The party insuring must have an interest in the life
insured. The English statute of 14 Geo. III. c. 48, prohibited
insurances on lives, when the person insuring had no interest in
the life, and it prohibited the recovery under the policy of a
greater sum than the amount or value of the interest of the
insured in the life, and required the insertion in the policy of the
person's name interested therein, or for whose benefit the policy
was made. A bona fide creditor has an insurable interest in his
debtor's life to the extent of his debt, for there is a probability,
more or less remote, that the debtor would pay the debt if he
lived. (a) The insurance is frequently made a part of the
creditor's security in loans of money. A person may insure his
own life for the benefit of heirs or creditors, or he may insure the
life of another in which he may be interested, and assign the
policy to those who have an interest in the life. The policy is
good for the creditor as a collateral security, though he may have
other security; and being substantially a contract of indemnity
against the loss of the debt, it ceases, as to the creditor, with the
(b) Edinburgh Review, xlv. 498, 500.
(a) Anderson v. Edie, Park on Insurance, 6th ed. 575.
[480]
LECT. L.]
* 369
OF PERSONAL PROPERTY.
extinguishment of the debt. (b) If it be assigned by way of
security, it is not, in that case, extinguished by the payment of
the debt, but the reversionary interest in the insured becomes
the means of credit to him on other occasions. The insurable
interest in the life of another person must be a direct and definite
pecuniary interest, and a person has not such an interest in the
life of his wife or child, merely in the character of husband or
parent. (c) But if a child be supported by his father, who is
dependent on some fund terminable by his death, the child
has an insurable interest * in the father's life. (a) So, it * 369
has been held, that a trustee who had a legal technical
interest as executor, though not the beneficial interest in the
life of another, may insure it. (b) The necessity of an interest
in the life insured, in order to support the policy, prevails gen-
erally in this country, because wager contracts are almost univer-
sally held to be unlawful, either in consequence of some statute
provision, or upon principles of the common law. (c)
(2.) We have seen that the terms and conditions of the English
policies are more relaxed now than formerly, but this is not the
(b) Godsall v. Boldero, 9 East, 72.
(c) Halford v. Kymer, 10 B. & C. 724. By the New York statute of April 1,
1840, entitled “ An act in respect to insurances for lives, for the benefit of married
women," it is made lawful for any married woman, by herself and in her name, or in
the name of any third person, with his assent, as her trustee, to cause to be insured,
for her sole use, the life of her husband, for any definite period, or for the term of his
natural life; and in case of her surviving her husband, the net amount of the insur-
ance becoming due shall be payable to her, to and for her own use, free from the
claims of the representatives of the husband, or of any of his creditors. Such exemp-
tion not to apply where the amount of premium annually paid shall exceed $300;
and in case of the death of the wife before her husband, the amount of the insurance
may be made payable after her death to her children, or their guardian, for their use.
(a) Lord v. Dall, 12 Mass. 115. A sister has an insurable interest in the life of a
brother on whom she depends for support.
(b) Kenyon, C. J., in Tidswell v. Ankerstein, Peake's Cases, 151.
(c) Vide supra, 278. The New York statute (R. S. i. 662) against wagers, does
not, in express terms, extend to insurances on lives, as the statute of Geo. III.
does; but the general prohibition of wagers, bets, or stakes, depending "upon any
casualty, or unknown or contingent event whatever," may constructively apply. The
10th section of the New York act shows that insurances were included in the prohi-
bition, for it declares that the prohibition shall not extend so as to affect insurances
"made in good faith, for the security or indemnity of the party insured." This implies
that the insured must have a real beneficial interest in the life of another. The bona
fide assignee of a life policy may sue in the name of the assignor, and equity will
compel the assignor to permit the assignee to use his name. Ashley v. Ashley, 3 Sim.
149.
VOL. III.
31
[ 481 ]
* 369
[PART V.
OF PERSONAL PROPERTY.
case with the American policies upon lives.¹ They contain a
condition, when relating to the lives of persons in the northern
1 Life Insurance.—(a) Insurable Interest.
- The necessity of such an interest, apart
from statute, is asserted in Ruse v. Mutual
Life Ins. Co., 23 N. Y. 516; Bevin v.
Connecticut M. L. Ins. Co., 23 Conn. 244.
But it is denied on the ground that wagers
are valid at common law, and that this
class of wagers can hardly be pronounced
contrary to public policy, when they are
admitted to be valid if the assured have
an interest in the life insured, in Trenton
M. L. & F. Ins. Co. v. Johnson, 4 Zabr.
576. See Miller v. Eagle Life & H. Ins.
Co., 2 E. D. Smith, 268; Mowry v. Home
Ins. Co., 9 R. I. 346.
An interest is generally required by
statute. But it is important to observe
that many of the terms of the English act
are not adopted in this country, and that
the English decisions under it must be
received with great caution. Thus the
American decisions as to what interests
are sufficient will be found more favorable
to the assured than the English are. In
England, Halford v. Kymer, 368, n. (c), is
cited by later cases with approbation.
Hebdon v. West, 3 B. & S. 579. But in
America a father is held to have an in-
surable interest in the life of his minor
son, and it is intimated, that as considera-
tions of morals and natural affection may
be stronger than those of positive law,
they may be equally efficacious, in the
absence of statute, to form the basis of a
policy. Loomis v. Eagle Life & H. Ins.
Co., 6 Gray, 396. See also Mitchell v.
Union L. Ins. Co., 45 Me. 104; Forbes v.
American M. L. Ins. Co., 15 Gray, 249.
The language of other cases goes to sus-
tain the proposition that a person has an
insurable interest in the life of another
when there is a reasonable probability
that he will gain by the latter's remaining
alive or lose by his death. Miller v. Eagle
Life & H. Ins. Co., 2 E. D. Smith, 268,
294; Hoyt v. N. Y. L. Ins. Co., 3 Bosw.
440. Bliss on Life Ins. § 21. A wife has
an interest in the life of her husband,
apart from statute. Thompson v. Amer-
ican Tontine L. & S. Ins. Co., 46 N. Y.
674; Baker v. Union Mut. L. Ins. Co., 43
N. Y. 283. So, perhaps, has a husband
in his wife's. Wight v. Brown, 11 Ct. of
Sess. 2d ser. 459. See, further, Morrell
v. Trenton Mut. Ins. Co., 10 Cush. 282.
It is clear that if the insured had an
interest at the time the policy was issued,
it is not necessary that he should have
one at the time of the death. Life insur-
ance is not a contract of indemnity, and
Godsall v. Boldero, 368, n. (b), is no longer
law. Dalby v. India & London L. Ass.
Co., 15 C. B. 365; Law v. London Indis-
putable L. P. Co., 1 Kay & J. 223; Heb-
don v. West, 3 Best & S. 579, 591; Rawls
v. American M. L. Ins. Co., 27 N. Y. 282;
Mowry v. Home Ins. Co., 9 R. I. 346;
Loomis v. Eagle Life Ins. Co., 6 Gray,
396, 401; Insurance Co. v. Bailey, 13
Wall. 616, 619; Robert v. New England
M. L. Ins. Co., 2 Disney, 106. So a bona
fide assignee of a policy valid in its in-
ception need not have any interest in the
life insured, St. John v. American M.
L. Ins. Co., 13 N. Y. 31; Valton v. Na-
tional L. F. L. Ass. Soc., 22 Barb. 9; 20
N. Y. 32; although the language in
Stevens v. Warren, 101 Mass. 564, looks
the other way. A person has an insurable
interest in his own life, and may make
the loss payable to his personal represent-
atives, or to a stranger who has no in-
terest. Campbell v. New England M. L.
Ins. Co., 98 Mass. 381; Provident Life
Ins. & Inv. Co. v. Baum, 29 Ind. 236. See
American Life & H. Ins. Co. v. Robert-
shaw, 26 Penn. St. 189. Under the laws
of some states children named in such a
policy may have a vested interest in the
proceeds, although not parties to the con-
tract. Landrum v. Knowles, 7 C. E.
Green (22 N. J. Eq.), 594; Chapin v.
[ 482]
LECT. L.]
*369
OF PERSONAL PROPERTY.
states, that the policy is to be void if the insured shall die upon
the high seas or the great lakes; or shall, without the previous
Fellowes, 36 Conn. 132; Connecticut Mut.
L. Ins. Co. v. Burroughs, 34 Conn. 305.
They have even been said to be the
"assured within the meaning of the
policy, and proper persons to sue upon it.
Hogle v. Guardian Life Ins. Co., 6 Rob.
(N. Y) 567; 4 Abb. Pr. N. s. 346. But it
may be doubted if this is the law in most
jurisdictions; see cases supra; Tweddle v.
Atkinson, 1 Best & Sm. 393; and com-
pare Greenfield v. Mass. Mut. L. Ins. Co.,
47 N. Y. 430. Post, 376, n. 1, (c). But it
is said that such arrangements as these
would not be allowed to be made a cover
for a mere wager. Stevens v. Warren,
101 Mass. 564; Miller v. Eagle L. & H.
Ins. Co., 2 E. D. Smith, 268. In Rawls
v. Am. M. L. Ins. Co., 27 N. Y. 282, where
the policy was taken out in the name of
a debtor payable to his creditor, who
really obtained it and paid the premiums,
it was treated as a contract with the latter.
See also Rivers v. Gregg, 5 Rich. Eq. (S.
C.) 274. But see Woodbury Savings
Bank v. Charter Oak Fire Ins. Co., 29
Conn. 374.
(b) Conditions of the Policy. If a party
insures his own life by a policy containing
no exception in case of suicide, it may
still be held contrary to public policy to
allow him to insure himself a benefit in
case of his committing a felony, where
suicide is felonious. But such a policy is
not avoided by suicide while insane. Horn
v. Anglo-Australian & Univ. F. L. Ins.
Co., 7 Jur. N. s. 673; 30 L. J. N. s. Ch. 511;
2 Bigelow, 602. Very possibly a policy
on the life of another would not be avoided
by his felonious suicide. See Moore v.
Woolsey, 4 El. & Bl. 243, 255. When the
policy contains the usual condition against
suicide or death by the party's own hand,
the prevailing opinion is, that if the party
kills himself voluntarily, knowing the
nature and effect of the act which he
does, and intending the consequence, the
policy is avoided, although he is insane at
the time. Clift v. Schwabe, 3 C. B. 437;
Dufaur v. Professional L. Ass. Co., 25
Beav. 599, 602; White v. British Empire
M. L. Ass. Co., L. R. 7 Eq. 394; Dean v.
American Mut. Life Ins. Co., 4 Allen, 96;
Cooper v. Massachusetts Mut. L. Ins. Co.,
102 Mass. 227; Nimick v. Mut. Ben. L.
Ins. Co., 3 Brewster, 502. The statement
in note (d) is too broad, although Breas-
ted's case there cited, and affirmed in 4
Seld. (8 N. Y.) 299, confines the exception
to felonious suicide, and holds the company
liable if the suicide is caused by the in-
sanity, in opposition to the prevailing
doctrine. It has also been held that the
policy is not avoided by suicide which the
jury find to have resulted from an irre-
sistible impulse, and not from the will.
Easterbrook v. Union Mut. L. Ins. Co., 54
Me. 224; Gay v. Union M. L. Ins. Co.,
U. S. C. C. Conn. 1871, 2 Bigelow, 4; Terry
v. Life Ins. Co., 1 Dillon, 403; St. Louis
M. L. Ins. Co. v. Graves, 6 Bush, 268.
The policy is generally conditioned to
be void, also, if the assured die in the
known violation of law. It is conceded
that the violation of law must be the cause
of the death to exempt the insurer, and
it has been confined to voluntary criminal
acts in some cases. Cluff v. Mut. Benefit
L. Ins. Co., 13 Allen, 308; 99 Mass. 317;
See Harper v. Phoenix Ins. Co., 18 Mo.
109; 19 Mo. 506; Overton v. St. Louis M
L. Ins. Co., 39 Mo. 122. On the other
hand, it has been held that if the violation
of law, though not criminal, was of a
character likely to produce the death as
a natural, reasonable, or legitimate con-
sequence, it would avoid the policy. Brad-
ley v. Mut. Ben. L. Ins. Co., 45 N. Y. 422.
A breach of the restriction on residence
need not be the cause of the death in order
to avoid the policy. Nightingale v. State
Mut. L. Ins. Co., 5 R. I. 38; Hathaway v.
Trenton Mut. L. Ins. Co., 11 Cush. 448.
[483]
* 370
[PART V.
OF PERSONAL PROPERTY.
consent of the company, pass beyond the settled limits of the
United States, and of the British provinces of the two Canadas,
Nova Scotia, and New Brunswick, or south of the states of
Virginia and Kentucky; and they all contain the like condition
or exception, if the assured enter into the military or naval
service; or in case he shall die by suicide, or in a duel, or by the
hands of justice. (d) The life insurance would be avoided upon
the general policy of the law, on the execution of the assured
for felony, without the insertion of this last condition. (e) The
basis of the insurance is a declaration in writing of the person
making the insurance, as to the birthplace, age, residence, and
employment of the party insured, with a description of the
diseases or infirmity (if any) with which he has been afflicted.
This declaration, not being spread out at large upon the policy,
is not strictly a warranty, and it is sufficient if it be given in good
faith, and be true in substance. Whatever averment or repre-
sentation is inserted in the policy becomes a warranty, and
* 370 must be strictly true. But if there be no warranty or *rep-
resentation, or fraud, the insurer runs the risk of the good-
ness of the life; (a) and even a warranty that the person is in
good health is not falsified by the fact that he was at the
time subject to great inconvenience, and a partial palsy, in con-
sequence of an old wound not dangerous to life; or that he was
troubled with spasms and cramps from fits of the gout. This
has been held to be a reasonable good state of health within the
warranty. The seeds of death are in every human constitution,
and it is only requisite that there be not at the time any existing
disorder tending to shorten life. (b)
(3.) The life in the given case may be insured for the term
of natural life, as is usual, or it may be insured for a definite
period. (c) In the case of a policy of the latter kind, if the party
(d) If the assured died by suicide while insane, the case is not within the excep-
tion. Borradaile v. Hunter, 5 Mann. & Gr. 639; Breasted v. Farmers' L. & T. Com-
pany, 4 Hill (N. Y.), 73; [4 Seld. 299. But see 369, n. 1, (b).]
(e) Amicable Ass. Society v. Bolland, 2 Dow & Clark, 1; Bolland v. Disney,
3 Russ. 351; 4 Bligh, N. 8. 194.
(a) Stackpoole v. Simon, at N. P., 2 Marshall on Insurance, 772.
(b) Ross v. Bradshaw, 1 Wm. Bl. 312; Watson v. Mainwaring, 4 Taunt. 763
Willis v. Poole, at N. P., 2 Marshall on Insurance, 771.
(c) It is said to be now usual, in the English policies on lives, to state the day of
the commencement, and of the termination thereof, and to declare that both are inclu-
sive. Ellis on the Law of Fire and Life Insurance, 136. A life policy may be
[ 484 ]
LECT. L.]
* 370
OF PERSONAL PROPERTY.
receives a mortal wound within the period, and dies after it has
expired, the underwriter is discharged. (d) All concealment or
suppression of material facts avoids the policy. The same good
faith is as requisite in this as in all other policies; and whether
the suppression arises from fraud or accident is quite immaterial,
if the fact be material to the risk, and that is a question for a
jury. (e)
2. Of Insurance against Fire. By this insurance the under-
writer, in consideration of the premium, undertakes to indemnify
the insured against all losses in his houses, buildings, furniture,
ships in port, or merchandise, by means of accidental fire happen-
ing within a prescribed period. The premium is usually paid in
advance, and the contract effected by the parties without the
intervention of a broker. (f)
It has been made a question by some persons, whether the
negligence and frauds which the insurance of property from fire
has led to, did not counterbalance all the advantages and relief
assigned to a bona fide creditor, but it will not avail as to third persons, creditors of
the insured, without notice to the insurers before the death of the insured, and
the acceptance of the assignment by the assignee before that date. Succession
of Risley, 11 Rob. (La.) 298. The general rule is, that if a party has been absent
seven years, without having been heard from, the presumption of law arises that he
is dead, but there is no legal presumption as to the time of his death. Nepean v. Doe,
2 M. & W. 894; [In re Phené's Trusts, L. R. 5 Ch. 139.]
(d) Willes, J., 1 T. R. 260. [Howell v. Knickerbocker L. Ins. Co., 44 N. Y. 276.]
(e) Lindenau v. Desborough, 8 B. & C. 586; Morrison v. Muspratt, 12 B. Moore,
231; 4 Bing. 60, s. c.
(ƒ) The offices of fire insurance companies usually annex to their policies the
various classes of hazards and rates of annual premiums. The lowest rate of pre-
mium is for buildings exposed to the least degree of hazard, as buildings of brick or
stone covered with tile, slate, or metal, the window shutters of solid iron, gutters and
cornices of brick, stone, or metal, and party-walls above the roof. The rate of pre-
mium rises in proportion to the increase of hazard, and is highest in buildings entirely
of wood. The rate of premium depends likewise upon the fact, by whom and by
what trade, or for what purpose the building is occupied, and whether as a private
dwelling or otherwise, and its situation with respect to contiguous buildings, and
their construction, materials, and use. Goods are also classed, in respect to the rates
of premium, into such as are not hazardous, hazardous, extra hazardous, and such as com-
pose cases of extraordinary risk, and are the subject of special agreement. In England,
it is sometimes part of the contract of insurance, that the insurer is not to be liable for
loss arising from ignition occasioned by natural heating of the articles insured, or by
the misapplication of fire heat under process of manufacture. Ellis on Fire and Life
Insurance, 25. Mr. Ellis infers, from the case of Austin v. Drewe, 6 Taunt. 436, that
damage by heat alone, without ignition, is not covered by the ordinary fire policy, even
though there be no express provision against a damage of that kind.
[485]
*371
[PART V.
OF PERSONAL PROPERTY.
which such insurances have afforded in cases of extreme distress.
But the public judgment in England and in this country has long
since decided that question; (g) and insurance companies
*371 against fire have multiplied exceedingly, and extended
their dealings to every part of the country, and excited
and deserved public confidence, by reason of the solidity of their
capital, and the skill, prudence, and integrity of their opera-
tions. (a)
(g) A late English traveller, Mr. Elliott, says that nearly all the houses in Berlin,
the capital of Prussia, are insured against fire.
(a) The great conflagration in the city of New York, on the night of the 16th and
morning of the 17th December, 1835, was unexampled in this country since fire insur-
ance was in practice, in the rapidity and violence of its ravages, and in the amount of
property destroyed. It, of course, absorbed the capital of many of the most solidly
established fire insurance companies, and rendered them insolvent. This was an
extraordinary case, and without precedent, and was not within the reach of ordinary
calculation. Fire insurance in England commenced about a century and a half ago,
and is carried on by joint stock companies with large capital, though there are others
called contribution societies, in which every person insured becomes a member or pro-
prietor, and participates in the profit and loss of the concern. M'Culloch's Dictionary
of Commerce, art. Insurance. A mutual insurance association of this kind existed
in New York for many years after the peace of 1783, and before incorporated com-
panies with capital stock came in fashion. The New York Contributionship Fire
Company was incorporated in April, 1822, on that basis. There are others of that
kind existing now in some of the states, and mutual insurance companies have of late
become more frequent and attractive. And since the public confidence in the incor-
porated insurance companies, with comparatively small capitals, became impaired by
reason of losses by the great fire in New York, a voluntary private association of
that kind, under the title of the Alliance Mutual Insurance, was instituted December
23, 1835. Formerly the English fire insurance companies were at liberty to insure
property in New York, by means of an agency established here. This was deemed
by our citizens as the safest source, owing to their great capitals, to apply to for indem-
nity against fire. But a different policy prevailed and finally gained the ascendency
with our legislature. A prohibitory act applicable to such cases was defeated in
April, 1807, and again in March, 1809, by the objections of the Council of Revision,
which were drawn and submitted to the Council by the author of this note, then a
member of the Council. But on the 18th of March, 1814, the prohibition passed into
a law. The Council of Revision at that time abandoned their former ground, though
the individual member who brought forward the objections on the two former occa-
sions, persevered in raising the same objection, The prohibition was originally con-
fined to all foreign insurances against fire. But by the act of May 1st, 1829, c. 336,
the prohibition was extended to marine insurance and bottomry. The law by the
N. Y. R. Statutes, 3d ed. i. 896, 897, now is, that all foreign insurances against fire
in this state are prohibited, and a ratable two per cent premium is to be paid into the
state treasury by the agent of foreign individuals or associations, not authorized by
law for effecting insurances against losses by fire, and against marine risks. The
prohibition extends equally to lending money by such individuals and associations
or respondentia or bottomry, or of effecting any contract by way of insurance or loan,
[486]
LECT. L.]
* 371
OF PERSONAL PROPERTY.
We will consider, (1) the interest; (2) the terms and con-
struction of the policy; (3) the adjustment of the loss.
(1) Of the Interest in the Policy. If policies were without
interest, they would be peculiarly hazardous, by reason of the
temptation which they would hold out to the commission of arson,
and they would fall within the general prohibition, by statute, of
wager policies. (b) According to Lord King and Lord Hard-
wicke, (c) an insurance against fire, without an interest by the
insured in the property lost, at the time of insuring and at the
time of the loss, was void even at common law. A creditor may
have a policy on the house and goods of his debtor, upon which
he has a lien or mortgage security, for that gives him a sufficient
interest. (d) So, a trustee, or agent, or factor, who has the
custody of goods for sale on commission, may insure them, and
a bona fide equitable interest may be insured. (e) In the case of
or any other business which marine insurance companies under the laws of New York
may do.
(b) Vide supra, 278, [369, n. 1.]
(c) Lynch v. Dalzell, 3 Bro. P. C. 497; [Tomlins' ed. iv. 431;] Sadlers' Company
v. Badcock, 2 Atk. 554.
(d) On a sale by a master on a foreclosure of a mortgage, and before the report of
the sale is confirmed, the premises are destroyed by fire, it was held, in the Circuit
Court of New York, that the interest of the assured was existing at the time of the
loss. McLaren v. H. F. Ins. Co., 4 N. Y. Legal Observer, 137. [But see s. c. 1 Seld.
151.]
(e) Lucena v. Craufurd, 3 Bos. & P. 75, 95, 98; 5 id. 289, s. c.; 2 Marshall on
Insurance, 789; Locke v. North American Ins. Company, 13 Mass. 67. An equity
of redemption is an insurable interest. Strong v. Manufacturers' Ins. Company, 10
Pick. 40. A mortgagor and mortgagee may each insure the same building, so as to
recover their respective interests therein, without disclosing the qualified nature of the
interest, except the same be required. Traders' Ins. Company v. Robert, 9 Wend. 404 ;
Jackson v. Mass. Mutual Fire Ins. Company, Sup. Court, Mass. 1840, s. p. [23 Pick. 418;
ante, 281, n. 1.] If the mortgagee insures on his own account, and for his debt, when that
is extinguished, the policy ceases, and the mortgagor has no interest in it, and cannot
take advantage of it. If the premises be destroyed by fire before the debt is ex-
tinguished, the insurer must pay the debt to the amount of the insurance to the
mortgagee, and he will then be entitled to an assignment of the debt, and recover it
of the mortgagor; for the payment of the insurance is no discharge of the debt, but
it only changes the creditor. If the mortgagor insures, he will, in case of loss, be
entitled to recover the amount of it, for it is his own loss, and he may insure to the
full value of his property, notwithstanding any incumbrance thereon. Carpenter v.
The Providence Washington Ins. Company, 16 Peters, 495. The mortgagee has no
right to claim the benefit of a policy on the mortgaged property made for the mortga
gor, as he has no more title under the contract than any other creditor. Policies are
special contracts with the assured, and are not deemed in their nature incident to the
property insured. [See 376, n. 1, (c).]
[487]
* 372
[PART V.
OF PERSONAL PROPERTY.
De Forest v. Fulton Fire Insurance Company, (f) the court car-
ried this question of constructive interest to a still greater extent,
and it was decided that a commission merchant, consignee, or
factor, having goods of the consignor or principal in his posses-
sion, has an insurable interest therein, not merely to the extent
*
of his commissions, but to the full value of the goods, with-
372 out reference to his lien. He was to be deemed owner
as to all the world, except his principal, for the purpose of
an insurable interest.¹ But it is usually made a condition in our
American policies, that the nature of the property be disclosed;
and goods held in trust, or on commission, must be insured as
such, or they will not be covered by the policy. (a) A person
having an interest in the rent of buildings, may insure the rent
from loss by fire within the prescribed period, and the claim would
be for the loss of so much rent as would have arisen between the
time of the fire, and the end of the given period, if the peril had
not intervened. (b) And as in the case of marine insurance, if
the policy be for whom it may concern, it will cover any interest
existing at its date. (c)
(2) Of the Terms and Construction of the Policy.— A policy
against fire is strictly a policy on time, and the commencement
and termination of the risk are stated with precision. The Eng-
lish policies (and I presume the American also) contain the
exception of damage by fire happening by "invasion, foreign
(ƒ) 1 Hall (N. Y.), 84.
(a) [See South Australian Ins. Co. v. Randell, L. R. 3 P. C. 101; 6 Am. Law Rev.
460, 468.] If there be no such condition in the policy, and there be no questions put,
the assured is not bound to disclose the nature of his title. Strong v. Manufacturers'
Ins. Company, 10 Pick. 40.
(b) If the policy be on a house which is rented to a tenant, and it be destroyed by
fire, Mr. Bell considers it to be a difficult and unsettled question, whether the policy
would cover the rent lost, as being part of the owner's loss, when the policy was silent
as to rent eo nomine. See 1 Bell's Comm. on the Laws of Scotland, 627. But I appre-
hend that with us such consequential damages would not be estimated, and that the
claim of the assured would be confined to the direct loss of the building. On the
insurance of a house or ship, the possible profits that might have arisen if the loss had
not happened, is an incidental part of the loss, and not recoverable under such a
policy. 1 Ad. & El. 621. But a policy on a store, and $1,000 on the stock of goods
therein, for six years, attaches to any goods the assured may have in the shop, to the
amount insured at any time within the six years. Lane v. Maine M. Fire Ins. Com-
pany, 3 [Fairfield,] 44.
(c) Jefferson Ins. Company v. Cotheal, N. Y. Superior Court of Common Fleas,
March, 1829, [7 Wend. 72.]
1 See 376, n. 1, (a).
[488]
LECT. L.]
* 373
OF PERSONAL PROPERTY.
enemy, or any military or usurped power whatsoever." It is
sometimes added, "or by riot or civil commotion"; for the words
"usurped power" mean invasion from abroad, or an internal
rebellion, and not the power of a common mob.(d)
The insured is bound in good faith to disclose to the
*
insurer every fact material to the risk, and within his *373
knowledge, and which, if stated, would influence the mind
of the insurer in making or declining the contract. (a) The
strictness and nicety required in the contract of marine insurance
do not, it has been said, so strongly apply to insurances against
fire, for the risk is generally assumed upon actual examination of
the subject by skilful agents on the part of the insurance offi-
cers. (b) Reasonable grounds of apprehension of loss from exist-
ing facts known to the insured, and denoting impending danger,
must be stated to the insurer, or the policy will be void, even
though there was no intentional fraud in the case. (c) If there
be a representation of facts, it is sufficient if the same be fairly
made and substantially true; and if the representation be re-
ferred to in general terms in the policy, and not spread out at
large on the face of the instrument, it is still only a representation,
and does not amount to the technical warranty. (d) When the
policy contains a warranty or condition appearing upon the face
(d) Drinkwater v. London Assurance Company, 2 Wils. 363. Fire by lightning
is usually declared to be a loss within a fire policy. But books of accounts, written
securities, or evidences of debt, title deeds, writings, money or bullion, are not deemed
objects of insurance, and they are usually specially excepted. Nor are jewels, plate,
medals, paintings, statuary, sculptures, and curiosities included in a policy of insur-
ance, unless specified. Conditions annexed to a policy on the same sheet are to be
taken as being prima facie as part of the policy, though there be no express reference
to them in the policy itself. Roberts v. Ch. M. Ins. Co., 3 Hill, 501. [Murdock v.
Chenango Co. Mut. Ins. Co., 2 Comst. 210.]
(a) Columbian Ins. Co. v. Lawrence, 2 Peters, 25; Curry v. Com. Ins. Company,
10 Pick. 535. [Bebee v. Hartford Mut. F. Ins. Co., 25 Conn. 51.]
(b) Jolly v. Baltimore Equitable Society, 1 Harr. & Gill, 295. [Clark v. Manufac-
turers' Ins. Co., 8 How. 235; Delahay v. Memphis Ins. Co., 8 Humph. 684; Gates v.
Madison Co. M. Ins. Co., 1 Seld. (5 N. Y.) 469; Cumberland Valley Mut. Prot. Ins.
Co. v. Schell, 29 Penn. St. 31.] But Ch. J. Savage, in Fowler v. Ætna Ins. Company,
6 Cowen, 673, held differently, and he saw no reason for a difference on this point
between marine and fire insurance policies.
(c) Bufe v. Turner, 6 Taunt. 338; Walden v. Louisiana Ins. Company, 12 La
134.
(d) Jefferson Ins. Company v. Cotheal, New York Superior Court of Common
Pleas, March, 1829, [7 Wend. 72]; Delonguemare v. Tradesmen's Ins. Company, ib.
2 Hall (N. Y.), 589; Snyder v. Farmers' Ins. and Loan Company, 13 Wend. 92. [See
282, n. 1.]
[489]
* 374
[PART V.
OF PERSONAL PROPERTY.
•
*374
1
of it, although written in the margin or transversely, or on a sub-
joined paper referred to in the policy, it must be strictly complied
with. (e) And yet, where a policy contained a clause prohibit-
ing the use of the building for storing therein goods denominated
in the memorandum annexed to the policy as hazardous, the
keeping of such goods as oil, or spirituous liquors, by a grocer,
in ordinary quantities, for his ordinary retail, was held not to be,
under the circumstances, a storing of them within the policy. (ƒ)¹
A representation that ground contiguous to the building insured
is vacant, does not amount to a warranty that it shall
continue vacant during the continuance of the risk, or
prevent the insured from erecting a building upon it pro-
vided he had not already formed and concealed that intention,
and that the erection was not, in point of fact, in any way the
cause of the loss. (a) So, if it was represented at the time of
the insurance, that the building was connected with another
building on one side only, and before the loss happened it became
connected on two sides, this does not avoid the policy, unless, in
point of fact, the risk thereby becomes increased. (b)¹ The
assured may exercise the ordinary and necessary acts of owner-
ship over his buildings, and make the requisite repairs, without
prejudice to his policy. A contrary rule would be so inconvenient
as, in a great degree, to destroy this species of insurance. (c) But
loss accrues by means of a gross negligence or misconduct of
the workmen, or if the alterations in the building materially
enhance the risk, and are not necessary to the enjoyment of it,
or were not the exercise of ordinary acts of ownership, the insur-
ers will be released from their contract. (d)
if
1
(e) Worsley v. Wood, 6 T. R. 710; Fowler v. Ætna Fire Ins. Company, 6 Cowen,
673; s. c. 7 Wend. 270; Ellis on Fire Insurance, 29, 30; Faulkner v. Central F. Ins.
Company, Kerr (N. B.), 279. [See 282, n. 1; 376, n. 1, (d).]
(ƒ) Langdon v. New York Equitable Ins. Company, 1 Hall (N. Y.), 226. [See 3
Comst. 122.]
(a) Stebbins v. Globe Ins. Company, 2 Hall (N. Y.), 632. [Ante, 284, n. (a); 282,
`n. 1; Gates v. Madison County Mut. Ins. Co., 5 N. Y (1 Seld.) 469, 477.]
(b) Stetson v. Mass. Fire Ins. Company, 4 Mass. 330.
(c) Grant v. Howard Ins. Co., 5 Hill (N. Y.), 10.
(d) Stetson v. Mass. Fire Ins. Company, 4 Mass. 330; Jolly v. Baltimore Equi-
1 Leggett v. Ætna Ins. Co., 10 Rich.
(S. C.) 202; Hynds v. Schenectady
County Mut. Ins. Co., 11 N. Y. 554. Com-
pare Whitmarsh v. Conway F. Ins. Co.,
15 Gray, 359, with Wetherell v. City F.
Ins. Co., ib. 276, and cases cited. See
376, n. 1.
1 See 376, n. 1.
[490]
LECT. L.]
* 375
OF PERSONAL PROPERTY.
The English statute of 9th May, 1828, has prudently protected
the insurer from the impositions to which he is naturally exposed,
by the practice of covering under one policy extended and cumu-
lated subjects of risk. The statute requires that detached build-
ings, or goods therein, occasioning a plurality of risks, be valued
and insured separately; and all insurances against fire, made
upon two or more separate subjects or parcels of risk collectively,
in one sum, are declared void. It is a condition of the policy, in
most cases, that if there be any other insurance already made
against loss by fire on the property, and not notified to the
insurers, * the policy is to be deemed void; and if there *375
be any other insurance on the property afterwards made,
the insurers are to have notice of it with reasonable diligence,
and the same is to be duly acknowledged in writing, or that omis-
sion will also render the policy void. (a) 1
Fire policies usually contain a prohibition against the assign-
ment of them, without the previous consent of the company.
But without this clause, they are assignable in equity, like any
other chose in action; though, to render the assignment of any
value to the assignee, an interest in the subject matter of the
insurance must be assigned also, for the assignment only covers
such interest as the assured had at the time of the assignment. (b)
This restriction upon assignments of the policy applies only to
table Society, 1 Harr. & Gill, 295; Curry v. Commonwealth Ins. Company, 10 Pick.
535. A loss by fire, in policies against fire on land, occasioned by the mere fault and
negligence of the assured, his servants or agents, without fraud or design, is a loss
within the policy. Waters v. M L. Ins. Company, 11 Peters, 213; s. c. 1 McLean,
275; Shaw v. Robberds, 1 Nev. & Perry, 279; s. c. 6 Ad. & El. 75; Henderson v. M.
& F. Ins. Company, 10 Rob. (La.) 164. In Shaw v. Robberds, the rule was stated
to be, if the policy be silent as to alterations with trade or business carried on upon
the premises, such alteration does not avoid the policy, though the trade be more
hazardous, and no notice of the alteration. Pim v. Reid, 6 Mann. & Gr. 1, s. P. The
same rule in marine policies. Supra, 307.
Reassurance is
(a) Carpenter v. Providence W. Ins. Company, 16 Peters, 495.
a valid contract, in cases of fire, as well as in marine policies. The reassurance
operates not upon the risk, but upon the property covered by the original policy,
and the requirements of the contract are satisfied when those in the original policy
are, and notice thereof be given to the reassurer. This species of insurance requires,
as well as the primitive contract, the communication of all material information. New
York B. Fire Ins. Company v. New York Fire Ins. Company, 17 Wend. 359.
(b) Marshall on Insurance, 800. [Hooper v. Hudson R. F. Ins. Co., 17 N. Y. 424.]
1 See 376, n. 1.
[491]
* 375
[PART V.
OF PERSONAL PROPERTY.
transfers before a loss happens, and it applies only to voluntary
sales, and not to sales on execution. (c) In some cases, the stat-
ute creating a fire insurance company authorizes assignments of
policies to the purchaser of the subject insured, and authorizes
the assignee to sue in his own name, provided notice be given of
the assignment before a loss happens, so as to allow the company,
at their election, to return a ratable proportion of the premium,
and be exonerated from the risk.
(3) of the Adjustment of the Loss. - Settlements of losses by
fire are made on the principle of a particular average, and the
estimated loss is paid without abandonment of what has been
saved. (d) Damages and reasonable charges on removing, at a
fire, articles insured, are covered by the policy. So there may be
a general average for a sacrifice made by the insured for the com-
mon good, in a case of necessity. It is analogous to the law of
contribution by cosecurities. (e) If a tenant erects a building
on a lot held under a lease, with liberty to renew or remove
The assignment of a policy without notice to the office, will not, under the English bank-
rupt system, prevent the interest in the policy from passing by a subsequent assign-
ment in bankruptcy, on the ground that the policy without the notice, remained
under the disposing power of the bankrupt as reputed owner. Ex parte Colvill, Mon-
tagu, 110. If buildings insured be mortgaged, the policy is ipso facto assigned to the
mortgagee. Farmers' Bank v. M. A. Society, 4 Leigh, 69. Policies against fires,
being personal contracts, do not pass to the purchaser of the property before loss,
without the assent of the insurer, and the policy ceases if the property be sold with-
out that assent, for no person is entitled to claim for a subsequent loss. Ætna Fire
Ins. Company v. Tyler, 16 Wend. 385; Wilson v. Hill, 3 Met. 66. See, also, supra,
262, as to marine policies.
(c) Brichta v. N. Y. Lafayette Ins. Company, 2 Hall (N. Y.), 372. [Mellen v. Ham-
ilton F. Ins. Co., 17 N. Y. 609.] Strong v. Man. Ins. Company, 10 Pick. 40. And if
the assured contract to sell at a future day on payment, and before the day arrives
the premises are destroyed by fire, this is not an alienation to defeat the policy, for the
assured has the legal title and possession, and an insurable interest and equity equal
to the purchase money. Trumbull v. Portage M. Ins. Company, 12 Ohio, 305; [see
376, n. 1, (b).]
(d) As loss by fire is not generally a total loss, the valuation in the policy, says
Mr. Bell (Comm. i. 627), is rather fixing a maximum beyond which the underwriters
are not to be liable, than a conclusive ascertainment of the value. In France, valued
policies against fire are rejected; and in Wallace v. Insurance Company, 4 La. 289,
the policy, and even the legality of valued policies on fire, seemed to be questioned.
With us, policies against fire are taken to be open ones, unless otherwise expressed.
They are not invariably open policies. Laurent v. Chatham Fire Ins. Company, 1
Hall (N. Y.), 41; Alchorne v. Saville, 6 J. B. Moore, 202, n. [Cushman v. North-
western Ins. Co., 34 Maine, 487.]
(e) Welles v. Boston Ins. Co., 6 Pick. 182.
[ 492]
LECT. L.]
* 376
OF PERSONAL PROPERTY.
*
the building at the end of the lease, and the build- *376
ing be destroyed by fire a few days before the end of the
lease, though the building as it stood was worth more than the
sum insured, and if removed, would have been worth much less,
yet the courts look only to the actual value of the building as it
stood when lost, and they do not enter into the consideration of
these incidental and collateral circumstances, in fixing the true
standard of indemnity. (a)
It is usually stipulated in the policy, that in case of any prior
or subsequent insurance on the same property, and of which due
notice has been given, and a loss occurs, the assured is not to
recover beyond such ratable proportion of the damages as the
amount insured by the policy shall bear to the whole amount
insured, without reference to the dates of the different policies.
The loss is to be certified upon oath, and the certificate of a
magistrate, notary, or clergyman, is made necessary to be pro-
cured in favor of the truth and fairness of the statement of the
loss; and the strict and literal compliance with the terms of these
conditions is held indispensable to a right of recovery. (b) If it
be part of the contract that the insurer is to be liable only to the
extent of the sum insured, and after payment for a partial loss a
total loss ensues, the insurer is liable only for the difference
between the sum already paid and the sum insured. (c) The
contract is confined to the parties, and, as a general rule, no equity
attaches upon the proceeds of policies in favor of any third per-
sons, who, in the character of grantee, mortgagee, or creditor,
may sustain loss by the fire, without some contract or trust to
(a) Laurent v. Chatham Fire Ins. Company, 1 Hall (N. Y.), 41.
(b) Worsley v. Wood, 6 T. R. 710; [Mason v. Harvey, 8 Exch. 819; Roper v.
Lendon, 1 El. & El. 825; Smith v. Haverhill F. Ins. Co., 1 Allen, 297; Campbell v.
Charter Oak Ins. Co., 10 Allen, 213;] Roumage v. Mechanics' Fire Ins. Company, 1
Green (N. J.), 110; Columb. Ins. Company v. Lawrence, 2 Peters, 25; Savage, C. J.,
in Dawes v. N. R. Ins. Company, 7 Cowen, 462; Leadbetter v. Insurance Company,
13 Me. 265. This last is a very strong case. If there be any fraud or false swearing
by the assured, in the exhibition of his proofs of loss, he forfeits his claim to a
recovery. Regnier v. Louisiana State Marine and Fire Ins. Company, 12 La. 344;
Howard v. City Fire Ins. Co., N. Y. Superior Court, May, 1843. The courts are
strict in holding the assured to the utmost candor and good faith in rendering to the
insurer the amount of his loss; and a false and fraudulent exaggeration of the amount
of the property lost, avoids the policy, and destroys the right to recover.
(c) Curry v. Commonwealth Ins. Company, 10 Pick. 535. The law of marine
insurance respecting salvage does not apply to fire policies. Liscom v. Boston M. F.
Ins Company, 9 Met. 205.
[ 493 ]
* 376
[PART V.
OF PERSONAL PROPERTY.
that effect. If the subject of the insurance be burnt during the
continuance of the policy, the benefit of the policy goes to the
personal representatives of the insured, unless by some act of
the party entitled to the proceeds they become clothed with the
character of real estate. (d)¹
(d) Mildmay v. Folgham, 3 Ves. 472; Lord King, in Lynch v. Dalzell, 4 Bro.
P. C. 432, ed. Tomlins; Norris v. Harrison, 2 Mad. 268; Ellis on the Law of Fire
and Life Insurance, 81; Columbia Ins. Company v. Lawrence, 10 Peters, 507; Car-
penter v. Providence W. Ins. Co., 16 Peters, 495. A mortgagee of the property has
no right or title to the benefit of the policy, taken by the mortgagor for his own
benefit, unless it be assigned to him. But if the mortgagor was bound by covenant
or otherwise to insure the premises for the better security of the interest of the mort-
gagee, the latter will have an equitable lien upon the money due on the policy to the
extent of his interest in the property destroyed. Vernon v. Smith, 5 B. & Ald. 1;
Neale v. Reid, 3 Dowl. & Ryl. 158; Thomas v. Vonkapff, 6 Gill & J. 372; Carter
v. Rockett, 8 Paige, 437; [276, n. 1, (c).] Fire policies usually contain a provision
for a renewal on payment of the premium; and some of the London policies of insur-
ance against fire for one year or longer, are understood to operate for fifteen days
beyond the time of the expiration of their policies. This is the case with the Sun,
Fire, and Royal Exchange, and Phoenix Insurance Companies. Hughes on Insurance,
508.
There is an admirable summary of the law of contracts, express and implied,
treated of in this and the preceding volume, to be seen in the Principles of the Law
of Scotland, by Professor Bell, of the University of Edinburgh, 3d ed. 1833. The
essential principles of the law of contracts, of sale, hiring, bailment, surety, negotiable
paper, partnership, maritime contracts of affreightment, average, salvage, bottomry, and
respondentia, marine insurance, and insurance against fire and of lives, are stated with all
possible brevity consistent with perspicuity, precision, and accuracy. The cases and
authorities are annexed to each proposition, and the adjudged cases are given at
large in some succeeding volumes as illustrations of the principles declared. I do not
know of a more convenient and useful manual of the kind to the student and practis-
ing lawyer. Though the principles of the Scotch law are drawn from the civil law,
yet they agree in most of the material points with the doctrines and adjudications in
the English and American law. Mr. More, the learned editor of the last edition of
Lord Stair's Institutions of the Law of Scotland, 1832, i., notes from A. to Q., has
likewise given a very full and correct view of the law of contracts, conjugal, domestic,
and commercial, in all their various incidents and relations, founded on judicial
decisions and the principles of the Roman law. The Treatise on the Law of Sale, by
M. P. Brown, Edin. 1821, has interwoven the principles of the English law of sale
with the same in Scotland (the main object of the treatise) with great utility and
practical convenience.
1 Fire Insurance.— (a) Insurable Interest.
The general principle with regard to
insurable interest has been stated ante,
276, and n. 1. See 261, and n. (e).
Eastern R.R. Co. v. Relief Fire Ins. Co.,
98 Mass. 420, 423. A mechanic's lien is
insurable. Franklin F. Ins. Co. v. Coates,
14 Md. 285; Carter v. Humboldt F. Ins.
Co., 12 Iowa, 287; Stout v. City Fire Ins.
Co., ib. 371. A shareholder in the Atlan-
tic Telegraph Company had an insurable
interest in the adventure of laying the
cable, although not in the cable. Wilson
v. Jones, L. R. 2 Ex. 139. It has been
[494]
LECT. L.]
* 376
OF PERSONAL PROPERTY.
laid down, less accurately, that a member
of a corporation has an insurable interest
in the corporate property. Warren v.
Davenport F. Ins. Co., 31 Iowa, 464.
In states where wagers, or such bene-
ficial wagers, are not illegal, the tendency
of modern cases is to allow any person
intrusted with goods to insure them to
their full value without orders from the
owner, and even without informing him
that he has taken out a policy. In case of
a total loss the insured will be entitled to
recover the value of the whole, and to
apply the proceeds in the first place to
cover his own interest, and will be trus-
tee for the owners as to the rest. Waters
v. Monarch F. & L. Ass. Co., 5 El. & Bl.
870, 881; London & N. W. R. Co. v. Glyn,
1 El. & El. 652; Martineau v. Kitching,
L. R. 7 Q. B. 436, 457; Stillwell v. Staples,
19 N. Y. 401; Savage v. Corn Exchange
F. & I. Ins. Co., 36 N. Y. 655, 657; Siter
v. Morrs, 13 Penn. St. 218; Goodall v.
New Eng. M. F. Ins. Co., 5 Fost. (25 N.
H.) 169; Ætna Ins. Co. v. Jackson, 16 B.
Mon. 242. See North British & M. Ins.
Co. v. Moffatt, L. R. 7 C. P. 25, 31; Sea-
grave v. Union M. Ins. Co., L. R. 1 C. P.
305, 319; Shaw v. Etna Ins. Co., 49
Mo. 578; 261, n. (c), 271, 276, 371,
372. But to constitute interest insurable
against a peril, it must be such that the
peril would, by its proximate effect, cause
damage to the assured. A mere agent,
without possession or lien, does not acquire
an insurable interest to the extent of the
value of the goods, simply because his
name appears in the bill of lading instead
of that of his principal. Seagrave v. Union
Marine Ins. Co., L. R. 1 C. P. 305. See
Sawyer v. Mayhew, 51 Me. 398. But see
North British & M. Ins. Co. v. Moffatt, L.
R. 7 C. P. 25, 31.
Although some of the cases speak of
the owner's ratifying the insurance, it
would seem clear that when a bailee in-
sures in his own name only, and not on
behalf of the owners, he is the only per-
son who can maintain an action on the
policy, and that the owner can only look
to the bailee as having in his hands money
proceeding from or substituted for the
goods, ante, 258, and n. (d), 19 N. Y. 407,
and so it has been held. Bank of South
Carolina v. Bicknell, 1 Clifford, 85. See
Martineau v. Kitching, L. R. 7 Q. B. 436,
458, 460. But see Goodall v. N. E. Ins.
Co., sup. On this principle it would seem
that the rule of apportionment just laid
down is the correct one. See L. R. 7 Q.
B. 460; Dalgleish v. Buchanan, 16 Ct. of
Sess. 2d ser. 332. But a different one
seems to have been applied in Siter v.
Morrs, sup.
(b) Effect of permitted Assignment of
Subject Matter. — It is said that a transfer
of the legal title to a vessel does not ex-
tinguish a right to recover on the policy,
if the insured still retains any right of
interest in the vessel or her proceeds.
Worthington v. Bearse, 12 Allen, 382, 384.
So a vendor who has contracted to sell,
and has received part of the purchase
money, but who has not yet parted with
the title, can recover the whole amount
insured, for his own benefit, if the loss
authorizes the purchaser to rescind; Bos-
ton & Salem Ins. Co. v. Royal Ins. Co., 12
Allen, 381; or in trust for the purchaser
as to the surplus if the contract is not
avoided. Insurance Co. v. Updegraff, 21
Penn. St. 513. But in the latter case it
has been held that the vendor could only
recover to the extent of the purchase
money remaining unpaid. Shotwell v.
Jefferson Ins. Co., 5 Bosw. 247, 267. Even
when the insured parts with his whole in-
terest he does not thereby avoid the policy,
in the absence of a condition against
alienation, but only makes it inoperative,
so that if the subject matter is afterwards
destroyed, he cannot recover, because he
has suffered no loss; accordingly, if he
repurchases it during the term and before
loss, his interest revives, and the inter-
mediate transfer becomes immaterial.
Worthington v. Bearse, 12 Allen, 382.
Perhaps on this ground, among the con-
[ 495 ]
* 376
[PART V.
OF PERSONAL PROPERTY.
flicting decisions as to the effect of aliena-
tion by one of two insured partners to the
other, mentioned below, the most satis-
factory is Hobbs v. Memphis Ins. Co., 1
Sneed, 444, where there was no breach
of condition, and the only question was as
to interest. It was held that an action
could be maintained in the names of both,
recovery being limited to the value of the
unassigned share. If the contract is joint,
both parties must join in the action; Tate
v. Cit. Mut. Ins. Co., 13 Gray, 79; and if
it had been avoided as to one, there could
be no recovery; but it was not avoided,
although one of the plaintiffs had suffered
no damage.
A transfer of the subject matter in-
sured does not of itself give the assignee
any claim to or under the policy, whether
the transfer be by voluntary act inter vivos;
Wilson v. Hill, 3 Met. 66; Hobbs v. Mem-
phis Ins. Co., 1 Sneed, 444; King v. Pres-
ton, 11 La. An. 95; by death; Wyman v.
Prosser, 36 Barb. 368; or by sale on
execution. Plimpton v. Farmers' Mut.
Ins. Co., 43 Vt. 497.
(c) Mortgaged Premises. - As between
the mortgagee and mortgagor, payment
by the insurers to the former does not affect
the liability of the latter. The mortgagee
is not in such a fiduciary relation to the
mortgagor that what he does as such must
enure to the benefit of the mortgagor,
subject to the payment of the mortgage
money. White v. Brown, 2 Cush. 412;
Cushing v. Thompson, 34 Me. 496; Dob-
son v. Laud, 8 Hare, 216. (But when the
mortgagee does not insure himself, but
takes an assignment of the mortgagor's
policy, see Barnes v. Union M. F. Ins. Co.,
45 N. H. 21, 26.) Conversely the mortgagee
cannot, in the absence of agreement to
that effect, charge the mortgagor with the
premiums which he has paid to insure the
property against fire. Dobson v. Laud, 8
Hare, 216; Bellamy v. Brickenden, 2 J. &
H. 137; Brooke v. Stone, 34 L. J. N. s.
Ch. 251. So the mortgagee has not
merely as such any interest in a policy
effected by the mortgagor. Nichols v.
Baxter, 5 R. I. 491; Plimpton v. Farmers'
Mut. Ins. Co., 43 Vt. 497, 499.
It is often the case that the mortgagor
takes out a policy in his own name, pay-
able in case of loss to the mortgagee.
This is a contract with the mortgagor,
which is subject to any equities against
him, and on which he is the proper per-
son to sue, unless the common law rules
have been changed by statute. It is his
interest, and not the mortgagee's, which is
insured, and an alienation by him will
defeat a recovery. Grosvenor v. Atlan-
tic Fire Ins. Co., 17 N. Y. 391; Springfield
F. & M. Ins. Co. v. Allen, 43 N. Y. 389,
394, 397. See below in this note, (h). He
has even been treated as the assured, after
payment of the mortgage debt, when the
policy was taken out in the name of the
mortgagee. Norwich F. Ins. Co. v. Boomer,
52 Ill. 442; See 369, n. 1, (a) ad finem. But
the mortgagor's contract to insure for the
benefit of the mortgagee gives the latter
an equitable lien on the proceeds of poli-
cies issued to the former. 376, n. (d);
Nichols v. Baxter, 5 R. I. 491. See 43 N
Y. 389, 393.
The right of the insurer to be subrogated
to the claim against the mortgagor to the
extent of the payment upon the policy is
sustained by the language of many cases.
Springfield Ins. Co. v. Allen, 43 N. Y. 389,
393; Kernochan v. New York Bowery F.
Ins. Co., 17 N. Y. 428, 441; Insurance
Co. v. Woodruff, 2 Dutcher, 541, 551;
Smith v. Columbia Ins. Co., 17 Penn. St.
253, 260; 21 id. 521; Rex v. Ins. Co., 2
Phila. 357; Honore v. Lamar F. Ins. Co.,
51 Ill. 409, 414; Norwich F. Ins. Co. v.
Boomer, 52 Ill. 442, 447; 371, n. (e). The
Massachusetts courts have held a different
doctrine. King v. State Mut. F. Ins. Co., 7
Cush. 1; Suffolk Fire Ins. Co. v. Boyden,
9 Allen, 123.
(d) Warranty. - Words of description
have been thought to contain a warranty
that the assured would not voluntarily do
any thing to make the condition of the
[ 496 ]
LECT. L.]
* 376
OF PERSONAL PROPERTY.
building described vary from the descrip-
tion so as thereby to increase the risk of
the underwriter. Sillem v. Thornton, 3
El. & Bl. 868, 882. And see, as to answers
in the present tense to questions in an
application which is part of the contract,
Williams v. N. E. Mut. F. Ins. Co., 31 Me.
219; Houghton v. Manuf. Mut. Ins. Co.,
8 Met. 114, 122; Jones Manuf. Co. v.
Manuf. M. Ins. Co., 8 Cush. 82; Crocker
v. People's M. Ins. Co., ib. 79. Policies
very generally contain a clause that any
change of circumstances increasing the
risk without the consent of the company
shall avoid the policy; and this may have
the effect to convert representations that
certain precautions are taken, into an
undertaking that they shall continue to
be taken substantially during the continu-
ance of the policy. Houghton v. Manuf.
Mut. Ins. Co., 8 Met. 114, 122; Jones
Manuf. Co. v. Manuf. M. Ins. Co., 8 Cush.
82; Crocker v. People's M. Ins. Co., ib.
79. But descriptive words are generally
construed as going only to the present
condition of things at the time the policy
is issued. Smith v. Mechanics' & Traders
Ins. Co., 32 N. Y. 399; Aurora Fire Ins.
Co. v. Eddy, 55 Ill. 213; Schmidt v. Peoria
Ins. Co., 41 Ill. 295; Blood v. Howard
Ins. Co., 12 Cush. 472, 474; May v. Buck-
eye Mut. Ins. Co., 25 Wis. 291, 306; Joyce
v. Maine Ins. Co., 45 Me. 168; Gilliat v.
Pawtucket M. Ins. Co., 8 R. I. 282. And
Sillem v. Thornton is not a decision as to
the effect of an alteration in the state of
the premises insured after the date of the
policy. Stokes v. Cox, 1 H. & N. 533,
536. See 282, n. 1, ad finem. As to par-
tial avoidance, see Koontz v. Hannibal
Ins. Co., 42 Mo. 126.
(e) Conditions of Avoidance. As to
what is double insurance, see 281, n. 1.
A policy conditioned as in the text, 374,
875, has been held not to be avoided by a
prior or subsequent one, which is itself
void ab initio. Clark v. New England Mut.
Ins. Co., 6 Cush. 342, 353; Hardy v. Union
Mut. Ins. Co., 4 Allen, 217; ante, 282, n.
VOL. III.
1, and cases infra. But it has been held
to be avoided by one which is only voida-
ble. Carpenter's case, 375, note (a); Bigler
v. N. Y. Ins. Co., inf.; cases which incline
to attribute a like effect to a void policy
on strong grounds. It may happen that a
prior policy is conditioned to be void if any
subsequent one be taken out without the
assent of the first insurers, and that then
a second is taken out without such assent,
conditioned to be void in case of any prior
policy existing. In such a case, as the
nonexistence of a prior policy is a con-
dition precedent to the existence of the
second, and as the prior policy does exist
until avoided by a second, it would seem
clear that the second has not even a mo-
mentary validity. The first is accordingly
held to remain binding. Gale v. Belknap
Ins. Co., 41 N. H. 170; Schenck v. Mercer
County Mut. Ins. Co., 4 Zabr. 447; Phil-
brook v. New England Mut. Ins. Co., 37
Me. 137, 145. But see Bigler v. New
York Central Ins. Co., 22 N. Y. 402.
Policies often contain a condition
against alienation of the property insured
without the assent of the insurers. It has
been stated that an agreement to sell does
not put an end to the insurable interest of
the vendor. See above in this note, (a),
& 375, n. (c). And it is equally clear that
such an agreement before the price is
paid or the title passed is not a breach of
the condition. Masters v. Madison County
Mut. Ins. Co., 11 Barb. 624; Shotwell v.
Jefferson Ins. Co., 5 Bosw. 247, 261. See
Orrell v. Hampden Ins. Co., 13 Gray, 431.
Neither is a mortgage of the property in-
sured. Conover v. Mut. Ins. Co. of
Albany, 1 Comst. 290; 3 Denio, 254;
Shepherd v. Union Mut. Ins. Co., 38 N.
H. 232; Hartford Ins. Co. v. Walsh, 54
Ill. 164; Smith v. Monmouth Mut. Ins.
Co., 50 Me. 96; Pollard v. Somerset Mut.
Ins. Co., 42 Me. 221. See Rice v. Tower,
1 Gray, 426; Edmands v. Mut. Safety F.
Ins. Co., 1 Allen, 311. A transfer of one
joint owner to his coöwner has been held
to be a breach of the condition, and to put
32
[497]
* 376
[PART V.
OF PERSONAL PROPERTY.
an end to the insurable interest of one of
the parties to the contract, and so to
make an action in their joint names not
sustainable. Finley v. Lycoming County
Mut. Ins. Co., 30 Penn. St. 311; Dreher
v. Ætna Ins. Co., 18 Mo. 128. At the
same time, if the contract is joint, an action
cannot be maintained in the name of the
sole owner. Tate v. Citizens' Mut. Ins.
Co., 13 Gray, 79. On the other hand, it
has been held that an action could be
maintained in the name of both, the re-
covery being limited to the value of the
unassigned share, in a case where there
was no breach of condition. Hobbs v.
Memphis Ins. Co., 1 Sneed, 444, discussed
above in (a) of this note. And the latest
decision under the New York statutes is
that a transfer of his interest by a retiring
partner to the others is not a breach of
the condition, which refers to alienation to
strangers to the contract, and that the
remaining partners could recover to the
full extent of the indemnity named in the
policy. Hoffman v. Ætna F. Ins. Co., 32
N. Y. 405; (vide ib. 408, 409; Buffalo
Steam Engine Works v. Sun Mut. Ins.
Co., 17 N. Y. 401, 409; Shotwell v. Jeffer-
son Ins. Co., 5 Bosw. 247, 259;) Pierce v.
Nashua F. Ins. Co., 50 N. H. 297. An
assignment in bankruptcy or insolvency
upon the assured owner's petition is an
alienation within the condition. Adams
v. Rockingham Mut. Ins. Co., 29 Me.
292; Young v. Eagle F. Ins. Co., 14 Gray,
150. It has been held otherwise in a case
where the creditors petitioned. Stark-
weather v. Cleveland Ins. Co., 2 Abb. U.
S. 67. Dying intestate is not. Burbank
v. Rockingham M. F. Ins. Co., 24 N. H.
(4 Fost.) 550; but compare Lappin v.
Charter Oak Ins. Co., 58 Barb. 325.
Other cases besides those at 375, to the
effect that the restriction upon assign-
ments of the policy applies only to
transfers before a loss, are Mellen v.
Hamilton F. Ins. Co., 17 N. Y. 609; Car-
roll v. Charter Oak Ins. Co., 38 Barb.
402; 40 Barb. 292; Carter v. Humboldt
F. Ins. Co., 12 Iowa, 287. And it has
been considered that an attempt to restrict
a transfer of the claim after loss would be
invalid. 38 Barb. 402; West Branch Ins.
Co v. Hellenstein, 40 Penn. St. 289. As
to pledge of policy, see (h) of this note.
A temporary and immaterial exposure
to the prohibited hazards, not resulting in
loss, was held not to avoid the policy in
Leggett v. Ætna Ins. Co., 10 Rich. (S. C.)
202; Harris v. Columbiana Ins. Co., 4
Ohio St. 285; Hynds v. Schenectady
County Mut. Ins. Co., 11 N. Y. (1 Kern.)
554; Williams v. N. E. Mut. F. Ins. Co.,
31 Me. 219. See Woodbury Savings
Bank v. Charter Oak Ins. Co., 31 Conn.
517, 526. But it was held otherwise in
Glen v. Lewis, 8 Exch. 607. The question
seems to be very much one of construc-
tion.
(f) Waiver. Conditions may be
waived by the insurers, and slight cir-
cumstances sometimes have that effect,
for instance, a refusal to pay on other
grounds, and failure to set up that after-
wards relied on. Taylor v. Merchants'
F. Ins. Co., 9 How. 390; Bodle v. Chenango
County M. Ins. Co., 2 Comst. 53; Kimball
v. Hamilton F. Ins. Co., 8 Bosw. 495;
Underhill v. Agawam Mut. F. Ins. Co., 6
Cush. 440, 445; Clark v. N. E. Mut. F.
Ins. Co., ib. 342, 345; Pettengill v. Hinks,
9 Gray, 169, 170; Bartlett v. Union Mut.
Ins. Co., 46 Me. 500; Firemen's Ins. Co.
v. Crandall, 33 Ala. 9; Francis v. Somer-
ville Mut. Ins. Co., 1 Dutch. 78 ; Rath-
bone v. City Fire Ins. Co., 31 Conn. 193;
Norwich & N. Y. T. Co. v. Western Mass.
Ins. Co., 34 Conn. 561, 570; Pierce v.
Nashua Fire Ins. Co., 50 N. H. 297.
The powers of agents to waive are
construed pretty liberally. Viele v. Ger-
mania Ins. Co., 26 Iowa, 9; Miner v.
Phoenix Ins. Co., 27 Wis. 693; compare
282, n. 1.
(g) The rule that only the proximate
cause of the loss is regarded applies to
fire as well as to marine insurance; ante,
302, n. 1; and it may be doubted whether
[498]
LECT. L.]
* 376
OF PERSONAL PROPERTY.
any negligence, even of the assured in
person, not amounting to proof of a
fraudulent intent to commit or permit an
injury within the policy, would prevent a
recovery. Huckins v. People's Mut. F.
Ins. Co., 31 N. H. (11 Fost.) 238, 248
(explaining Chandler v. Worcester Mut.
Ins. Co., 3 Cush. 328); Johnson v. Berk-
shire Mut. F. Ins. Co., 4 Allen, 388.
(h) Effect of permitted Assignment of
Policy. A deposit of a policy by way of
collateral security will give the bailee a
lien on the proceeds, without the necessity
of his having an interest in the subject
matter, and will not amount to a breach
of the condition against assignment. Bib-
end v. Liverpool & L. Ins. Co., 30 Cal. 78;
Ellis v. Kreutzinger, 27 Mo. 311.
After an assignment of the policy, the
same persons remain the legal parties to
the contract, and the same interest is in-
sured as before; and a subsequent breach
of condition by the assignor, or alienation
of his whole insurable interest, will defeat
the insurance. It is so held even where
an assignment of the policy for collateral
security is made by consent of the com-
pany. Buffalo Steam Engine Works v.
Sun Mut. Ins. Co., 17 N. Y. 401; State
Mut. F. Ins. Co. v. Roberts, 31 Penn. St.
438; Birdsey v. City F. Ins. Co., 26 Conn.
165; Illinois M. F. Ins. Co. v. Fix, 53 Ill.
151. See also the cases above in this
note on mortgaged premises. But see
Pollard v. Somerset Mut. Ins. Co., 42
Me. 221, and 45 N. H. 27, inf. So the
assignor remains the insured, and it is his
interest only that is covered, after an in-
dorsement, "in case of loss, pay the
amount to A. B.," assented to by the
insurers, even if the assignee be allowed
to sue in his own name, as he is in Mas-
sachusetts. Fogg v. Middlesex Mut. Ins.
Co., 10 Cush. 337, 346; Minturn v. Manu-
facturers' Ins. Co., 10 Gray, 501, 506;
Edes v. Hamilton Mut. Ins. Co., 3 Allen,
362; Bates v. Equitable Ins. Co., 10 Wall.
33, 38. See Pollard v. Somerset Ins. Co.,
42 Me. 221, 228; Barnes v. Union Ins. Co.,
45 N. H. 21, 27 (citing a case overruled
in 17 N. Y. 401, sup.); Pierce v. Nashua
Ins. Co., 50 N. H. 297. Compare Bayles
v. Hillsborough Ins. Co., 3 Dutch. 163.
But when what is called an assignment of
the policy is made in consideration of a
return of premium, at the same time with
a transfer of the subject matter insured,
and the insurers assent to the transaction,
and surrender the old deposit note and
receive a new one in place of it, there is
an entire change in the contract, party,
and interest insured, and a new insurance
with the assignee on his interest is sub-
stituted for that previously in force. Fogg
v. Middlesex Mut. Ins. Co., 10 Cush. 337,
346; Flanagan v. Camden Mut. Ins. Co.,
1 Dutcher, 506. There seems to have
been what amounted to a new insurance
in Miner v. Phoenix Ins. Co., 27 Wis. 693.
See also Foster v. Equitable Mut. Ins.
Co., 2 Gray, 216, explained 3 Allen, 363.
But see Lycoming Ins. Co. v. Mitchell, 48
Penn. St. 367.
A common
(i) Arbitration Clause.
condition is that in case of loss the claim
shall be submitted to arbitration, and the
distinction which seems to prevail is that
a promise to pay the sum which arbitrators
may award will prevent a cause of action
arising until the award, but a mere agree-
ment to refer will not bar an action.
Scott v. Avery, 5 H. L. C. 811; Roper v.
Lendon, 1 El. & El. 825; Elliot v. Royal
Exch. Ass. Co., L. R. 2 Ex. 237; Rowe
v. Williams, 97 Mass. 163; Smith v. B. C.
& M. R.R., 36 N. H. 458, 487; Hurst v.
Litchfield, 39 N. Y. 377; and many other
cases.
But see an article on Arbitration
Clauses, 3 Am. Law Rev. 249.
(k) Adjustment of Loss. The technical
rules of marine insurance, such as deduc-
tion of new for old, are not applied to in-
surances against fire; the rule is indem-
nity; Brinley v. National Ins. Co., 11
Met. 195; although the rule causa proxima
spectatur is applied in estimating the
amount for which the insurers are liable,
as well as in determining whether they
[ 499 ]
* 376
[PART V.
OF PERSONAL PROPERTY.
are liable at all. Supra, (g), in this note;
Hillier v. Alleghany County Mut. Ins.
Co., 3 (Barr) Penn. St. 470, commented
on by Case v. Hartford F. Ins. Co., 13 Ill.
676. If property insured at less than its
value is partly destroyed, the assured is
to be paid his whole loss, if it does not
exceed the amount insured. Trull v.
Roxbury Mut. F. Ins. Co., 3 Cush. 263,
267; Underhill v. Agawam Mut. F. Ins.
Co., 6 Cush. 440; Mississippi Mut. Ins.
Co. v. Ingram, 34 Miss. 215. When the
insurers reserve the option of rebuilding
in case of loss and elect to do so, this also
has been treated as no more than the
payment of a partial loss, leaving the
insurers liable to the extent of the residue
[500 ]
of the sum insured above the expense of
rebuilding in case of a second fire. Trull
v. Roxbury Mut. F. Ins. Co., 3 Cush. 263.
See Haskins v. Hamilton Mut. Ins. Co., 5
Gray, 432. But in New York the election
to rebuild has been said to convert the
policy into a building contract, and the
insurers' liability for a breach of it is held
not to be measured by the amount of in-
surance named in the policy. Morrell v.
Irving Fire Ins. Co., 33 N. Y. 429; Beals
v. Home Ins. Co., 36 N. Y. 522.
As to apportionment of double insur
ance, compare Haley v. Dorchester Mut.
Ins. Co., 12 Gray, 545; Ashland Mut.
Ins. Co. v. Honsinger, 10 Ohio. St. 10.
PART VI.
OF THE LAW CONCERNING REAL PROPERTY.
LECTURE LI.
OF THE FOUNDATION OF TITLE TO LAND.
IN passing from the subject of personal to that of real prop-
erty, the student will immediately perceive that the latter is gov-
erned by rules of a distinct and peculiar character. The law
concerning real property forms a technical and very artificial sys-
tem; and though it has felt the influence of the free and commer-
cial spirit of modern ages, it is still very much under the control
of principles derived from the feudal policy. We have either
never introduced into the jurisprudence of this country, or we
have, in the course of improvements upon our municipal law,
abolished all the essential badges of the law of feuds; but the
deep traces of that policy are visible in every part of the doctrine
of real estates, and the technical language, and many of the tech-
nical rules and fictions of that system, are still retained.
(1) Government Grants. It is a fundamental principle in
the English law, derived from the maxims of the feudal tenures,
that the king was the original proprietor, or lord paramount of
all the land in the kingdom, and the true and only source
of title. (a) In this country we have *adopted the
title.(a)
* 378
(a) 2 Bl. Comm. 51, 53, 59, 86, 105. Sir William Blackstone, in his chapter on
property in general, Comm. ii. c. 1 (and which, for clearness and accuracy, as well
as for the elegance of its style, remains unrivalled), considers prior occupancy to be
the foundation of title to property; and that when the occupant became unwilling or
incapable to continue his occupancy, the disposition of property by sale, by will, and
by the law of successions and inheritance, was dictated by mutual convenience, and
the peace and interests of civil society, and rests for its foundation on municipal law.
[501]
* 378
[PART VI
OF REAL PROPERTY.
same principle, and applied it to our republican govern-
ments; (a) and it is a settled and fundamental doctrine with us,
that all valid individual title to land within the United States is
derived from the grant of our own local governments, or from
that of the United States, or from the crown, or royal chartered
governments established here prior to the Revolution. This was
the doctrine declared in New York, in the case of Jackson v.
Ingraham, (b) and it was held to be a settled rule, that the courts.
Sir Francis Palgrave says, that the practical establishment of the theory that the
king was the original proprietor of all the lands in the kingdom, was to be attributed
to the constant working of the crown lawyers, who always presumed that the land
was held by feudal tenure, until the contrary could be shown. Rise and Progress of
the English Commonwealth, i. 584. The same principle of feudal tenure prevails in
Scotland. Bell's Prin. of the Law of Scotland, sec. 676. [This subject has received
new light from historical investigations since the author wrote. It will be found
discussed in a note to the next volume.]
(a) The Revised Constitution of New York, of 1846, declares that the people, in
their right of sovereignty, are deemed to possess the original and ultimate property
in and to all lands within the jurisdiction of the state; and that all lands, the title
to which fails from a defect of heirs, reverts or escheats to the people. Art. 1,
sec. 11.
(b) 4 Johns. 163; Jackson v. Waters, 12 id. 365, s. P. By the N. Y. Revised Stat-
utes, 3d ed. ii. p. 2, sec. 1, the people are declared to possess the original and ultimate
property in and to all lands within the jurisdiction of the state. It was declared by
statute in Connecticut, in 1718, that no title to lands was valid, unless derived from
the Governor and Company of the colony. Revised Statutes of Connecticut, 1784,
113. In the elaborately discussed case of De Armas v. Mayor, &c., of New Orleans, 5
La. 132, it was admitted to have been uniformly the practice of all the European
nations having colonial establishments and dominion in America, to consider the
unappropriated lands occupied by savage tribes, and obtained from them by conquest
or purchase, to be crown lands, and capable of a valid alienation, by sale or gift by
the sovereign, and by him only. No valid title could be acquired without letters
patent from the king. See ib. 188, 195-197, 206, 213, 216. But it is said that purchases
made at Indian treaties, under the competent sanction of the government of the United
States, vest a valid title in the purchaser, without any patent. Baldwin, J., in
Mitchell v. United States, 9 Peters, 748, 756, 757. This opinion is, however, so con-
trary to the previous authorities on the subject, that I should apprehend it would be
proper for further consideration. The law, however, seems to be considered as settled,
that purchases made at Indian treaties, with the approbation of the government agent,
carry a valid title without the necessity of a patent from the United States. Cole-
man v. Doe, 4 Smedes & M. 40.
In the English law it has always been considered a fundamental principle, that the
king, by his prerogative, was entitled to all mines of gold and silver, whether in lands
belonging to the crown or to a subject. Lord Coke says that the king has no such
right, by virtue of his prerogative, in any other metals than gold and silver, for those
metals alone are requisite for the coining of money for the use of his subjects. 2 Inst.
577, 578. In the great Case of Mines, in the Exchequer (Plowd. 310, 336), it was
resolved, by a majority of the twelve judges, that if the mine, in the lands of a sub-
[ 502 ]
LECT. LI.]
* 378
OF REAL PROPERTY.
could not take notice of any title to land not derived from our
own state or colonial government, and duly verified by patent.
This was also a fundamental principle in the colonial jurispru-
dence. All titles to land passed to individuals from the crown,
ject, was of copper, tin, lead, or iron, and had gold or silver intermixed, though of
less value than the baser metals, the whole mine belonged to the crown, because the
nobler metal attracted to it the less valuable, and the king could not hold jointly with
the subject, and consequently he took the whole. The minority of the judges, and
Plowden himself, dissented from this severe and unreasonable doctrine, and it was
corrected by the statutes of 1 Wm. & Mary, c. 30, and 5 Wm. & Mary, c. 6, which
declared that no mine of copper, tin, lead, or iron should be adjudged a royal mine,
though gold or silver might be extracted from it; but the crown was allowed to take
the proceeds of the mine in such cases, provided that the king paid the owner within
thirty days after the ore should have been extracted and raised, at certain specified
rates.
The statute law of New York has asserted the right of the state, as sovereign over
mines, to the extent of the English statutes, and with more definite limits. The pro-
vision in the N. Y. R. S. 3d ed. i. 322, is, that all mines of gold and silver discovered
or hereafter to be discovered in this state, belong to the people in their right of sover-
eignty; and also all mines of other metals on lands owned by persons not citizens of
any of the United States; and also all mines of other metals discovered on lands
owned by a citizen of any of the United States, the ore of which, upon an average,
shall contain less than two equal third parts in value of copper, tin, iron, and lead, or
any of those metals; also, all mines and all minerals and fossils discovered upon lands
belonging to the people of the state, shall be the property of the people. But all
mines, of whatever description, other than mines of gold and silver, discovered upon
any lands owned by a citizen of any of the United States, the ore of which, upon an
average, shall contain two equal third parts or more in value of copper, tin, iron, and
lead, or any of those metals, shall belong to the owner of such land. N. Y. R. S. 3d ed.
i. 322. The statute contains some qualifications in favor of the discoverer of mines.
What is the law of the other states on the subject of royal mines, I am not able to
say, though it is to be presumed that the exception of mines of gold and silver is the
usual formula in all government patents and grants by the United States, as well as
by the several states.
Mr. Justice Clayton of Georgia, in the case of The State of Georgia v. Canatoo, a
Cherokee Indian, brought up on habeas corpus (reported in the National Intelligencer
of October 24, 1843), held, that the right and title to land included a right to all the
mines and minerals therein, unless they were separated from the lands by positive
grant or exception; and that if the state made a grant of public lands to an individual,
without any exception of mines and minerals, the mines and minerals would pass to
the grantee as part and parcel of the land; and that the Cherokee Indians had a right
to dig and take away gold and silver from the lands in their reserves, or lands not
ceded to the state, and were not amenable in trespass for so doing, inasmuch as they
had as good a right to the use of the mines and minerals as to the use of the land and
its products in any other respect: that they were lawful occupants, not chargeable
with waste; for the right of the state was a right of preemption only, and never con-
sidered otherwise by the government of Great Britain, when it claimed and exercised
dominion over this country, nor by our own government, which succeeded to the
British powers.
[503]
* 379
[PART VI.
OF REAL PROPERTY.
through the colonial corporations, and the colonial or proprietary
authorities. (c) Even with respect to the Indian reservation
lands, of which they still retain the occupancy, the validity of a
patent has not hitherto been permitted to be drawn in question
in a suit between citizens of the state, under the pretext that the
Indian right and title, as original lords of the soil, had not been
extinguished. (d) It was also declared, in Fletcher v. Peck, (e)
to be the opinion of the Supreme Court of the United States,
that the nature of the Indian title to lands lying within the
territorial limits of a state, though entitled to be respected by
all courts until it be legitimately extinguished, was not such
as to be absolutely repugnant to a seisin in fee on the part
of the government within whose jurisdiction the lands are situ-
ated. (f)
* 379
* (2) Title by Discovery. - The history and grounds of
the claims of the European governments and of the United
States to the lands on this continent, and to dominion over
the Indian tribes, have been since more largely and fully con-
sidered. In discussing the rights and consequences attached by
the international law of Europe to prior discovery, it was stated
in Johnson v. M'Intosh, (a) as an historical fact, that on the
discovery of this continent by the nations of Europe, the dis-
covery was considered to have given to the government by whose
(c) Dr. Arnold, in his History of Rome, i. 267-270, considers it to have been a
general principle in the ancient states of Greece and Italy, that all property in land
was derived from the government by allotment to individuals in absolute right. Con-
quered lands were won for the state, and not for individuals. That portion which
was assigned to individuals they took absolutely, but the great mass of the lands was
left as the demesne of the state, and the occupiers of it held only by a precarious
tenure.
(d) Jackson v. Hudson, 3 Johns. 375. It is judicially settled in Kentucky and
Ohio, and in the Supreme Court of the United States, that a patent for land conveys
the legal title, but leaves all equities open; and the courts go behind the patent for
lands, and examine the equity of the title. Brush v. Ware, 15 Peters, 93.
(e) 6 Cranch, 87.
(f) This was the language of a majority of the court in the case of Fletcher v.
Peck. It was a mere naked declaration, without any discussion or reasoning by the
court in support of it; but Judge Johnson, in the separate opinion which he delivered,
did not concur in the doctrine. He held that the Indian nations were absolute pro-
prietors of the soil, and that practically, and in cases unaffected by particular treaties,
the restrictions upon the right of soil in the Indians amounted only to an exclusion of
all competitors from the market, and a preëmptive right to acquire a fee simple by
purchase when the proprietors should be pleased to sell.
(a) 8 Wheaton, 543.
[ 504]
LECT. LI.]
* 380
OF REAL PROPERTY.
subjects or authority it was made a title to the country, and the
sole right of acquiring the soil from the natives, as against all
other European powers. Each nation claimed the right to reg-
ulate for itself, in exclusion of all others, the relation which was
to subsist between the discoverer and the Indians. That relation
necessarily impaired, to a considerable degree, the rights of the
original inhabitants, and an ascendency was asserted in con-
sequence of the superior genius of the Europeans, founded on
civilization and Christianity, and of their superiority in the means
and in the art of war. The European nations which respectively
established colonies in America, assumed the ultimate dominion to
be in themselves, and claimed the exclusive right to grant a title
to the soil, subject only to the Indian right of occupancy. The
natives were admitted to be the rightful occupants of the soil,
with a legal as well as just claim to retain possession of it and
to use it according to their own discretion, though not to dispose
of the soil at their own will, except to the government claiming
the right of preemption. The practice of Spain, (b)
France, Holland, and England, * proved the very general
recognition of the claim and title to American territories
given by discovery. The United States adopted the same princi-
ple, and their exclusive right to extinguish the Indian title by
purchase or conquest, and to grant the soil, and exercise such a
degree of sovereignty as circumstances required, has never been
judicially questioned. (a) The rights of the British government
* 380
(b) By the laws of Spain, particular portions of the soil of Louisiana were allotted
to the Indians, and care was taken to make the acquisitions valuable, by preventing
the intrusion of white settlers. The Laws of the Indies directed, that when the Indians
gave up their lands to the whites, others should be assigned to them; and the lands
allotted to the Indian tribes by the Spanish officers, in pursuance of the laws of the
Indies, were given to them in complete ownership, equally as if they were held under
a complete grant. But as the Indians were considered in a state of pupilage, the
authority of the public officers, who were constituted their guardians, was necessary
to a valid alienation of their property. Recop. de las Indias, cited by Porter, J., in
18 Martin, 357-359, who speaks most liberally of the humane policy and justice of
the Spanish laws in relation to the Indian tribes. See also translations from the
Recopilacion de Leyes de las Indias, in White's new Recopilacion, ii. 34, 41, 59, 95,
which show the anxious and paternal care with which the Spanish laws guarded the
Indians from abuse and fraud.
(a) As early as 1782, the American Minister, Mr. Jay, told the Spanish Minister,
Count d'Aranda, that our right to the territories of the Indian nations comprehended
within the colonial chartered limits was a question to be discussed and settled between
us and the Indians; that we claim the right of preëmption with respect to them, and
the sovereignty with respect to all other nations. Life and Writings of John Jay,
[ 505 ]
381
[PART VI.
OF REAL PROPERTY.
within the limits of the British colonies passed to the United
States by the force and effect of the act of independence; and
the uniform assertion of those rights by the crown, by the colonial
governments, by the individual states, and by the Union, is, no
doubt, incompatible with an absolute title in the Indians. That
title has been obliged to yield to the combined influence which
military, intellectual, and moral power gave to the claim of the
European emigrants. (b)
(3) Qualified Indian Rights - This assumed but qualified
dominion over the Indian tribes, regarding them as enjoying no
higher title to the soil than that founded on simple occupancy,
and to be incompetent to transfer their title to any other power
than the government which claims the jurisdiction of their ter-
ritory by right of discovery, arose, in a great degree, from the
necessity of the case. To leave the Indians in possession of the
country, was to leave the country a wilderness; and to govern
them as a distinct people, or to mix with them, and admit them
to an intercommunity of privileges, was impossible under the
circumstances of their relative condition. The peculiar character
and habits of the Indian nations rendered them incapable
*381 *of sustaining any other relation with the whites than that
of dependence and pupilage. There was no other way of
dealing with them than that of keeping them separate, subordi-
nate, and dependent, with a guardian care thrown around them
ii. 474. The Indians in the Northwest Territory of the United States did not concur
in any such logic, for the delegates of the confederate nations who met in council the
American commissioners at Sandusky, in 1793, to attempt the negotiation of a peace,
declared that they had never yielded to or agreed with the King of England or the
United States to surrender any exclusive right of preëmption, and that they consider
themselves free to make any bargain or cession of lands whenever and to whomsoever
they pleased.
L
(b) The right of discovery was not recognized in the Roman law. It is an imper-
fect title unless followed by occupation, and unless the intention of the sovereign or
state to take possession be declared or made known to the world. Vattel, b. 1. c. 18,
sec. 207, 208; Martens's Precis. 37; Klüber, Droit des Gens Modernes de l'Europe,.
sec. 126. This is the language of the modern diplomatists and publicists, on the part
of England, Spain, Russia, and the United States. Mere transient discovery amounts
to nothing, unless followed in a reasonable time by occupation and settlement, more
or less permanent, under the sauction of the state. In the disputes and discussions
between the British government and Spain, in 1790, relative to Nootka Sound, on the
northwest coast of America, the former claimed as an indisputable right the possession
of such establishments as they should form, with the consent of the natives of the
country, not previously occupied by any of the European nations. See Greenhow's
History of Oregon and California, 4th ed. 204.
[ 506 ]
LECT. LI.]
* 382
OF REAL PROPERTY.
for their protection. (a) The rule that the Indian title was subor-
dinate to the absolute, ultimate title of the government of the
European colonists, and that the Indians were to be considered as
occupants, and entitled to protection in peace in that character
only, and incapable of transferring their right to others, was the
best one that could be adopted with safety. The weak and help-
less condition in which we found the Indians, and the immeasur-
able superiority of their civilized neighbors, would not admit of
the application of any more liberal and equal doctrine to the case
of Indian lands and contracts. It was founded on the pretension
of converting the discovery of the country into a conquest; and
it is now too late to draw into discussion the validity of that pre-
tension, or the restriction which it imposes. It is established by
numerous compacts, treaties, laws, and ordinances, and founded
on immemorial usage. The country has been colonized and
settled, and is now held by that title. It is the law of the land,
and no court of justice can permit the right to be disturbed by
speculative reasonings on abstract rights.
This is the view of the subject which was taken by the Supreme
Court, in the elaborate opinion to which I have referred. The
same court has since been repeatedly called upon to discuss and
decide great questions concerning Indian rights and title; and
the subject has of late become exceedingly grave and momentous,
affecting the faith and character, if not the tranquillity and safety,
of the government of the United States.
*
In the case of Cherokee Nation v. State of Georgia, (b) it was
held by a majority of the court, that the Cherokee nation
of Indians, dwelling within the jurisdictional limits of the * 382
United States, was not a foreign state in the sense in which
the term is used in the Constitution, nor entitled as such to
proceed in that court against the state of Georgia. But it was
admitted that the Cherokees were a state, or distinct political
society, capable of managing its own affairs, and governing itself,
and that they had uniformly been treated as such since the settle-
ment of our country. The numerous treaties made with them by
the United States recognize them as a people capable of maintain-
(a) It was shown in the case of Mitchel v. United States, 9 Peters, 740, that it was
part of the governor's oath in the Spanish colonies, as prescribed by the laws of the
Indies, that he should take care of the welfare, increase, and prote' ion of the Indians.
(b) January Term, 1831, 5 Peters, 1.
[ 507 ]
* 383
[PART VI.
OF REAL PROPERTY.
ing the relations of peace and war, and responsible in their political
capacity. Their relation to the United States was nevertheless
peculiar. They were domestic dependent nations, and their
relation to us resembled that of a ward to his guardian; and they
had an unquestionable right to the lands they occupied, until that
right should be extinguished by a voluntary cession to our gov-
ernment. The subject was again brought forward, and the great
points which it involved reasoned upon and judicially determined,
in the case of Worcester v. State of Georgia, (a) which was another
case arising out of the operation of the laws of Georgia.
The legislature of that state, in the years 1828, 1829, and 1830,
passed several penal statutes in reference to the Cherokee nation
and territory. The purpose and effect of those laws was, to
demolish the Cherokee government and institutions, and annihi-
late their political existence as a nation, and to divide their
territory among the adjoining counties in Georgia, and extend
the civil and criminal law of the state over the Indian territory.
Those laws dealt with them as if they were alike destitute of
civil and political privileges, and were mere tenants at sufferance,
without any interest in the soil on which they dwelt, and which
had been uninterruptedly claimed and enjoyed by them and their
ancestors as a nation from time immemorial. Their lands had
been guaranteed to them as a nation, and the protection of the
United States pledged to them in their national capacity; and
their existence, competence, and rights, as a distinct
*383 political * society, recognized, by treaties made with them
in the years 1785, 1791, 1798, 1805, 1806, 1816, 1817, and
1819, by the government of the United States, under all the
forms and solemnities of treaty compacts. The statutes of Georgia,
nevertheless, prohibited the Cherokees, under highly penal sanc-
tions, from the exercise within the territory they so occupied, of
any political power whatever, legislative, executive, or judicial.
They were declared not to be competent witnesses in any court
of the state to which a white person might be a party, unless
such white persons resided in the Cherokee nation; and they
were also declared to be incompetent to contract with any white
person. Their territory was divided into sections, and directed
to be surveyed and subdivided into districts, and disposed of by
(a) 6 Peters, 515. [This was the view taken in a report on the effect of the XIV.
Amendment referred to in a note to lect. xxv 1
[ 508 ]
LECT. LI.]
* 383
OF REAL PROPERTY.
lottery among the citizens of Georgia. Their gold mines were
taken possession of by force, and the use of them by the Indians
prohibited. They were, however, declared to be protected in
the possession of their improvements, until the legislature should
enact to the contrary, or the Indians should voluntarily abandon
them. (a)
The Supreme Court of the United States, in the case of Worces-
ter, reviewed the whole ground of controversy, relative to the
character and validity of Indian rights within the territorial
dominions of the United States, and especially in reference to
the Cherokee nation, within the territorial limits of Georgia.
They declared that the right given by European discovery was
the exclusive right to purchase, but this right was not founded
(a) In the session of 1831-32, the legislature of Alabama also extended the civil
and criminal jurisdiction of that state over all the Indian territory within its limits,
and dealt with the Indians (Creeks and Cherokees) as being under the absolute con-
trol of the state. So, also, in the session of 1833, the legislature of Tennessee extended
the laws and jurisdiction of the state over the tract of country within the boundary
limits of the state in the occupancy of the Cherokees. But the extension, though in
violation of the treaties existing between the United States and the Cherokees, was
made with mild and reasonable qualifications, in respect to the Cherokees, compared
with similar acts in some other states. It secured them in the enjoyment of their
improvements and personal property, and allowed them to enjoy their native usages,
and prevented entry upon, or occupancy of, any of the lands in their territory, by
white men, and exempted the Cherokee Indians from any criminal jurisdiction, under
the act for offences committed by them within their territory, except for murder,
rape, and larceny. It was in the spirit of the act of the legislature of New York, of
12th of April, 1822, asserting exclusive criminal jurisdiction over all crimes and
offences committed within the Indian reservations in the state, by and between
Indians. The Tennessee act was founded on the necessity of the case, owing to the
very reduced population of the Cherokees within the state of Tennessee, and the too
great imbecility of their organization and authority to preserve order, and protect
themselves from atrocious crimes. The criminal jurisdiction of New York was vindi-
cated on that ground in Goodell v. Jackson, 20 Johns. 716; and on the same ground
the act of Tennessee was vindicated in their Supreme Court, in the case of The State
v. Foreman, a Cherokee Indian, [July,] 1835. 8 Yerg. 256. But even that decision,
ably as it was supported, was resisted with equal ability by Judge Peck, one of the
members of the court, on the ground of subsisting treaties between the United States
and the Cherokees, recognizing their national and self-governing authority, and which
treaties did not exist in the case in New York. In Wall v. Williamson, 8 Ala. 48, it
was adjudged that a marriage between two Indians belonging to the Choctaw tribe,
and entered into according to the laws and customs of the tribe at the place where it
took place, was valid, even though the laws of Alabama had been extended over that
Indian territory. The laws and customs of the Choctaws were not in fact abrogated
by the extension of the Alabama jurisdiction, so far as the members of the tribe were
affected; and as by Choctaw law the husband may at pleasure dissolve the marriage
tie, the dissolution as between the Indians is recognized in Alabama as valid.
[ 509 ]
* 384
[PART VI.
OF REAL PROPERTY.
on a denial of the right of the Indian possessor to sell. Though
the right to the soil was claimed to be in the European govern-
ments as a necessary consequence of the right of discovery and
assumption of territorial jurisdiction, yet that right was only
deemed such in reference to the whites; and in respect to the
Indians, it was always understood to amount only to the exclu-
sive right of purchasing such lands as the natives were willing to
sell. The royal grants and charters asserted a title to the country
against Europeans only, and they were considered as blank
*384 *paper, so far as the rights of the natives were concerned.
The English, the French, and the Spaniards were equal
competitors for the friendship and the aid of the Indian nations.
The crown of England never attempted to interfere with the
national affairs of the Indians, further than to keep out the agents
of foreign powers, who might seduce them into foreign alliances.
The English government purchased the alliance and dependence
of the Indian nations by subsidies, and purchased their lands
when they were willing to sell, at a price they were willing to
take, but they never coerced a surrender of them. The English
crown considered them as nations competent to maintain the
relations of peace and war, and of governing themselves under
her protection. The United States, who succeeded to the rights
of the British crown in respect to the Indians, did the same, and
no more; and the protection stipulated to be afforded to the
'Indians, and claimed by them, was understood by all parties as
only binding the Indians to the United States as dependent allies.
A weak power does not surrender its independence and right to
self-government, by associating with a stronger, and receiving its
protection. This is the settled doctrine of the law of nations;
and the court concluded and adjudged that the Cherokee nation
was a distinct community, occupying its own territory, with
boundaries accurately described, in which the laws of Georgia
could not rightfully have any force, and into which the citizens
of Georgia had no right to enter but with the assent of the
Cherokees themselves, or in conformity with treaties, and with
the acts of Congress. The court accordingly considered the acts
of Georgia which have been mentioned, to be repugnant to the
Constitution, treaties, and laws of the United States, and conse-
quently that they were, in judgment of law, null and void.
The decision of the Supreme Court of the United States was
[510]
LECT. LI.]
*385
OF REAL PROPERTY.
not the promulgation of any new doctrine; for the several
local governments, before and since our Revolution, never re-
garded the Indian nations within their territorial domains
*as subjects, or members of the body politic, and amenable *385
individually to their jurisdiction. They treated the Indians
within their respective territories as free and independent tribes,
governed by their own laws and usages, under their own chiefs,
and competent to act in a national character, and exercise self-
government, and while residing within their own territories, owing
no allegiance to the municipal laws of the whites. The judicial
decisions in New York and Tennessee, in 1810 and 1823, corre-
spond with those more recently pronounced in the Supreme
Court of the Union, and they explicitly recognized this histori-
cal fact and declared this doctrine. (a) The original Indian
nations were regarded and dealt with as proprietors of the soil
which they claimed and occupied, but without the power of
alienation, except to the governments which protected them, and
had thrown over them and beyond them their assumed patented
domains. These governments asserted and enforced the exclu-
sive right to extinguish Indian titles to lands, enclosed within the
exterior lines of their jurisdictions, by fair purchase, under the
sanction of treaties; and they held all individual purchases from
the Indians, whether made with them individually or collectively
as tribes, to be absolutely null and void. The only power that
could lawfully acquire the Indian title was the state, and a gov-
ernment grant was the only lawful source of title admitted in the
courts of justice. The colonial and state governments, and the
government of the United States, uniformly dealt upon these
(a) Jackson v. Wood, 7 Johns. 295; Goodell v. Jackson, 20 id. 693; Holland v.
Pack, Peck (Tenn.), 151. In 1830, the Supreme Court of Tennessee stated, that the
act of North Carolina of 1783 (and which was part of the statute law of Tennessee),
admitted that the Cherokees were an independent people, and not citizens of that
state; that they were governed by their own laws, and not subject to the legislature
of North Carolina. The court declared that grants from that state of Indian lands
were valid as between the state and grantees, but that they were subject to the Indian
right and title of exclusive occupancy and enjoyment. Blair v. The Pathkiller, 2
Yerg. 407. The legislature of New York, so late as 1813, by statute, authorized the
governor "to hold a treaty or treaties on the part of the people of this state with the Oneida
nation of Indians, or any other of the Indian nations or tribes within this state, for the purpose
of extinguishing their claim to such part of their lands lying within this state as he
might deem proper, for such sums and annuities as might be mutually agreed upon
by the parties." Laws of New York, 36th sess. c. 130.
[ 511 ]
* 386
[PART VI.
OF REAL PROPERTY.
*386 principles with the Indian nations dwelling * within their
territorial limits. The Indian tribes placed themselves
under the protection of the whites, and they were cherished as
dependent allies, but subject to such restraints and qualified
control in their national capacity as was considered by the whites
to be indispensable to their own safety, and requisite to the due
discharge of the duty of that protection. (a)
(4) Right of Colonization. There has been considerable
diversity of opinion and much ingenious speculation, on the claim
of right to this country by the Europeans, founded on the title
by discovery. We have seen that with respect to the English
colonists in America, the claim was modified, and much of its
extravagance destroyed, by conceding to the native tribes their
political rights and privileges, as dependent allies, and their qual-
ified title to the soil. As far as Indian rights and territories were
defined and acknowledged by the whites by treaty, there was no
question in the case, for the whites were bound by the moral and
national obligations of contract and good faith; and as far as
Indian nations had formed themselves into regular organized
governments, within reasonable and definite limits necessary for
the hunter state, there would seem also to be no ground to deny
the absolute nature of their territorial and political rights. But
beyond these points our colonial ancestors were not willing to go.
They seem to have deemed it to be unreasonable, and a perversion
of the duties and design of the human race, to bar the Europeans,
with their implements of husbandry and the arts, with their laws,
their learning, their liberty, and their religion, from all entrance
into this mighty continent, lest they might trespass upon some
(a) In Mitchel v. United States, 9 Peters, 711, 745, 746, the Supreme Court once
more declared the same general doctrine, that lands in possession of friendly Indians
were always, under the colonial governments, considered as being owned by the tribe
or nation, as their common property, by a perpetual right of possession; that the
ultimate fee was in the crown or its grantees, subject to this right of possession, and
could be granted by the crown upon that condition; that individuals could not pur-
chase Indian lands without license, or under rules prescribed by law; that possession
was considered with reference to Indian habits and modes of life, and the hunting
grounds of the tribes were as much in their actual occupation as the cleared fields of
the whites, and this was the tenure of Indian lands by the laws of all the colonies.
Grants and sales by the Indians at Indian treaties, under the sanction of the local
governments, gave a valid title. The doctrine was in that case applied to grants of
lands in Florida, from the Creek and Seminole Indians, under the sanction of the
Spanish authorities.
[ 512 ]
LECT. LI.]
388
OF REAL PROPERTY.
part of the interminable forests, deserts, and hunting-grounds of
an uncivilized, erratic, and savage race of men.
Nor could they
be brought to entertain much respect for the loose and atten-
uated claim of such occupants, to the exclusive use of a country
evidently fitted and intended by Providence to be subdued and
cultivated, and to become the residence of civilized nations.
It was part of the original destiny and duty of the
human * race to subdue the earth, and till the ground whence * 387
they were taken. The white race of men, as Governor
Pownall observed, have been "land-workers from the beginning;"
and if unsettled and sparsely scattered tribes of hunters and
fishermen show no disposition or capacity to emerge from the
savage to the agricultural and civilized state of man, their right
to keep some of the fairest portions of the earth a mere wilderness,
filled with wild beasts, for the sake of hunting, becomes utterly
inconsistent with the civilization and moral improvement of man-
kind. Vattel did not place much value on the territorial rights
of erratic races of people, who sparsely inhabited immense regions,
and suffered them to remain a wilderness, because their occupation
was war, and their subsistence drawn chiefly from the forest. He
observed that the cultivation of the soil was an obligation imposed
by nature upon mankind, and that the human race could not well
subsist, or greatly multiply, if rude tribes, which had not advanced
from the hunter state, were entitled to claim and retain all the
boundless regions through which they might wander. If such a
people will usurp more territory than they can subdue and culti-
vate, they have no right to complain, if a nation of cultivators
puts in a claim for a part, and confines the natives within narrower
limits. He alluded to the establishment of the French and Eng-
lish colonies in North America as being, in his opinion, entirely
lawful; and he extolled the moderation of William Penn, and
of the first settlers in New England, who are understood to have
fairly purchased of the natives, from time to time, the lands they
wished to colonize. (a)
The original English emigrants came to this country with no
slight confidence in the solidity of such doctrines, and in their
right to possess, subdue, and cultivate the American wilderness,
as being, by the law of nature and the gift of Providence,
open and common to the first occupants in the * character *388
(a) Droit des Gens, c. 1, sec. 81, 209.
VOL. III.
33
[ 513 ]
* 389
[PART VI.
OF REAL PROPERTY.
of cultivators of the earth. The great patent of New Eng-
land, which was the foundation of the subsequent titles and sub-
ordinate charters in that country, and the opinions of grave and
learned men, tended to confirm that confidence. According to
Chalmers, the practice of the European world had constituted a
law of nations which sternly disregarded the possession of the
aborigines, because they had not been admitted into the
*389 society of nations. (a) But whatever loose opinions
(a) Chalmers's Political Annals, 676. The Puritans circulated a paper in England,
immediately preceding their projected emigration to Massachusetts Bay, entitled
General Considerations for the Plantation of New England. Mather's Magnalia, i. 65,
ed. 1820. It was published at large in Hutchinson's State Papers (Boston, 1769,
p. 27), and it declared that "the whole earth was the Lord's garden, and he had given
it to the sons of Adam, to be tilled and improved by them. Why, then, should any
stand starving for places of habitation, and in the mean time suffer whole countries,
as profitable for the use of man, to lie waste without any improvement?" In answer
to the objection that they had no warrant for taking land a long time possessed by
other sons of Adam, it was stated, that what "was common to all was proper to none.
This savage people ruleth over many lands without title or property, for they enclose
no ground, neither have they cattle to maintain it. There was more than enough for
them and us. By a miraculous plague a great part of the country was left void of
inhabitants. Finally, they would come in with good leave of the natives." We may
also refer to an able paper, written by the Rev. Mr. Bulkley, of Colchester, in Con-
necticut, in 1724, entitled, "An Inquiry into the Right of the Aboriginal Natives to
the Lands in America, and the Titles derived from them." Massachusetts Historical
Collections, iv. 159. In that treatise the learned author confines Indian titles, which
have any solidity or value, to those particular parcels of land which they had subdued
and improved; and insists that the English had an undoubted right to enter, and
appropriate, for agricultural purposes, all the residue of the waste and unimproved
lands in the country, as being common, and open to the first bona fide occupants. He
contended, that in a state of nature, the only title to property was the labor by which
the same was appropriated and cultivated, and that the Indian tribes were still in
that imperfect state of civil policy which borders upon a state of nature; and the
extensive tracts of country which they claimed as national property were not subject
to any regulation, nor defined as property, and lay neglected in that common state
wherein nature had left it. Cotton Mather, also, in his Magnalia Christi Americana
(i. 72), considered it as an instance of the most imaginable civility, that the English
purchased several tracts of land of the natives, notwithstanding the patent which they had
for the country. The great patent of New England, granted by King James, in 1620,
to the council at Plymouth, in England (and which was by the patent incorporated
by the name of "the Council established at Plymouth, in the county of Devon, for
the planting, ruling, and governing of New England in America"), recited, that the
king's subjects had "taken actual possession of the continent mentioned in the
patent, in the name and to the use of the king, as sovereign lord thereof; that there
were no other subjects of any Christian king or state, by any authority from their
sovereign lords or princes, actually in possession of any of the lands between the
degrees of forty and forty-eight; that the country being depopulated by pestilence
and devastation, the appointed time had come in which Almighty God had thought
[ 514 ]
LECT. LI.]
* 390
OF REAL PROPERTY.
might have been entertained, or latitudinary doctrines incul-
cated, in favor of the abstract right to possess and colonize
America, it is certain that in point of fact the colonists were not
satisfied, or did not deem it expedient to settle the country with-
out the consent of the aborigines, procured by fair purchase,
under the sanction of the civil authorities. The pretensions of
the patent of King James were not relied on, and the prior Indian
right to the soil of the country was generally, if not uniformly,
recognized and respected by the New England Puritans. (a)
They always negotiated with the Indian nations as distinct and
independent powers; and neither the right of preemption,
which was * uniformly claimed and exercised, nor the state *390
of dependence and pupilage under which the Indian tribes
within their territorial limits were necessarily placed, were
carried so far as to destroy the existence of the Indians as self-
governing communities. (a) The manner in which the people of
fit and determined that those large and goodly territories, deserted as it were by their
natural inhabitants, should be possessed and enjoyed by such of his subjects as should
be conducted thither; that the settlement would tend to the reducing and conversion
of such savages as remained wandering in desolation and distress, to civil society and
the Christian religion, and to the enlargement of the king's dominions." The grant
was of all the continent between the fortieth and forty-eighth degrees of north latitude,
and “in length by all the breadth aforesaid throughout the main land from sea to
sea, provided the same, or any part, be not actually possessed or inhabited by any
other Christian prince or state," and to be called by the name of "New England, in
America." The grant was to forty corporators, consisting of noblemen, knights, and
gentlemen of high distinction; and their successors were to be supplied from time to
time by the choice of the company. The whole territory was granted to the corpora-
tion, to be held of the crown in free and common socage, and with absolute power
of legislation and government over the whole country, and with a complete monopoly
of its trade. Subsequent grants of the soil of Massachusetts and Maine issued
from this company. See the patent at large in Hazard's State Papers, i. 103, and in
Baylies' Historical Memoir, i. 160, and in the Plymouth Colony Laws, edited and pub-
lished by William Brigham, in 1836. The charter of the colony of New Plymouth,
in 1629, was granted by that company, and is also given at large in that last work.
(a) The excellent Roger Williams, the earliest and clearest asserter of the rights
and sanctity of conscience in matters of religion, wrote an essay, in which he main-
tained that an English patent could not invalidate the rights of the native inhabitants
of this country; and it was at first condemned by the government in Massachusetts,
in 1634, as sounding like treason against the cherished charter of the colony. Ban-
croft's History, i. 400.
(a) When the Puritans of New England first settled at Plymouth, and made trea-
ties with the Indians, those treaties bore the language of dependence and submission;
and the English accepted of the acknowledgments of the sachems that they were
dependent and allies and loyal subjects of King James. Morton's New England Memorial,
04, 67, 286; Baylies' Historical Memoir, i. 66, 82; Plymouth Colony Laws, App. 305,
[515]
* 391
[PART VI.
OF REAL PROPERTY.
this country, through all periods of their colonial history, treated
and dealt with the Indians, is a subject of deep interest, and well
worthy of the thorough and accurate examination of every person
conversant with our laws and history, and whose bosom glows
with a generous warmth for the honor and welfare of his country.
(5) Indian Rights, how regarded. -1. (By the colonists.)
The settlement of that part of America now composing the
United States has been attended with as little violence and
aggression, on the part of the whites, in a national point of view,
as were compatible with the fact of the entry of a race of
*391 civilized men into the territory of savages, and with *the
+
power and the determination to reclaim and occupy it. The
colony of Massachusetts, in 1633, prohibited the purchase of lands
from the natives, without license from the government; and the
colony of Plymouth, in 1643, passed a similar law. Very strong
and authentic evidence of the distinguished moderation and equity
of the New England governments towards the Indians is to be
found in the letter of Governor Winslow, of the Plymouth colony,
of the 1st May, 1676, in which he states, that before King
Philip's war, the English did not possess one foot of land in that
colony but what was fairly obtained by honest purchase from the
ed. 1836. But when war was about commencing with King Philip, in 1675, he insisted
that all former agreements with Plymouth were, as he truly apprehended they were,
agreements of amity and not of subjection, and the Indians regarded themselves as
allies, and not as subjects of England. Those Indian stipulations were regarded by
Massachusetts as amounting only to a state of qualified dependence. The Indians in
Connecticut were always treated as friends and allies, and as a free people, though
regarded in some degree as wards of the colony. The great object of the regulations
in the Revised Statutes of Connecticut, of 1672 and 1702, was to protect, civilize, and
Christianize the Indians, and this protection continues down to this day. Baylies'
Historical Memoir, ii. pt. 3, 23; Trumbull's History of Connecticut, i. 342; Revised
Statutes of Connecticut, 1821, 279, note; ib. 303; Chalmers's Political Annals, 398.
As further evidence of the truth of the historical deductions mentioned in the text,
we may refer to the king's proclamation of the 7th of October, 1763, after the treaty
of Paris, founded on the immense acquisition of territory by England, under that
treaty. It declared, "that the several nations or tribes of Indians with whom we
were connected, and who live under our protection, should not be molested or dis-
turbed in the possession of such parts of our dominions and territories, as, not having
been ceded or purchased by us, are reserved to them, or any of them, as their hunt-
ing-grounds." "And all the lands and territories lying to the westward of the sources of
the rivers which fall into the Atlantic Ocean from the west or northwest, were declared to be
reserved under the king's sovereignty, protection, and dominion, for the use of the
said Indians; and all purchases, or settlements, or taking possession of any of the
lands so reserved, without the king's special leave and license first obtained, were
strictly forbidden." Dodsley's Ann. Reg. 1763, 208.
[516]
LECT. LI.]
*392
OF REAL PROPERTY.
Indian proprietors, and with the knowledge and allowance of the
general court. (a) The New England annals abound with proofs
of a just dealing with the Indians in respect to their lands. The
people of all the New England colonies settled their towns upon
the basis of a title procured by fair purchase from the Indians
with the consent of government, except in the few instances of
lands acquired by conquest, after a war deemed to have been
just and necessary. (b) Instances are to be met with in the early
annals of New England, of regular and exemplary punishment
of white persons, for acts of injustice and violence towards the
Indians. (c) The Massachusetts legislature, in 1633, threw the
protection of its government over the Indians in the enjoyment of
their improved lands, hunting grounds, and fishing places,
*by declaring that they should have relief in any of the *392
courts as the English have. (a)
The government of the colony of New York has a claim equally
fair with that of any part of America, to a policy uniformly just,
temperate, and pacific towards the Indians within the limits of its
jurisdiction. While the Dutch held and governed the colony,
the Indian titles were always respected, and extinguished by fair
means, and with the consent of the natives. This policy was
continued by their conquerors; and on the first settlement of
the English at New York, in 1665, it was ordained that no pur-
chase of lands from the Indians should be valid without the gov-
ernor's license, and the execution of the purchase in his presence;
(a) Hazard's Collections of State Papers, ii. 531-534; Holmes's American Annals,
383; Hubbard's Narrative.
(b) Holmes's Aunals, i. 166–169, 220, 231, note 4, 233, 245, 248, 259, 312, 317; Win-
unrop's History, i. 259; Hazard's State Papers, ii. passim; Massachusetts Historical
Collections, passim; Trumbull's History of Connecticut, i. 113-117; Sullivan's Hist.
District of Maine, 143-149; Dwight's Travels, i. 167; Baylies' Hist. Memoir, i. 287;
Statutes of Connecticut, passed in 1702, 1717, and 1722. We find in the Statutes of
Connecticut, of 1838, special provisions enacted as late as 1834, 1835, and 1836, for
the protection of the land of the Mohegan, Pequot, and Niantic tribes of Indians
within that state. So the Revised Statutes of Massachusetts, of 1836, contain ex-
emption of the Indians within that commonwealth from taxation, and allow them
some special privileges and provision for the support of common schools among the
Marshpee Indians; but all marriages between them and the whites are declared void.
In Mississippi, by statute, 1829, all the privileges, immunities, and franchises of white
persons were extended to Indians, and they are competent witnesses in any case
where white persons would be. Doe v. Newman, 3 Smedes & M. 565.
(c) Winthrop's Hist. of New England, i. 34, 267, 269; Baylies' Hist. Memoir, i.
245-248; Morton's New England Memorial, 207.
(a) Holmes's Annals, i. 217, 218.
[ 517 ]
• 393
[PART VI.
OF REAL PROPERTY.
and this salutary check to fraud and injustice was essentially
continued. (b) Regulations of that kind have been the invariable
American policy. The king, by proclamation, soon after the
peace of 1763, prohibited purchases of Indian lands, unless at a
public assembly of the Indians, and in the name of the crown,
and under the superintendence of his colonial authorities. A
prohibition of individual purchases of lands, without the consent
of government, has since been made a constitutional provision in
New York, Virginia, and North Carolina. The colonists of New
York settled in the neighborhood of the most formidable
393 Indian confederacy known to the country,* and came in con-
tact with their possessions. But the Six Nations of Indians,
of which the Mohawks were the head, placed themselves and their
lands under the protection of the government of New York, from
the earliest periods of the colony administration. (a) They were
considered and treated as separate but dependent nations, and
the friendship which subsisted between them and the Dutch, and
their successors, the English, was cemented by treaties, alliances,
and kind offices. It continued unshaken from the first settle-
ment of the Dutch on the shores of the Hudson and the Mohawk,
down to the period of the American war; and the fidelity of that
friendship is shown by the most honorable and the most undoubted
attestations. (b) And when we consider the long and distressing
wars in which the Six Nations were involved, on our account,
with the Canadian French, and the artful means which were used
(b) Smith's Hist. of New York, i. 39; Duke of York's Laws, in the Collections of
the New York Historical Society, i.; Wood's Sketch of the First Settlement of Long
Island, 12, 22, 23; Collections of the New York Historical Society, i. 171, 211, 224,
227, 239. As evidence of the just and friendly disposition of the Dutch towards the
Indians, we have the interesting fact, that the Minesink Valley, on the Delaware, was
settled by Dutch emigrants as early as 1644; and being an industrious, quiet, and
pious people, and having purchased the lands from the Indians, they lived in unin-
terrupted peace and friendship with them for upwards of one hundred years. Pres-
ton's Notices of Minesink, published in 1829.
(a) Colden's History of the Five Nations, passim ; Governor Pownall's Adminis-
tration of the Colonies, 268-274; Journals of the Confederation Congress, i. May 1,
1782.
(b) The speech of the Indian Good Peter to the commissioners at Fort Schuyler,
in 1788, is strong proof of the fact. He said, that "when the white men first came
into the country, they were few and feeble, and the Five Nations numerous and power-
ful. The Indians were friendly to the white men and permitted them to settle in the
country, and protected them from their enemies." Collections of the New York
Historical Society, iii. 326.
[518]
LECT. LI.]
* 394
OF REAL PROPERTY.
from time to time to detach them from our alliance, it must be
granted, that the faith of treaties has nowhere, and at no time,
been better observed, or maintained with a more intrepid spirit,
than by those generous barbarians. (c)
men.
(c) Colden's History of the Five Nations of Canada, dependent on the Province
of New York, i. 84, et passim; Chalmers's Political Annals, 576. The confederacy of
the Iroquois, or Five Nations, (and which was known as the confederacy of the Six
Nations, after the Tuscaroras were admitted into the union,) might afford the subject
of an historical sketch, in the hands of a master, replete with the deepest interest
and curiosity. It was distinguished, from the time of the first discovery of the Hud-
son down to the war of 1756, for its power, policy, and martial spirit. At the close
of the seventeenth century that confederacy was computed to contain 10,000 fighting
Burke's Account of the European Settlements in America, ii. 193. But this
was a very exaggerated computation, for, in 1677, an intelligent traveller (Wentworth
Greehalph) who visited the Five Nations, computed the whole number of fighting
men at 2,150. In 1747, they were supposed not to exceed 1,500. The great influ-
ence of Sir William Johnson is said to have collected only 1,000 Indians for so exciting
an expedition as that against Montreal, in 1760. Douglass's Summary of the British
Settlements in North America, i. 185, 186. Annual Register for 1760; Chalmers's
Political Annals, 609. In 1763, according to a census then taken, the number of war-
riors of the Six Nations amounted to 1,950. Stone's Life of Brant, i. 86, note. The
Five Nations, during the time of their ascendency and glory, extended their dominion
on every side, and levied tribute on distant tribes. They blockaded Quebec for
several months, about the year 1660, with 700 warriors. Proud's History of Penn-
sylvania, ii. 294; Hawkins's Quebec, 305. The Molíawks were the terror and scourge
of all the New England Indians, and those dwelling west of Connecticut River paid
them tribute. Trumbull's History of Connecticut, vol. i. They extended their conquest
down the Hudson, to Manhattan Island, and subdued the Canarse Indians on the west
end of Long Island. Wood's Sketch of the First Settlement of Long Island, 1824,
p. 24. The Iroquois pushed their conquest to Lake Huron, and fought desperate
actions with the Hurons and the Chippewas on the borders of Lake Superior; and
Mr. Schoolcraft very reasonably attributes their superiority in war over the western
tribes to their early use of firearms, instead of the bow and war-club. Charlevoix
(Travels in Canada, i. 152, 167, 171) speaks in strong terms of the power and fierce-
ness of the Iroquois, who, as early as 1720, had almost extirpated the Algonquins, the
Hurons, and other tribes of Canadian savages. Mr. Thompson, in his History of
Long Island, New York, 1839, p. 56, or at p. 78, vol. i. of his second ed. 1843, says
that the Iroquois, or Six Nations, were Algonquins, and that the Algonquin, or Chip-
pewa race of Indians, embraced anciently all the tribes in New England and New
York; and the fact is derived, he says, from identity of language. This point is not
within my means of research; and recurring back to the Mohawks, Governor Colden
was well acquainted with their history, and by means of his office of Surveyor-General
of the Province of New York, he had access to the most authentic sources of informa-
tion. He wrote the first part of his History of the Five Nations as early as 1727, and
he says that they carried their arms to the Carolinas and the banks of the Mississippi,
and entirely destroyed many Indian nations. The Chevalier Tonti accompanied M.
De la Salle in his expedition and discoveries on the great lakes and the Mississippi,
1678-1684, and was appointed governor of Fort St. Louis, on the River Illinois, and
[519]
• 394
[PART VI.
OF REAL PROPERTY.
In New Jersey, the proprietaries very early secured all their
titles by Indian purchases; and all purchases to be made,
he mentions the remarkable fact, that in 1684, about 500 Iroquois warriors came and
attacked his fort, being jealous of the new establishment. Account of De la Salle's
Discoveries, by M. Tonti, inserted in the Collections of the New York Historical
Society, ii. 286. In 1684, Lord Howard, Governor of Virginia, was under the neces-
sity of meeting the chiefs of the Five Nations at Albany, in order, by negotiations,
to check their excursions to the south. Colden's History, i. 44-53. In the Indian
war of Virginia, which terminated in 1677, all the Indian tribes on the east side of
the Alleghany ridge became tributary to the province, but protected by the whites in
their persons and property. The Five Nations kept superior to any such subjection;
and though their headquarters, or great council place, was at Onondaga, in the
western part of New York, they continued their hostile marches along the frontiers
of Virginia. A treaty was at length made with them in 1722, by which they stipu-
lated not to cross the Potomac, or pass to the eastward of the great mountains; and
the tributary Indians of Virginia agreed, on their part, not to pass the same to the
north or west; and, by a colony statute, any tributary Indians violating the treaty were to be
transported and sold as slaves. 4 Randolph's Rep. 633. But the ambitious spirit and
daring enterprise of the Six Nations continued to a much later period. An intelligent
old Mohawk Indian communicated the fact to General Schuyler, that in his early life
he was one of a party of Mohawks who left their castles on an expedition against the
Chickasaws in Carolina. The expedition was disastrous, and the Chickasaws
destroyed them by an attack in ambush, and only two, of which he was one, escaped.
His companion fled to St. Augustine, but he returned home by land, and supplied
himself on his long journey with food by his bow and arrow. He cautiously avoided
all Indian settlements, and did not see the face of a human being from the time he
fled from the battle in Carolina, until he reached the Mohawk castles. This anecdote
I received in the year 1803, from General Schuyler, who appeared to place implicit
confidence in its accuracy, and no person was more competent to afford precise infor-
mation on every subject connected with our colonial history and Indian affairs than
that very intelligent and accomplished man.
The Six Nations of Indians within the state of New York, by their paucity of
numbers and insignificance (with the exception, perhaps, of the Senecas), have at
least ceased to exist in a distinct national capacity as tribes, exercising self-govern-
ment, with a sufficient competency to protect themselves. Upon this fact the laws of
New York (Act of April 12, 1822, c. 204; Revised Statutes, ii. 697) have asserted
the sole and exclusive jurisdiction of the courts of the state over all crimes and
offences committed on the Indian reservations, as well as elsewhere. In September,
1836, there was a treaty concluded between the United States and the New York
Indians (being the remains of the Six Nations) relative to their voluntary removal to
the Indian territory west of the state of Missouri, and it contained liberal provisions
for their removal and support. But by the act of New York, of the 8th of May, 1845,
the Seneca Indians who did not remove, but elected to reside on the Cattaraugus and
Alleghany Reservations, were placed in a state of protection and improvement. They
were declared to hold those reservations as a distinct community, by the name of the
"Seneca Nation of Indians," with power to institute suits in the state courts, in law
and equity, for the protection and recovery of their rights, and lands, and damages.
No individual act of any Indian was allowed to prejudice their rights and suits as a
community. An attorney for the protection of Indian rights is appointed by the state,
[ 520 ]
LECT. LI.]
* 396
OF REAL PROPERTY.
* without the consent of the government, were, by a law, *395
in 1682, declared to be void. In west New Jersey, in 1676,
the liberality of the Quaker influence went so far as to provide by
law, that in all trials where Indians, being natives of the province,
were concerned, the jury was to consist of six persons of the
neighborhood and six Indians. (a) In 1758, the Indians, at a
treaty at Easton, released, for a valuable consideration, all claims
to lands in New Jersey ; (b) and the legislature of Pennsylvania,
in 1783, asserted it to have been their uniform practice to
extinguish Indian titles by fair purchase. The justice *396
and equity of the original Indian purchases by William
Penn, the founder of Pennsylvania, particularly at his memorable
treaty of 1682, were known and celebrated throughout Europe. (a)
So, Governor Calvert, in 1633, planted Maryland, after fair pur-
chases from the Indians; and in 1644, all Indian purchases, with-
out the consent of the proprietary of the province, were declared,
by law, to be illegal and void. (b) There are also repeated proofs
upon record, of purchases from Indians, which covered a consid-
erable part of the lower country of Virginia; and Mr. Jefferson
says, that the upper country was acquired by purchases made in
the most unexceptionable form. (c) The cases of unauthorized
intrusions upon Indian lands happened in the early settlement
of Virginia; (d) for laws were very soon made in Virginia to
protect Indians in their territorial possessions and rights from the
frauds of the whites. (e) Georgia was settled under similar good
and the chiefs of the nation may annually elect local officers, and among other, three
peacemakers, who have some judicial power. The provisions are benevolent, just,
and discreet. [See Strong v. Waterman, 11 Paige, 607.]
(a) Leaming and Spicer's Collections, 273, 400, 401, 479, 667.
(b) Annual Register for 1759, 191. In 1831, the legislature of New Jersey passed
an act to extinguish the title of the Delaware tribe of Indians to the fisheries in the
rivers and bays of the state, by the payment of the consideration of $2000, though
the act declared that the right was to be considered as barred by a voluntary aban-
donment of the use of it.
(a) Watson, in his Annals of Philadelphia, in 1830, has given some curious details
respecting the localities of the spot where William Penn held his first Indian treaty,
a treaty memorable in diplomatic annals for the simplicity and moral grandeur of the
spectacle, and its auspicious and permanent influence upon the minds of the Indians.
The chain of friendship then formed continued, says Proud (History of Pennsylvania,
i. 212), uninterruptedly for more than seventy years.
(b) Chalmers's Annals, 216.
(c) Jefferson's Notes on Virginia, 153.
(d) Chalmers, b. 1, 58.
(e) Abr. Laws of Virginia, 96.
[521]
* 397
[PART VI.
OF REAL PROPERTY.
auspices; and Savannah, with a considerable tract of land, was
purchased from the Creek Indians by Governor Oglethorpe, in
1733 and 1738, under the sanction of solemn treaties. In 1763,
a large cession of lands in Georgia was also made by the Creeks,
Cherokees, and other nations of Indians.
The historical facts and documents to which we have referred,
relative to the acquisition of the Indian lands in this country,
are sufficient to vindicate the justice and moderation
*397 * of our colonial ancestors. But wars with the natives
resulted, almost inevitably, from the intrusion of the whites.
The origin of those wars is not imputable to any general spirit
of unkindness or injustice on the part of the colonial authorities,
though they sometimes exhibited signal and severe proofs of the
display of superior power and cruel retaliation. (a) There were
(a) The cases I allude to in New England were the incursions upon the Indian
settlements on Block Island; the extirpation of the Pequots; the occasional execu-
tion of sachems and other prisoners of war; the giving of rewards or a bounty for
Indian scalps, and the sale of captives, including women and children, for slaves.
See Winthrop's History of New England, i. 192-199, 232-237; ib. ii. 131-134; Pen-
hallow's Indian Wars; Morton's New England Memorial, by Davis, App. 452–455;
Hutchinson's History of Massachusetts, i. 307; Holmes's American Annals, i. 181,
237–241, 272; Baylies' Historical Memoir, vol. ii.; Trumbull's History of Connecticut,
i. 112. In Potter's Early History of Narragansett, passim, to be found in the "Collec-
tions of the Rhode Island Historical Society,” vol. iii., the injustice and cruelty of the
early New England Puritans, in their dealings and wars with the Indians, are the
subject of bold and severe animadversion. The most reprehensible conduct towards
the Indians was that in Carolina, of fomenting hostilities among the tribes, in order
to purchase or kidnap Indian captives, and sell them for slaves in the West Indies.
Mr. Grahame, on the authority of Archdale, Oldmixon. Hewit, and Chalmers, states
this fact, and says, that it was not until after persevering and vehement remonstrances
that a law was procured first to regulate, and then to extirpate this profligate practice.
Grahame's History of the American Colonies, ii. 135, 136. The Indians, except free
Indians in amity with the government, formerly were, if they be not still, regarded
in some of the states as fit subjects for slavery, like negroes, by applying to them the
maxim that partus sequitur ventrem. Stroud's Sketch of the Laws relating to Slavery,
11, 12; Butt v. Rachel, 4 Munf. 209; The State v. Van Waggoner, 1 Halst. 374.
The American Indians on every part of the coast of America were, for a long time
after the discovery of Columbus, kidnapped and sold as slaves in Europe and the
West Indies. The practice was as early as 1520, and continued for nearly two cen-
turies. The public mind was deeply vitiated on this subject. The sale and slavery
of Indians was deemed lawful, and the exile and bondage of captives in war, of all
conditions, was sanctioned by the sternest Puritans. 1 Bancroft's History, 41, 43,
180-182. But the act of Virginia, in 1679, declaring Indian prisoners, taken in war,
to be slaves to the soldiers taking them; and another act, in 1682, declaring that all
Indians sold by other Indians to the colonists as slaves, should be slaves, were repealed
as early as 1691. Hudgins". Wrights, 1 Hen. & Munf. 136; Pallas v. Hill, 2 il 149;
[522]
LECT. LI.]
* 398
OF REAL PROPERTY.
also, at times, acts of fraud and violence committed by individual
colonists, prompted by cupidity and a consciousness of superior
skill and power, and springing from a very blunt sense of the
rights of savages. (b) The causes of war with the Indians were
inherent in the nature of the case. They arose from Indian jeal-
ousy of the presence and location of white people, for the Indians
had the sagacity to perceive, what the subsequent history of this
country has abundantly verified, that the destruction of their race
must be the consequence of the settlements of the English and
their extension over the country. (c) And if wars with
them were * never unjustly provoked by the colonial gov- *398
ernments or people, yet they were, no doubt, stimulated on
the part of the Indians by the consciousness of impending danger,
the suggestions of patriotism, and the influence of a fierce and
lofty spirit of national independence. In all their wars with the
whites, the means and the power of the parties were extremely
unequal, and the Indians were sure to come out of the contest
with great loss of numbers and territory, if not with almost total
extermination. There was always much in the Indian character,
in its earlier and better state, to excite admiration, as there was,
and still is, in their sufferings, to excite sympathy.
or, according to the case of Robin v. Hardaway, Jefferson, 109, not until 1705, when
Indian slave laws ceased in Virginia.
(b) Hutchinson's History, i. 5, 283; Holmes's Annals, i. 147, 148.
(c) The war with the Pequots, in 1637, and the confederacy of Indian nations
formed in 1675, by Metacom, the sachem of the Wampanoags, commonly called
King Philip, would seem to have been formed by the influence of these patriotic
views on the part of the Indians. This is the conclusion, as to those wars, which is
drawn by an able and learned colonial annalist. Chalmers's Political Annals, 291,
398. So the efforts of Pontiac, in 1763 and subsequently, and of Tecumseh, between
1806 and 1814, to unite the Indian nations in the west in a great confederacy, for
expelling the whites from the Mississippi Valley, were made under the same impulse.
The massacre of the whites in Virginia, in 1644, arose, says Governor Winthrop
(and he wrote from contemporary information, which came from the Indians), because
the Indians saw the English took up all their lands, and would drive them out of the
country. Winthrop's History, by Savage, ii. 164. See also Bancroft's History, i
194, 195. The proud Mohawks more patiently submitted to their impending fate,
for, sagaciously dreading the rapid progress of the white population, they, in 1735,
conveyed a very valuable part of their territory to the corporation of Albany, to take
effect upon the total dissolution of their tribe, and this deed Governor Crosby afterwards
wantonly destroyed. Smith's History of New York, ii. 30. The Mohawks, as the
New York House of Assembly observed in an address in 1764 (Journals of the
Assembly, ii. 765), were the least populous, most easily managed, best affected, and
most intelligent of all the Indians.
[523]
399
[PART VI.
OF REAL PROPERTY.
2. (By the United States.) — The government of the United
States, since the period of our independence, has pursued a steady
system of pacific, just, and paternal policy towards the Indians
within their widespread territories. It has never insisted upon
any other claim to the Indian lands than the right of preëmp-
tion, upon fair terms; and the plan of permanent annuities,
which the United States, and the state of New York, among
others, have adopted as one main ingredient in the consideration
of purchases, has been attended with beneficial effects. (a) The
efforts of the national government to protect the Indians from
wars with each other, from their own propensity to intemper-
ance, from the frauds and injustice of the whites, and
*399 * to impart to them some of the essential blessings of
civilization, have been steady and judicious, and reflect
lustre on our national character. (a) This affords some consola-
tion, under a view of the melancholy contrast between the original
character of the Indians, when the Europeans first visited them,
and their present condition. We then found them a numerous,
enterprising, and proud-spirited race; and we now find them a
(a) As evidence of the extent of the dealings of the United States with the Indians,
and of the pecuniary expenditures and annuities granted to them, or on their account,
under treaty stipulations, we may refer to the act of Congress of the 3d March, 1835,
c. 50, which made an annual appropriation of one million eight hundred and thirty
thousand dollars and upwards, to the following nations and tribes, viz.: The Six
Nations of Indians in New York, the Senecas, Ottawas, Wyandotts, Munsees, Dela-
wares, the Christian Indians, the Miamis, Eel River's Pottowattamies, Pottowattamies
of Huron, of the Prairie, of the Wabash, of Indiana; the Chippewas, Winnebagoes,
Menomonies, the Sioux of Mississippi; the Yancton and Santie Bands, Omahas, Sacs
of Missouri, the Sacs, Foxes, Ioways, Ottoes, Missourias, Kansas, Osages, Kickapoos,
Kaskaskias, and Peorias, the Weas, Piankeshaws, Shawanees, Senecas of Lewiston,
Choctaws, Chickasaws, Creeks, the Creeks East, the Creeks West, the Cherokees,
the Cherokees West, the Quapaws, the Florida Indians, and the Pawnees. Similar
specific appropriations were made, in subsequent years, for Indian annuities, &c.;
and these annual provisions for expenditures incurred on account of the Indians under
the guardianship of the United States, cover annual stipulations, arising under Indian
treaties, from the year 1790 down to this day.
(a) In the ordinance of Congress of 13th July, 1787, for the Government of the
Territory of the United States northwest of the river Ohio, it was made a funda-
mental article of compact between the original states and the people and states in the
said territory, that the utmost good faith should always be observed towards the
Indians. Their lands and property should never be taken from them, without their
consent. In their property, rights, and liberty they never should be invaded or dis-
turbed, unless in just and lawful wars authorized by Congress; and just and humane
laws should from time to time be made for preventing wrongs being done to them
and for preserving peace and friendship with them.
[ 524 ]
LECT. LI.]
* 400
OF REAL PROPERTY.
feeble and degraded remnant, rapidly hastening to annihilation.
The neighborhood of the whites seems, hitherto, to have had an
immoral influence upon Indian manners and habits, and to have
destroyed all that was noble and elevated in the Indian character.
They have generally, and with some very limited exceptions,
been unable to share in the enjoyments, or to exist in the presence
of civilization; and, judging from their past history, the Indians of
this continent appear to be destined, at no very distant period
of time, to disappear with those vast forests which once covered
the country, and the existence of which seems essential to their
own. (b)
(b) An able and well instructed writer in the North American Review, N. s. XIL
(1826,) art. 5, has satisfactorily shown that the intentions of the government of the
United States, in their treatment of the Indians, and in all their intercourse with
them, have been uniformly just and benevolent. This was the case down to the year
1829. But under the administration of President Jackson, the policy and course of
conduct of the government of the United States, in respect to the Indian tribes on the
east side of the Mississippi, and south of the Ohio and the Potomac, was essentially
changed. The act of Congress of May 28th, 1830, c. 148, first gave legislative sanc-
tion to the policy and plan of exchanging the Indian lands, within the limits of the
individual states, for portions of the unoccupied territory of the United States west of
the Mississippi, and for causing the Indian tribes or nations east of the Mississippi to
be removed and established in that western territory. The plan was further matured
by the act of Congress of July 14th, 1832, c. 228, and the execution of it became the
systematic and settled policy of the administration of President Jackson. The pro-
tection which was directed to be afforded to the Indians, under the act of Congress of
30th March, 1802, and which was stipulated, by treaties, to be granted to them, has
been withdrawn; and the Cherokees, in particular, have been left in a defenceless
state, to the penal laws of the State of Georgia. The President, by his message to
Congress of the 15th of February, 1832, declared his conviction, "that the destiny of
the Indians within the settled portion of the United States, depends upon their entire
and speedy migration to the country west of the Mississippi," and that if any of the
Indians repel the offer of removal, they must remain "with such privileges and disa-
bilities as the respective states, within whose jurisdiction they be, may prescribe."
He said again, in his message to Congress of December 7th, 1835, that "the plan of
removing the aboriginal people, who yet remain within the settled portions of the
United States, to the country west of the Mississippi, ought to be persisted in till the
object is accomplished, and prosecuted with as much vigor as a just regard to their
circumstances will permit, and as fast as their consent can be obtained. All preced-
ing experiments for the improvement of the Indians have failed. They cannot live
in contact with a civilized community and prosper."
* The case of the southern Indians is one which appears to be in every view *400
replete with difficulty and danger; and especially when we consider the differ-
ent and conflicting views which have been taken of their rights by the supreme execu-
tive and judicial authorities of the Union.
Since the preceding part of this note was written, and in 1838, those Indians have
finally been expelled, by military force, from the southern states, and transported
[ 525 ]
• 400
[PART VI.
OF REAL PROPERTY.
across the Mississippi. President Van Buren in his message to Congress of the 4th
December, 1838, entered into an elaborate vindication of the policy of the federal
government in the removal of the Indian nations from the east to the west side of
the Mississippi, and held that a mixed occupancy of the same territory by the white
and red man was incompatible with the safety and happiness of either, and that their
removal was dictated by necessity. He stated that the exclusive and peaceable pos
session of their new territory, west of any of the states, was guaranteed to them by
the United States; and that since the 4th of March, 1829, the Indian title to upwards
of one hundred and sixteen millions of acres of land has been acquired, and that the
United States had paid upwards of seventy-two millions of dollars to and on behalf
of the Indians, in permanent annuities, lands, reservations, and the necessary expense
of removal and settlement of them.
The condition of the Indian tribes in the northwestern part of the United States
is also deplorably wretched. They have outlived, in a great degree, the means of
subsistence in the hunter state, and the tribes west of Lake Michigan, and on the
waters of the Upper Mississippi, are unable to procure the requisite food and clothing.
They perish from diseases incident to savage life, and arising from scanty and un-
wholesome food, listless indolence, intemperance, and the want of every comfort.
These causes operate as fatally as wasteful wars with each other. See observations
of General Lincoln, in Mass. Historical Collections, v. 6, and of the Rev. Dr. Kirk-
land, id. iv. 67 ; Governor Clinton's Discourse before the New York Historical Society,
in the Collections of the New York Historical Society, ii. 37; Memoir of Governor
Cass, of the Michigan Territory, addressed to the Secretary of War, in October, 1821;
Major Long's Expedition to the source of St. Peter's River, in 1823, ii. passim; Messrs.
Clark & Cass, in their Report to Congress, in 1829. The Indians consider their coun-
try lost to them by encroachment and oppression, and they are irreclaimably jealous
of their white neighbors. The restless and enterprising population on their borders
are exempt, no doubt, from much sympathy with Indian sufferings, and they are pene-
trated with perfect contempt of Indian rights. If it were not for the frontier gar-
risons and troops of the United States, officered by correct and discreet men, there
would probably be a state of constant hostility between the Indians and the white
borderers and hunters. They covet the Indian hunting grounds, and they will have
them; and the Indians will finally be compelled by circumstances, annoyed as they
are from without, and with a constantly and rapidly diminishing population, and with
increasing poverty and misery, to recede from all the habitable parts of the Missis-
sippi Valley and its tributary streams, until they become essentially extinguished, or
lost to the eye of the civilized world.
In June, 1834, a bill was introduced into the House of Representatives of the Con-
gress of the United States, for establishing an Indian Territory west of the Mississippi,
extending from the Platte River on the north, and the state of Missouri and the
Arkansas territory on the east, to the Spanish possessions south and west; and it was
the favorite policy of the government to persuade all the Indian tribes, east of the
Mississippi, to migrate and settle, as a confederacy of tribes, on that territory. The
bill provided a government for the confederacy, to be established, with the free con-'
sent of all the Indian chiefs, and to be governed by Indian chiefs, under the control
and patronage of the government of the United States; and it provided that the
Indian confederacy might send a delegate to Congress. But the bill met with so
much opposition in the House, that it was laid upon the table and never called up.
An act of Congress was, however, passed on the 30th June, 1834, c. 161, consolidating
many of the former provisions in the laws since the year 1800, and altering others, and
establishing a new Indian code. It provided that the part of the United States west
of the river Mississippi, and not within the states of Missouri and Louisiana, or the
[526]
LECT. LI.]
* 400
OF REAL PROPERTY.
territory of Arkansas, and also the part of the United States east of the Mississippi,
and not within any state to which the Indian title has not been extinguished, should
be taken and deemed to be the Indian Country. There was to be no trade with any of
the Indians therein, without a license from, and under the regulations of, the general
superintendent of the Indian affairs, or some agent thereof, and which licenses were
subject to recall; no trader was to reside, or attempt to reside therein, without a
license, nor must any foreigner go into the Indian country without a passport; no
barter, except between Indians; and no persons other than Indians are to hunt, trap,
take, or destroy any [peltries] or game within the limits of any tribes with whom the
United States have treaties. No person is to drive or convey horses, mules, or cattle,
to range or feed on any Indian lands, without the consent of the tribe to whom the
lands belong. The superintendent and agents of Indian affairs are authorized to
remove from the Indian country all persons found there contrary to law, and the
President of the United States may employ military force for that purpose. All per-
sons making a settlement on any lands belonging, secured, or granted, by treaty with
the United States, to any Indian tribe, or surveying, or attempting to survey the same,
or to designate boundaries, are liable to a penalty, and to be removed by military
force. All purchases from any Indian nation or tribe must be by treaty authorized
by law. It is made penal to interfere by message, talk, or correspondence with any
Indian nation, tribe, chief, or individual, with intent to violate any treaty or law; or
to sell, give, or dispose of, to any Indian in the Indian country, spirituous liquors or
wine. The criminal laws of the United States are declared to be in force in the Indian
country; but they are not to extend to crimes committed by one Indian against the
person or property of another Indian. In the repeal of most of the former statute
provisions since 1800, relative to the Indians, the Intercourse Act of March 30, 1802,
is excepted, so far as respects the Indian tribes residing east of the Mississippi. By
act of Congress of March 3d, 1847, the act of 1834 was amended, with more efficient
protection to the Indians against the introduction of spirituous liquors and wine, and
for the more safe appropriation to the Indians of the annuities, moneys, and goods,
paid or furnished by the United States to the Indian tribes. The character of this
Indian territory came into discussion in the case of The United States v. Rogers, 4
How. 567; and it was adjudged that the Indian tribes residing within the territorial
limits of the United States (and this Indian territory is within such limits) were
subject to their authority, and Congress may by law punish offences committed there,
(if not within the limits of one of the states,) whether the offender be a white man
or an Indian; and that though a white man of mature age be adopted in an Indian
tribe, he is not an Indian within the proviso of the act of Congress, and is liable to
indictment and trial for crimes committed in such territory, as being within the juris-
diction of the Federal courts.
"Who can assure the Indians,” says De Tocqueville, (De la Democratie en Amé-
rique, ii. 298, 299,) "that they will be permitted to repose in peace in their new asylum?
The United States engage to protect them, but the territory which they occupied in
Georgia was guaranteed to them by the most solemn faith. In a few years, the same
white population which pressed upon them in their ancestral territory will follow them
to the solitudes of Arkansas; and as the limits of the earth will at last fail them,
their only relief will be death." The last remnant of the Indian tribes east of the
Mississippi and north of the Ohio were the Wyandotts, "the last of the braves of the
Ohio tribes," and a remnant of the Miami tribe in Indiana, with the exception of
the remains of the Senecas, of the Six Nations. They have been sent "in hopeless
banishment" to the far West. Burnet [in the Notes on the early settlement of the
Northwestern Territory, by Jacob Burnet, New York, 1847, c. 21] considers that the
commencement, progress, and close of the degeneracy and ruin of the Northwestern
[ 527 ]
* 400
[PART VI.
OF REAL PROPERTY.
•
Indians began at the treaty of Greenville, in 1793, which opened a friendly inter-
course and corrupting influence with the whites, and which in less than fifty years
terminated in the extinction of a race of men once numerous, powerful, brave, and
uncontaminated with the corruptions of civilization, and who were the original and
undisputed sovereigns of the entire country, from Pennsylvania to the Mississippi,
"and a more delightful, fertile valley cannot be found on the earth." Judge Burnet
cites the cases of the Cherokees and the Wyandotts, to prove that the Indians were
capable of the arts of civilized life, and that necessity would have made them indus-
trious and prosperous agriculturists, "if the covetous eye of the white man had not
fixed on their incipient improvements."
[ 528 ]
LECT. LII.]
* 101
OF REAL PROPERTY.
LECTURE LII.
OF INCORPOREAL HEREDITAMENTS.
THINGS real consist of lands, tenements, and hereditaments.
The last word is almost as comprehensive as property, for it
means any thing capable of being inherited, be it corporeal,
incorporeal, real, personal, or mixed. (a) The term real estate
means an estate in fee or for life in land, and does not compre-
hend terms for years, or any interest short of a freehold. (b) A
tenement comprises every thing which may be holden, so as to
create a tenancy, in the feudal sense of the word, and no doubt
it includes things incorporate, though they do not lie in ten-
ure. (c) Corporeal hereditaments are confined to land, which,
according to Lord Coke, (d) includes not only the ground or
soil, but every thing which is attached to the earth, whether by
the course of nature, as trees, herbage, and water, or by the
hand of man, as houses and other buildings; and which has an
indefinite extent, upwards as well as downwards, so as to
include every thing terrestrial, under or over it. (e) Incorporeal
(a) Co. Litt. 6, a.
(b) Co. Litt. 19, 20; and see supra, ii. 342; Merry v. Hallet, 2 Cowen, 497.
(c) Preston on Estates, i. 8; Co. Litt. 19, b, 20, a; Doe v. Dyball, 1 Moore & P. 330.
(d) Co. Litt. 4, a.
(e) 2 Bl. Comm. 18. There are exceptions to the general rule, that land includes
every thing above and below the surface. Thus, a man may have an inheritance in
an upper chamber, though the lower buildings and the soil be in another, and it will
pass by livery. Co. Litt. 48, b. Ejectment will lie for a house, without any land;
and a house erected by A on the land of B, with permission, or under contract,
belongs to A as personal property. Doty v. Gorham, 5 Pick. 487; Marcey v. Darling,
8 id. 283; | Howard v. Fessenden, 14 Allen, 124, 128; Pullen v. Bell, 40 Me. 314 ; Dame v.
Dame, 38 N. H. 429.] It is usual, in such a city as London, for different persons to have
several freeholds in the same spot. The cellar may belong to one person, and the
upper rooms to another. Doe v. Burt, 1 T. R. 701. The lease of a cellar, or other
room in a house, gives no interest in the land; and if the house be destroyed, the
lessee's interest is gone. Winton v. Cornish, 5 Ohio, 478; [post, 468, n.] A grant of
water does not pass the soil beneath, but it passeth a right to fishing. Co. Litt. 4, b.
VOL. III.
34
[529]
402
[PART VI.
OF REAL PROPERTY.
*402 * tenements and hereditaments comprise certain inheri-
table rights, which are not, strictly speaking, of a corporeal
nature, or land, although they are, by their own nature, or by
use, annexed to corporeal inheritances, and are rights issuing out
of them, or concern them. They pass by deed without livery,
because they are not tangible rights. (a) These distinctions were
well known to the civil law, and are clearly defined in Justin-
ian's Institutes. They have their foundation in the nature of
things, and very material legal consequences flow from them in
practical jurisprudence. Res corporales sunt quæ sua natura tangi
possunt, veluti fundus; incorporales sunt quæ tangi non possunt
et in jure consistunt, sicut usus fructus, usus et obligationes. (b) ¹
A freehold right in a pew in a church may be classed among incor-
poreal rights, for in England the right only extends to the use
of the pew for the purpose of sitting therein during divine ser-
vice. (c) The owner of the pew cannot dig a vault under it, or
(a) Bracton, ii. 18; Co. Litt. 20, a, 49, a.
(b) Just. Inst. 2. 2. A corporate right or privilege to select and acquire land for
a corporate purpose, is declared to be an incorporeal hereditament, existing inde-
pendent of, and prior to, any act of location or survey. Canal Company v. Railroad
Company, 4 Gill & J. 1.
(c) 2 Addams Eccl. 419. The qualified interest of a party in a pew in a church
is an interest in real estate, and comes within the statute of frauds, and a parol con-
tract for a pew beyond a year is void. First Baptist Church of Ithaca v. Bigelow,
16 Wend. 28. In Maine, Massachusetts, and Connecticut, pews in a church are
declared to be real estate. In New Hampshire and in the city of Boston, they are
held to be personal estate. The Revised Statutes of Massachusetts made that excep-
tion in favor of Boston, as had been previously done by the statute of 1798. In
Vermont, a pew owner has a right to the occupation of it when the church is used
for public worship, but is not entitled to compensation if the house be pulled down
as too old and unfit for public worship, though it would be otherwise if taken down
for the sake of taste or convenience. Kellogg v. Dickinson, Law Reporter for May,
1846. [18 Vt. 266.] In Pennsylvania, a cemetery annexed to a church, and used for
burial of the dead, cannot be the subject of a mechanic's lien, and sold for debt.
1 The distinction between corporeal
and incorporeal things was attacked by
Austin as senseless; lect. xiii. 372; lect.
xl. 708; but if quæ in jure consistunt be
translated "which exist only in contem-
plation of law," or which depend on the
law for existence," instead of "which
consist in a right," as in the ordinary
translations, it will be seen to have had
a meaning in the Roman law. The first
instance of the res incorporales given in
the Institutes is the hereditas, which is a
fictitious thing in the same sense in which
a corporation is a fictitious person; and
is said in the Digest to be a univer situs
distinct from its component parts (D. 50.
16. 208). This shows what the Roman
lawyers had in mind, although some of
their examples may be hard to justify.
The above suggestion will be found more
fully explained in an article by the present
writer, 7 Am. Law Rev. 55. iv. 441, n. 1.
[530]
LECT. LII.]
* 402
OF REAL PROPERTY.
erect any thing over it, without the consent of the owners or
trustees of the church. (d) It is a right subject to that of the
trustees or owners of the church, who have the right to take
down, rebuild, or remove the church, for the purpose of more con-
venient worship, without making any compensation to the pew
holders for the temporary interruption; though it has been held,
in Massachusetts, that if the church should be taken down un-
necessarily, and as a matter of expediency and not of necessity,
the pew holder would be entitled to be indemnified for the loss of
his pew. While the house remains, the right to the use of the pew
is absolute, and the owner may maintain ejectment, case, or tres-
pass, according to circumstances, if he be disturbed in his right. (e)
The incorporeal hereditaments which subsist by our law are
fewer than those known and recognized by the English law. We
have no such rights as advowsons, tithes, dignities, (ƒ) and
Beam v. Methodist Church, The Law Reporter for September, 1846. In England, the
parson is seised of the freehold of his church, and the right of property in a particular
pew is a mere easement annexed to the messuage of the pew holder. [See Churton
v. Frewen, L. R. 2 Eq. 634.] Pews are subject to the control of church wardens
under the ordinary. But in New York a pew holder is held not to have an interest
in the soil. The freehold of the church is in the trustees. The right of the pew
holder is not real estate, and is no bar to a sale of the church and grounds by the
trustees. But if the corporation of the church owns the fee of the ground, and the
trustees have granted a durable lease or fee of ground for a vault, it cannot be sold
if the owner of the vault objects. In the matter of the Brick Presbyterian Church,
8 Edw. Ch. 155; Shaw v. Beveridge, 3 Hill, 26.
(d) Ryder, C. J., Sayer, 177; Daniel v. Wood, 1 Pick. 102; 3 id. 346.
(e) Gay v. Baker, 17 Mass. 435; Howard v. First Parish, &c., 7 Pick. 138; Kim-
ball v. Second Parish in Rowley, 24 id. 347; [Gorton v. Hadsell, 9 Cush. 508. See
St. Paul's Church v. Ford, 34 Barb. 16; Cooper v. Presb. Ch., 32 Barb. 222;
Wheaton v. Gates, 18 N. Y. 395; Abernethy v. Church of the Puritans, 3 Daly, 1;
Perrin v. Granger, 33 Vermont, 101.] Baptist Church v. Witherell, 3 Paige, 302;
Fisher v. Glover, 4 N. H. 180; Price v. Methodist Church, 4 Ohio, 515. See Pettman
v. Bridger, 1 Phill. Eccl. 316, as to pew rights, under the ecclesiastical law; Heeney
v. St. Peter's Church, 2 Edw. Ch. 608; Shaw v. Beveridge, 3 Hill, 26.
(f) The law of dignities, though unknown to us, is of great importance in the
English law, and it frequently brings into view deep investigations in regal and par-
liamentary antiquities. As matters for curious inquiry, we may particularly select
two great peerage cases before the House of Lords, as being replete with antiquarian
erudition and research. The cases I allude to are, (1) The case of the Earldom of
Oxford, in the time of Charles I., in which the title and dignity of that earldom,
under the name of the noble house of De Vere, was traced up through successive
descents and generations to the time of William the Conqueror. The case at
large, with the opinions of the judges, is reported in Sir W. Jones's Reports, 96.
(2) The case of the Barony of L'Isle, decided a few years ago, upon the claim of Sir
John Shelley Sidney, who traced up his claim in a clear course of descent to the
[ 531 ]
* 404
[PART VI.
OF REAL PROPERTY.
*
*403 franchises of the chase; and those titles require compli-
cated regulations, and have been a fruitful source of dis-
cussion. The most litigious cases in the Exchequer Reports are
those relating to tithes; and it is a great relief to the labors of
the student, and a greater one to the duties of the courts, and
infinitely more so to the agricultural interests of the country, that
the doctrine of tithes is unknown to our law.
The incorporeal rights which I shall now consider, are, 1. Com-
mons; 2. Ways, easements, and aquatic rights; 3. Offices, 4.
Franchises; 5. Annuities; and 6. Rents.
1. Of the Right of Common. The right of common is a right
which one man has in the lands of another. The object is, to
pasture his cattle, or provide necessary fuel for his family, or for
repairing his implements of husbandry. (a)¹
This right was intended, in early ages, for the encouragement
of agriculture, and existed principally between the owner of a
manor and his feudal tenants. 66
By the ancient common law,"
said Lord Coke, when commenting upon the statute of Merton, (b)
"if a lord of a manor enfeoffed others of some parcels of arable
land, the feoffees should have common appendant, in the waste
ground of the manor, for two causes: (1.) As incident to the
feoffment, for the feoffee could not plough and manure his ground
without beasts, and they could not be sustained without pasture;
and, by consequence, the tenant shall have common in the wastes
of the manor for his beasts of the plough; and this was the
beginning of common appendant. (2.) The other reason was, for
maintenance and advancement of agriculture, which was much
favored in law." The policy of the old law in favor of common
of pasture and of estovers, as being conducive to improvement
in agriculture, has entirely changed, or become obsolete; and
this incorporeal right is now found to be an incumbrance
*404 rather than an advantage. The rights of common * are
little known or used in this country, and probably do not
Countess of Shrewsbury, in the time of Edward IV. The barony had fallen into
abeyance, and slept in the tomb of the Countess of Warwick ever since the year
1421. But as no time bars in cases of peerage, it was, upon very plausible grounds,
attempted to be revived in 1825. The case was reported by Mr. Nicholas. See the
London Law Magazine for July, 1829, art. 3.
(a) Finch's Law, 157, [b. 2, c. 9.]
(b) 2 Inst. 86; 4 Co. 37, a.
1 The origin of commons in the communities of the middle ages is explained post
iv. 441, n. 1.
[532]
LECT. LII.]
* 405
OF REAL PROPERTY.
exist in any of the northern or western parts of the United States,.
which have been settled since the Revolution. The Ch. J. of
Pennsylvania, while he admitted that a right of common was an
estate well known in the law, declared that he knew of very few
instances of rights of common. (a) But the right is still known
and enjoyed, and has been frequently a subject of litigation, in
some parts of the State of New York; and it is interesting to
perceive the nice distinctions, and the clear and accurate sense
of justice, which arose and were applied to this head of the law.
(1) Of Common of Pasture and of Estovers. - Common of
pasture was known at common law as common of pasture append-
ant and common of pasture appurtenant. The first, or common
appendant, is founded on prescription, and is regularly annexed to
arable land. It authorized the owner or occupier of arable land to
put commonable beasts upon the waste grounds of the manor, from
the necessity of the case, and to encourage agriculture. The ten-
ant was limited to such beasts as were levant and couchant on his
estate, because such cattle only were wanting to plough and
manure his land. It was deemed an incident to a grant of land, as
of common right, and to enable the tenant to use his plough
land. (b) Common appurtenant may be annexed to any kind of
land, and may be created by grant as well as prescription. (c) It
allowed the owner to put in other beasts than such as plough or
manure the land; and, not being founded on necessity, like the
other right, as to commonable beasts, was not favored in the
law. (d) Common of estovers may be equally appendant or
appurtenant.
The law concerning common appendant received great discus-
sion and consideration, in Bennett v. Reeve, in 1740. (e)
* It was admitted to be the settled law, that common of *405
pasture appendant belonged only to arable land, and could.
not be severed from it; and that if the land be divided ever so
often, every little parcel was entitled to common appendant, but
only for commonable cattle, or such as were necessary to plough
and manure the tenant's arable land. The Court of C. B., after
(a) Trustees of the Western University v. Robinson, 12 Serg & R. 33. We meet,
however, with a discussion of the right of common in Carr v. Wallace, 7 Watts
(Penn.), 394.
(c) 2 Bl. Comm. 33; Cowlan v. Slack, 15 East, 108.
(b) 2 Bl. Comm. 33.
(d) 2 Bl. Comm. 33; 3 Cruise's Dig. tit. Common.
(e) Willes, 227.
[533]
406
[PART VI.
OF REAL PROPERTY.
two arguments, rejected the claim of a tenant, who, by the process
of subdivision, claimed only a yard of land to a right of common
for sixty-four sheep. He was entitled only to a right of common
for such cattle as were wanted to plough and manure his yard of
land, and in this way the court brought his claim within reason-
able limits.
Common of pasture, whether appendant or appurtenant, might
be apportioned upon the alienation of the land to which the com-
mon belonged, because it was founded in necessity and common
right. "God forbid," said Lord Coke, (a) "that the law should
not be so, for otherwise many commons in England would be
avoided and lost." Thus, in Wild's Case, (b) he being seised of
forty acres of land, to which a right of common pasture on two
hundred adjoining acres for commonable cattle was appurtenant,
sold five acres. It was held, that the alienee had a right of com-
mon appurtenant to the five acres, and that the alienation of part
of the land did not destroy the right of common either of the
alienor or alienee, but each retained a right of common propor-
tioned to their estates. The warm language of Coke shows the
deep conviction of that age, that these rights of common were
indispensable to the tillage of the English tenantry. But the
change of manners and property, and of the condition of society
in this country, is so great, that the whole of this law of com-
monage is descending fast into oblivion, together with the memory
of all the talent and learning which were bestowed upon it by the
ancient lawyers.
* 406
*There have been several cases on this subject of the
right of common of pasture, and of estovers, discussed
in the Supreme Court of New York, and the principles to be
deduced from the ancient decisions were fully and accurately
considered.
The first case I allude to was that of Watts v. Coffin, (a) which
was upon a lease executed before the Revolutionary war, in which,
by express covenant, the grantor had conveyed to the lessee in
fee common of pasture, and reasonable estovers, out of the woods
of the manor of Rensselaerwick, at Claverack. The grantor had
cultivated, or, in ancient language, approved the manor lands by
leasing, so as to leave no common of estovers or of pasture, and
in that way had actually destroyed the exercise of the right under
(a) 4 Co. 38.
(b) 8 Co. 78, b.
(a) 11 Johns 495.
[534]
I.ECT. LII.]
407
OF REAL PROPERTY.
the covenant. The only question was, as to the remedy; and it
was held, that the tenant could not set off that claim under the
covenant, against the rent due upon the perpetual lease, but must
resort to his covenant if any remedy existed. It was, however,
left undecided, whether any right of common existed after the
waste and unappropriated parts of Claverack had disappeared by
the settlement and improvement of the country. In England,
before the statute of Merton, 20 Henry III., it was supposed that
the lord could not improve any part of his waste grounds, however
extensive they might be, provided another person had a grant of
common of pasture therein, because the common issued out of
the whole waste, and every part of it. But that statute, and the
statute of Westminster II., 13 Edward I., allowed him to do it, if
he left sufficient common of pasture for the tenants; and this was
all that any tenant could, in common justice, have required, before
the provision of the statute. It is now well settled in the English
law, that the owner of lands, in which another has a right of
common, may improve and enclose part of the common,
*leaving a sufficiency of common for the tenant. In those *407
cases in which a right of common of pasture exists here,
the right of the owner of the soil to improve would seem neces-
sarily to be subject to the same limitation, and to be exercised
consistently with the preservation of a right of common.
The next case in which this right of common was discussed
was that of Livingston v. Ten Broeck. (a) In that case an ancient
deed had conveyed a large tract of land in the manor of Living-
ston, with a right of common of pasture and of estovers; and the
court, in the decision of that case, recognized several principles.
of ancient law applicable to this right of common.
Thus, if a person seised of part of the land subject to common,
should purchase part of the adjoining land entitled to common,
here would be an unity of title in one and the same person to part
of the land entitled to a privilege of common, and to part of the
land charged with that privilege, or out of which the common
was to be taken. This unity of title extinguished his right of
common, and upon this principle, that if it was to continue in his
hands, his interest would induce him to take common for the land
he purchased out of that part of the manor which he did not own,
in order to relieve his own land of the burden and cast it upon
(a) 16 Johns. 14.
[ 535 ]
* 408
[PART VI.
OF REAL PROPERTY.
his neighbor. This temptation to abuse and fraud the cautious
policy of the old law would not permit. So, also, if a man,
having common in a large field owned by several persons, pur-
chased an acre from one of them, his right of common was extin-
guished upon the same principle. This was the rule declared
in Rotherham v. Green; (b) and the right of common became
extinct equally in either case, by aliening or releasing part of the
land entitled to common, and by purchasing part of the
*408 land charged with it. If it were otherwise, the tenant
*
of the residue might be charged with the burden of the
whole common. The rule is, that this right of common shall
not be so changed or modified by the act of the parties, as to
increase, or even to create the temptation to increase, the charge
upon the land out of which common is to be taken. An extin-
guishment of the right as to a portion of the land charged, is an
extinguishment of the whole; and this principle of ancient policy
was illustrated in the case to which I have referred.
In Leyman v. Abeel, (a) another branch of the same subject was
brought under the consideration of the Supreme Court.
It was held, that incorporeal hereditaments descend by inher-
itance as real estate, and in that case a right of common of esto-
vers, which had descended to children, was held to be incapable
of division between them; and this upon an old and just prin-
ciple of law, to prevent the land from being doubly or trebly
charged. In accordance with the case of The Earl of Huntington
v. Lord Mountjoy, (b) it was held, that a common in gross and
uncertain, as the right to cut wood and dig turf, might be
assigned, but it could not be aliened in such a way as to give
the entire right to several persons, to be enjoyed by them sep-
arately. Lord Coke said, (c) that if such a right of common
descended to coparceners, as it was not partable, the eldest
(b) Cro. Eliz. 593. [See Hall v. Lawrence, 2 R. I. 218; Bell v. Ohio & P. R.R.,
25 Penn. St. 161.]
(a) 16 Johns. 30. So, also, in Van Rensselaer v. Radcliff, 10 Wend. 639, it was
adjudged, according to the doctrine of Lord Coke, in Co. Litt. 164, b, that common of
estovers could not be apportioned. It is an entirety, and cannot be divided, for that
might work oppression and injustice, by surcharging the land. If, therefore, a farm
entitled to estovers be divided by the act of the party among several tenants, neither of
them can take estovers, and the right is extinguished. [See Livingston v. Ketcham,
1 Barb. 592.]
(c) Co. Litt. 165, a.
(b) Godbolt, 17; Co. Litt. 164, b, s. c.
[ 536 ]
LECT. LII.]
* 410
OF REAL PROPERTY.
should have the right, and the rest should have contribution, or
an allowance of the value in some other part of the inheritance.
But if the ancestor left no inheritance from which to make com-
pensation or recompense to the younger coparceners, one parcener
was to have it for a time, and the other for the like time, so that
no prejudice should accrue to the owner of the soil. This mode
of enjoyment, alternately, or in succession, was carried, in
the * ancient law, to a ludicrous extent. Thus, says Coke, *409
according to the rules to be found in Bracton, Britton, and
Fleta, in the case of a common of piscary descending to two or
more parceners, the one may have one fish, and the other the
second; the one may have the first draught, and the other the
second. If it be of a mill, the one was to have the mill for a
time, and the other for the like time, or the one the first toll dish,
and the other the second.
In the case in New York last referred to, it was held, that this
law was changed under the operation of our statute of descents,
and that if such a right of common descended to several heirs as
tenants in common, or parceners, it could not be divided, but
there must be a joint enjoyment. They may jointly alien, but
one tenant cannot convey alone, nor can the eldest heir take the
whole of this indivisible right of common of estovers, and make
recompense. It is a joint right, to be enjoyed jointly by the heirs,
or their assignees; and upon the principle that the land charged
with the right is not to have an increase of burden by the multi-
plication of claimants.
This right of common may be controlled by custom. It may be
held subservient to a distinct right in the lord of the manor,
founded on immemorial usage, to dig in the soil, without leaving
sufficient herbage for the commoners. (a)
(2) Of Common of Piscary. This is said to be a liberty, or
right of fishery in the water covering the soil of another person,
or in a river running through another man's land. (b) A com-
mon of fishery is not an exclusive right, but one enjoyed in com-
mon with certain other persons; and Lord Holt said it was to be
resembled to the case of other common. (c) The books
speak likewise of a *free fishery, as being a franchise in the *410
(a) Bateson v. Green, 5 T. R. 411.
(b) 2 Bl. Comm. 34, 39; Cruise's Digest, tit. Common, sec. 34.
(c) 2 Salk. 637.
[ 537 ]
* 411
[PART VI.
OF REAL PROPERTY.
hands of a subject existing by grant or prescription, distinct
from an ownership in the soil. It is an exclusive right, and
applies to a public navigable river, without any right in the
soil. (a) There is also a several fishery, which is a private exclu-
sive right of fishery in a navigable river or arm of the sea, accom-
panied with the ownership of the soil. It is a grant along with
the soil, though the soil may be granted without this several
fishery; and it has likewise been strongly asserted and maintained,
that a several fishery may exist without the ownership of the
soil. (b)
But these distinctions between common of piscary, free fishery,
and several fishery, seem to be quite unsettled in the books; (c)
and the authorities referred to by Mr. Hargrave, (d) throw em-
barrassment in the way of the attempt to mark with pre-
* 411 cision the line of discrimination between the several * rights
of fishery. In a modern case, (a) the judges took a dis-
tinction between a common fishery (commune piscarium), which
may mean for all mankind, as in the sea, and a common of fish-
ery (communiam piscaria), which is a right, in common with cer-
tain other persons, in a particular stream; and the text writers
were deemed to have spoken inaccurately when they confounded
(a) This exclusive right of free fishery in a public river was so unreasonable as to
be prohibited in future by Magna Charta, c. 16, 20, 47. [Mayor, &c., of Carlisle v.
Graham, L. R. 4 Ex. 361; Tinicum Fishing Co. v. Carter, 61 Penn. St. 21.]
(b) Com. Dig. tit. Prerogative, D. 50; Co. Litt. 4 b, 122 a; Hale, de Jure Maris,
c. 5; the case of the Royal Fishery of the Banne, Davies, 149; Smith v. Kemp, 2
Salk. 637; Carter v. Murcot, 4 Burr. 2162; Seymour v. Lord Courtenay, 5 id. 2814.
Mr. Angell, in his valuable Treatise on the Common Law in Relation to Water-
courses, 6-10, has collected the authorities on the question whether a several fishery
may exist without the property in the soil. The reason of the thing, and the weight
of authority, are in favor of the affirmative of the question; and he justly con-
cludes that property in watercourses may be subjected to every kind of restriction
by positive agreement. In Duke of Somerset v. Fogwell, 5 B. & C. 875, it was
declared, that in ordinary cases the owner of a several fishery was to be presumed to
be owner of the soil. He is, however, only prima facie owner of the soil. Parthe-
riche v. Mason, 2 Chitty, 658.
(c) See the discussions at the bar in Freary v. Cooke, 14 Mass. 488. Sir William
Blackstone says, that a free fishery is an exclusive right. Comm. ii. 39, 40. But in
Seymour v. Lord Courtenay, 5 Burr. 2814, Lord Mansfield declared that it was essen-
tial to a free fishery that more than one person should have a coextensive right in the
same subject. So, in Melvin v. Whiting, 7 Pick. 79, it was held, that a free fishery
was not an exclusive fishery.
(d) Harg, Co. Litt. lib. 2, No. 181.
(a) Benett v. Costar, 8 Taunt. 183.
[ 538 ]
LECT. LII.]
* 412
OF REAL PROPERTY.
the distinction. The more easy and intelligible arrangement of
the subject would seem to be, to divide the right of fishing into a
right common to all, and a right vested exclusively in one or a
few individuals.
same.
It was a settled principle of the common law, that the owners
of lands on the banks of fresh water rivers, above the ebbing and
flowing of the tide, had the exclusive right of fishing, as well as
the right of property opposite to their respective lands ad filum
medium aquæ; and where the lands on each side of the river
belonged to the same person, he had the same exclusive right of
fishery in the whole river, so far as his lands extended along the
The right exists in rivers of that description, though they
may be of the first magnitude, and navigable for rafts and boats,
but they are subjected to the jus publicum, as a common highway
or easement, for many navigable purposes. The common law, while
it acknowledged and protected the right of the owners of the
adjacent lands to the soil and water of the river, rendered that
right subordinate to the public convenience; and all erections
and impediments made by the owners, to the obstruction of the
free use of the river as a highway for boats and rafts, are deemed
nuisances. This right of fishery in rivers not navigable is also
subject to the qualification of not being so used as to injure the
private rights of others; and it does not extend to impede the
passage of fish up the river by means of dams or other obstruc-
tions. The impediment was at common law a nuisance,
and in Massachusetts it subjects * the party creating it to
a penalty given by statute. (a) Under these reasonable
qualifications, the right of private property in rivers was recog-
nized at common law in the earliest ages, and it has been uni-
formly admitted down to this day. (b) The law was laid down
very clearly and emphatically in the case of the river Banne, in
Ireland, (c) which is regarded as a leading case and a sound
* 412
(a) Weld v. Hornby, 7 East, 195; Commonwealth v. Chapin, 5 Pick. 199. The
regulation of fisheries within the jurisdiction of the several states is matter of statute
provision; and the laws of Connecticut, in particular, have been many and very spe-
cific on the subject. Statutes of Connecticut, 1838, pp. 269-285. But manufactur-
ing machinery, and steamboats, and the insatiable cupidity and skill of fishermen,
have prodigiously diminished the resort of the most valuable fish into the rivers of
the northern states.
(b) Hale, de Jure Maris, c. 1, cites a record in the K. B., as early as 18 and 19
Edward I., in which this rule was asserted. [Mayor, &c., of Carlisle v. Graham,
L. R. 4 Ex. 361.]
(c) Davies, 149.
[ 539 ]
413
[PART VI.
OF REAL PROPERTY.
authority; and the doctrine of that case was, that a subject
might have a several freehold interest in a navigable river or tide
water, by special grant from the crown, but not otherwise; and that
without such grant, or prescription, which is evidence of a grant,
the right of fishing was common. On the other hand it was held,
that in rivers not navigable (and in the common law sense of the
term, those only were deemed navigable in which the tide ebbed
and flowed), the owners of the soil on each side had the interest
and the right of fishery; and it was an exclusive right, and
extended to the centre of the stream opposite their respective
lands. This case was followed by that of Carter v. Murcot (d)
in which the K. B. recognized that doctrine in its fullest extent;
and Sir Matthew Hale, in his treatise De Jure Maris, (e) has not
only laid down the same propositions, but he has discussed the
subject with great and accurate learning, and it has become a
text book of the highest authority.
This private right of fishery is confined to fresh water rivers,
unless a special grant or prescription be shown; and the right
of fishing in the sea, and in the bays and arms of the sea,
and in navigable or tide waters, under the free and
*413 *masculine genius of the English common law, is a right
public and common to every person; and if any individ-
ual will appropriate an exclusive privilege in navigable waters
and arms of the sea, he must show it strictly by grant or prescrip-
tion. (a)¹
1 The common right of fishing in navigable waters is
(d) 4 Burr. 2162.
(e) Harg. Law Tracts, art. 1.
(a) Hale, de Jure Maris, c. 4; Sir Matthew Hale, in Lord Fitzwalter's Case, 1
Mod. 105; Warren v. Matthews, 1 Salk. 357; 6 Mod. 73; Ward v. Creswell, Willes,
265; The Mayor, &c., of Oxford v. Richardson, 4 T. R. 437; Carter v. Murcot, 4
Burr. 2162; Parker v. The Cutler M. Co., 20 Me. 353.
1 Riparian Proprietors.— (a) Right of
Fishery. The riparian owner's exclusive
right of fishing in English fresh water
rivers, and the public right of fishing in
tidal waters, are said to depend upon the
existence of a proprietorship in the soil of
the private river by the private owner,
and by the sovereign in a public river
respectively. Murphy v. Ryan, 2 Ir. Rep.
C. L. 143, 149; Mayor, &c., of Carlisle v.
Graham, L. R. 4 Ex. 361, 368. In the
first cited case the ownership of the
sovereign was said not to extend beyond
the ebb and flow of the tide, although the
river was navigable beyond that point;
and on that ground, inasmuch as a custom
that the public should have profit à prendre
in private soil could not legally exist, it
was held that the public could not acquire
by immemorial usage any right of fishing
in a navigable river above the ebb and
flow of the tide. See Cobb v. Davenport,
4 Vroom (33 N. J.), 223. In the second
it was held that a several fishery in a tidal
[540]
LECT. LII.]
* 413
OF REAL PROPERTY.
founded on such plain principles of natural law, that it is con-
sidered by many jurists as part of the law of nations. The civil
law declared, that the right of fishing in rivers, as well as in the
sea and ports, was common; and in some respects it went beyond
the common law, for it held, that all rivers where the flow of water
was perennial, belonged wholly to the public, and carried with it
the right of fishery, as well as the public use of the banks. (b)
Bracton adopted the doctrine of the civil law, and held, (c) that
the right of fishing in rivers, and the use of the banks, was com-
(b) Inst. 2. 1. 2; Dig. 43, tit. 12, 13, 14, 15.
(c) B. 1, c. 12, sec. 6.
river which had permanently changed its
channel could not be followed from the
old into the new channel.
In Massachusetts it is said that the
right of fishing and taking clams in the
sea or rivers in any town in the Common-
wealth is a public right belonging to all
the inhabitants of the town, unless re-
stricted by acts of the legislature, &c.;
and that it is not incident to the right of
property in the soil, but is unaffected by
the question whether the title in the land
under the water is in the Commonwealth,
in the town, or in private persons. Proc-
tor v. Wells, 103 Mass. 216; Weston v.
Sampson, 8 Cush. 347. It is consistent
with this that the ownership of the land
between high and low water mark by
private riparian proprietors should be
held subject to the public rights; post,
430; Boston v. Richardson, 105 Mass.
351, 354; Tinicum Fishing Co. v. Carter,
61 Penn. St. 21; post, 427, n.(d); iv. 441.n.1.
See, as to planted beds of oysters, post,
418, n. (c); Lowndes v. Dickerson, 34
Barb. 586.
(b) Encroachments. It has been held
by the House of Lords, on a Scotch appeal,
but upon general grounds of policy, that
an encroachment by a riparian proprietor
upon the alveus of a running stream can
be complained of by the opposite owner
without the necessity of proving either
that damage has been or is likely to be
sustained from that cause. Bickett v.
Morris, L. R. 1 H. L. Sc. 47. And the
same rule is applied to a tidal navigable
river, although it would be otherwise of
works erected upon the sea shore. At-
torney General v. Lonsdale, L. R. 7 Eq.
377. But see Harvard College v. Stearns,
15 Gray, 1.
(c) Navigable Waters. Cases which
deny the existence of any peculiar privi-
leges as appurtenant to the bank of navi-
gable water where the tide ebbs and flows,
with the exception of alluvion and derelic-
tion, are Stevens v. Paterson & Newark
R.R. Co., 5 Vroom (34 N. J.), 532.
Gould v. Hudson R. R.R. (2 Seld.) 6 N.
Y. 522. The same decision has been
made in the case of owners on the banks
of the Mississippi, in a state where the fee
of the river bed, below ordinary high
water mark, is held to be in the state for
the use of the public. Tomlin v. Du-
buque, Bellevue, & Miss. R.R., 32 Iowa,
106. But able dissenting opinions were
delivered in all of these cases, and in
Yates v. Milwaukee, 10 Wall. 497, the
riparian right is said to be one of which,
when once vested, the owner can only be
deprived in accordance with established
law, and, if necessarily taken for the pub-
lic good, upon due compensation. It in-
cludes access to the navigable part of the
stream and the right to make a wharf,
subject to the rights of the public.
See, generally, Tinicum Fishing Co.
v. Carter, 61 Penn. St. 21; Moulton v.
Libbey, 37 Me. 472.
[541]
* 414
[PART VI.
OF REAL PROPERTY.
*
mon jure gentium. But it is everywhere agreed, that this common
right is liable to be modified and controlled by the municipal law
of the land, and no person has a right to pass over the lands of
others in order to get to the water. In Blundell v. Catterall, (d)
which called forth a very elaborate and learned discussion, the
doctrine of the civil law, as stated by Bracton, was disclaimed, and
it was held, that the public had no common law right of crossing
the beach or sea shore, for the purpose of bathing in the sea, as
against the lord of a manor who was owner of the soil of the
shore, and had the exclusive right of fishing therein. So, also,
in France, before the Revolution, the right of fishing in naviga-
ble and not navigable rivers, was not common to all the
* 414 subjects, but belonged to the king, and such individuals
as under him possessed jurisdictional rights. (a) The
Napoleon code was formed upon the ruins of seigneurial and
feudal rights, and it is declared, that rivers, and navigable or
floatable streams, shores, and land between high and low water
mark, were considered as dependencies of the public domain, and
that the right of fishing was under the regulation of particular
laws. (b) It is now understood, that the owners of the lands on
rivers not navigable or floatable (flottables) have the exclusive
right of fishing therein, as well as the exclusive ownership of the
soil composing the bed of the river. Though some communes.
attempted to appropriate that right to themselves, the claim was
put down by decrees, and on the principle that the abolition of
feudal rights, of which the right of fishing was one, was for the
benefit, not of the communes, but of the feudal vassals, who had
become free in their persons and property, and that there no
longer existed any seigneurial rights. (c)
The English doctrine as to navigable rivers, and the common
right as to the use thereof, and as to the right of fishing as well as
to the right to the soil, in rivers not navigable, in the common law
(d) 5 B. & Ald. 268.
(a) Inst. Droit Français, par Argou, i. 214; Pothier, Traité du Droit de Pro-
prieté, n. 52.
(b) Code Napoleon, n. 538, 715.
(c) Toullier's Droit Civil Français, iii. n. 144, 145, 146; Questions de Droit,
par Merlin, vi. tit. Pêche. The latter author has collected the ancient authorities in
support of the seigneurial exclusive right of fishery in all streams not navigable, and
the several decrees of the revolutionary governments abolishing those feudal and
odious rights.
[ 542 ]
LECT. LII.]
* 416
OF REAL PROPERTY.
sense of the term, have been declared to be the law in several
of the United States. (d) The legislature of * New York, *415
when they reenacted, in 1787, all the British statutes that
were deemed applicable to our situation, considered a common of
fishery as an existing right, for they provided the writ of novel
disseisin for the disturbance of it. (a) So, a franchise of a several
fishery at a particular place in a public river, has been admitted
to exist, and an instance of such a grant was mentioned in the
case of Stoughton v. Baker. (b) The statute law of the colony of
Massachusetts made some alterations in the common law. Each
town might appropriate the right of free fishing in navigable rivers,
within the town, and the right of free fishing was confined to
householders. The legislature likewise assumed the regulation
of the passage and protection of fish in streams not navigable, in
the technical sense; and it is now considered that fisheries are,
as at common law, the exclusive right of the owners of the banks
of rivers not navigable, unless otherwise appropriated by statute,
and the right, unless secured by a particular grant or prescription,
is held subject to legislative control. (c) The New York Revised
Statutes (d) have also deemed the regulation of fisheries, in waters
navigable or not navigable, a matter of public concern; and they
have regulated the time and mode of fishing in the waters of the
state, and particularly in respect to certain kinds of fish, and in
the waters of the upper Hudson. The courts of Common Pleas
in each county have likewise the authority, under certain checks
and restrictions, to regulate the fishing in any of the
* streams, ponds, or lakes in their respective counties, and *416
to prevent the destruction of the fish therein. In Jacobson
(d) The People v. Platt, 17 Johns. 195; Hooker v. Cummings, 20 id. 90; Ex parte
Jennings, 6 Cowen, 518; Berry v. Carle, 3 Greenl. 269; Scott v. Wilson, 3 N. H.
321; Commonwealth v. Charlestown, 1 Pick. 180; Adams v. Pease, 2 Conn. 481;
Arnold v. Mundy, 1 Halst. 1; Dane's Abr. ii. 692, sec. 13; Browne v. Kennedy, 5
Ilar. & J. 195.
(a) Laws of New York, 10th sess. c. 50, sec. 7.
(b) 4 Mass. 527.
(c) Nickerson v. Brackett, 10 Mass. 212, 216; Waters v. Lilley, 4 Pick. 145;
Ingraham v. Wilkinson, ib. 268; Vinton v. Welsh, 9 id. 87; Cottrill v. Myrick, 3
Fairf. 222, 229; Lunt v. Hunter, 16 Me. 1; Dane's Abr. ii. 688-712, or c. 68. In that
chapter Mr. Dane has diligently collected the English and American authorities
applicable to the subject. [See Moulton v. Libbey, 37 Me. 472; Preble v. Brown, 47
Me. 284; Proctor v. Wells, 103 Mass. 216; Weston v. Sampson, 8 Cush. 347.]
(d) Vol. i. 687, 688.
[ 543 ]
* 417
[PART VI.
OF REAL PROPERTY.
v. Fountain, and afterwards, in Gould v. James, (a) it was con-
sidered that a person might, by grant or prescription, have an
exclusive right to fishery, even in an arm of the sea, or in a navi-
gable river, where the tide ebbed and flowed; and in New Jersey,
the right of several fishery has been attempted to be carried beyond
the rule of the common law. The doctrine asserted was, that, in
that state, the whole of the soil under its navigable and tide
waters, is individual and not public property, and that it passed
in fee simple from the original proprietors under the royal patents
to the present occupiers and grantees. The title was originally
in the king, by right of discovery, according to the public law of
Europe; and, it is said, he was competent to convey, and did
convey the soil in New Jersey, as well under navigable waters as
elsewhere, to the Duke of York, and by him it was conveyed to
Sir George Carteret and the representatives of Lord Berkeley,
and from them the title passed, and has been regularly trans-
mitted to the present owners of lands on the navigable waters of
the state. Upon that broad foundation it was maintained, that
the proprietors of land on rivers and waters, navigable as well as
not navigable, had immemorially claimed and exercised the right
to the soil, and to a several fishery in all waters within the state
in front of their lands and shores, subject, nevertheless, to the
jus publicum, or use of the same, as a public highway for all
navigable purposes, and also subject to the regulations of the legis-
lature for the passage and protection of fish. (6) But whatever
force might have been due to such an opinion, if the question
was res integra, the law is now declared, after a very profound
and exhausting forensic discussion, to be, that there is no
* 417 several fishery in the *navigable waters of New Jersey,
but the same is common to all the people of the state. (a)
(a) 2 Johns. 170; 6 Cowen, 369; Rogers v. Jones, 1 Wend. 237, s. p.
(b) Griffith's Register, tit. New Jersey, art. Fisheries.
(a) Arnold v. Mundy, 1 Halst. 1; [Den v. Jersey Co., 15 How. 426; Stevens v.
Paterson & Newark R.R., 5 Vroom (34 N. J.), 532;] Martin v. Waddell, 16 Peters,
[367,] 8. P. In this last case it was adjudged, that the property in the oyster
fisheries, in the public rivers and bays in East New Jersey was vested in the state
by the Revolution in 1776, as succeeding in that respect to the prerogatives and
regalities which belonged to the crown, and was afterwards vested in the grantees
under the act of New Jersey, in 1824. The legislature of New Jersey, by act of 1826,
have declared it to be unlawful for any persons, not resident citizens of the state, to
use any net or seine, for the purpose of taking fish, in any of the rivers or waters
within the jurisdiction of the state. Elmer's Dig. 205. But Pennsylvania and New
[544]
LECT. LII.]
418
OF REAL PROPERTY.
Though the right of fishery in a navigable river be a common
right, the adjoining proprietors have the exclusive right to draw
the seine and take fish on their own lands; and if an island or a
rock, in tide waters, be private property, no person but the owner
has the right to use it for the purpose of fishing. (b) It has been
further decided, that though the sea shore, between high and low
water mark, be held by grant as private property, the common
right still exists to go there and fish, and even to dig and take
shell fish; and if the owner of the soil claims an exclusive right,
he must show a prescription for it controlling the general right at
common law. (c)
In Pennsylvania, the English doctrine that no rivers are deemed
navigable, so as to give the common right of fishing, except those
where the tide ebbs and flows, has been held not to be applicable
to the great rivers in that state; and the owners of land on the
banks of such rivers as the Susquehannah and Delaware, for
instance, so far up as they have a capacity for public use as
commercial highways, have no exclusive right* of fishing *418
in the rivers opposite their respective lands. The right to
fisheries in such rivers is declared to be vested in the state, and
open to all the world; (a) and a similar exception to the rule of
the common law has been suggested to exist in North and South
Carolina. (b)
Jersey have, by mutual arrangement, concurrent jurisdiction over the waters of the
river Delaware, to a certain extent, and the exercise of the right of fishery is exer-
cised in conformity to such arrangements. See act of New Jersey, of 26th November,
1808; Elmer's Dig. 199. In Maryland it is also declared, that the king, before the
Revolution, had the right to grant lands covered by navigable waters, subject to
the right of the public to fish and navigate them; and that this right, subject to the
restriction, passed to the proprietors of Maryland by the royal grant, and that the
right was then vested in the state. Browne v. Kennedy, 5 Harr. & J. 195. [Chapmau
v. Hoskins, 2 Md. Ch. 485.] In Mr. Angell's Treatise on the Right of Property in
Tide Waters, c. 7, he has shown that a right of several fishery in navigable waters in
front of their lands, may and does exist in individuals, by usage, in several of the
states.
(b) Lay v. King, 5 Day, 72; The Commonwealth v. Shaw, 14 Serg. & R. 9.
(c) Bagott v. Orr, 2 Bos. & P. 472; Peck v. Lockwood, 5 Day, 22. But the case
of Bagott v. Orr may be considered as shaken by that of Blundell v. Catterall, 5 B.
& Ald. 268; and the doctrine in Peck v. Lockwood seems to be very questionable.
[See Moulton v. Libbey, 37 Me. 472; Preble v. Brown, 47 Me. 284; Weston v. Samp-
son, 8 Cush. 347.]
(a) Carson v. Blazer, 2 Binney, 475; Shrunk v. The President, &c. of the Schuyt-
kill Navigation Company, 14 Serg. & R. 71. [See Tinicum Fishing Co. v. Carter, 61
Penn. St. 21.]
(b) Cates v. Wadlington, 1 M'Cord, 580; Collins v. Benbury, 3 Ired. (N. C.) 277
VOL. III.
35
[ 545]
* 419
[PART VI.
OF REAL PROPERTY.
The conclusion on this subject is, that a right of fishery in
navigable or tide waters, below high water mark, is a common
right; and if one or more individuals set up an exclusive right
to a free or several fishery, it must be clearly shown by prescrip-
tion or positive grant. (c) In rivers and streams not navigable
as tide waters, the owners of the soil over which they flow have,
at common law, (and which common law has been generally
recognized in these United States,) the exclusive right of fishing
each on his own side, unless some other person can show a grant
or prescription for a common of piscary, in derogation of the
right naturally attached to the ownership of the soil; and such
right is held subject to the public use of the water as a high-
way, and to the free passage of fish, and in subordination to the
regulations to be prescribed by the legislature for the general
good.
(3) Of the Remedy for the Disturbance of these Rights. The
disturbance of a right of common of pasture arises when a per-
son who has no right interferes by putting in his cattle, or if he
has a right to use the land for commonable cattle, by putting in
those which are not commonable, or by surcharging the common
by putting in more cattle than the pasture will sustain. In these
cases, the owner of the soil has his action of trespass, and the
commoner his special action upon the case, inasmuch as both the
owner of the land and the owner of the right of common are
injured. The common law gave to the commoner a writ of
admeasurement of pasture, under which process a jury,
* 419 with the *sheriff, apportioned the quantity of cattle to
the extent of the ground and the number of proprietors.
So, also, if the commoner be disseised, either of the common of
pasture, of estovers, or of fishery, he may have, where statute
regulations have not prevented it, a writ of novel disseisin to rein-
In this last case it was declared, that no general or exclusive right of fishery existed
in the navigable waters of that state, and a navigable stream existed when the waters
were sufficient in fact to afford a common passage for people in sea vessels.
(c) Palmer v. Hicks, 6 Johns. 133; Rogers v. Jones, 1 Wend. 237; Delaware & M.
R.R. Co. v. Stump, 8 Gill & J. 479. But if an individual plant a bed of oysters in a
bay, or an arm of the sea, and clearly designate and mark out the bed by stakes, it
is not an interference with the common right of fishing in the bay, but the person who
planted the oyster bed so designated acquired a qualified property in them sufficient
to maintain trespass against any person who invaded that property. Fleet v. Hegeman,
14 Wend. 42; [Decker v. Fisher, 4 Barb. 592; Lowndes v. Dickerson, 34 Barb. 586.
But see Brinckerhoff v. Starkins, 11 Barb. 248.]
[ 546 ]
LECT. LII.]
* 419
OF REAL PROPERTY.
state himself in the possession. Such injuries are now generally
redressed by the more familiar and easy remedy of an action upon
the case; and the mention of those old and obsolete actions in
the first revision of the statute laws of New York, in 1787 (a),
arose from the circumstance that the statute of Westminster 2,
13 Edward I., was literally transcribed. But the New York
Revised Statutes, which went into operation in 1830, have abol-
ished the writ of novel disseisin, and all the other real actions;
and the remedy for a violation of these incorporeal rights is either
by an action of ejectment, or a special action on the case, accord-
ing to the nature of the right and injury. The substitution of
the action of ejectment for the possessory real actions has been
effected also by statute in New Jersey, and probably the ancient
remedies have been superseded in most of the states in the Union
by more convenient and familiar actions.
2. Of Easements and Aquatic Rights. - Under the head of ease-
ments may be included all those privileges which the public, or
the owner of neighboring lands or tenements, hath in the lands
of another, and by which the servient owner, upon whom the
burden of the privilege is imposed, is obliged to suffer, or not to
do something on his own land, for the advantage of the public,
or of the dominant owner to whom the privilege belongs. These
easements are incorporeal rights, and imposed upon corporeal
property for the benefit of the public, or of other corporeal prop-
erty; and I shall, in the remainder of this lecture, treat at large
of the various kinds and modifications of easements and of
aquatic rights, into which the subject may be subdivided.¹
•
(a) Laws of New York, sess. 10, c. 4, sec. 6, and c. 50, sec. 7.
1 Easements. — A. Essential Qualities.
(a) Dominant Estate.—Mr. Gale thinks
(Easem. 5) that there must be a dominant
tenement, and this view is favored by
Mounsey v. Ismay, 3 H. & C. 486, 497;
Shuttleworth v. Le Fleming, 19 C. B. N. s.
687, 710; Güterb. Bract. ch. 15; Aust.
Jur. lect. 49, 50. In Rangeley v. Mid-
land R. Co., L. R. 3 Ch. 306, post, 432,
n. 1, it is said, "a public road or highway
is not an easement." But see the editor's
note, (d), Gale on Easem. 4th ed. 11, and
Dyce v. Lady Hay, 1 MacQ. (H. L. Sc.)
305, 312. A right of drawing water from
a spring by means of an aqueduct may
be reserved in gross, Goodrich v. Bur-
bank, 12 Allen, 459; but Mr. Washburn
(Easem. 10) thinks this a case of profit à
prendre.
(b) It has been said to be of the essence
of one easement, at least, the servitus
aquæ ducendo, that it exists for the sake
of the dominant tenement alone, so that
its exercise by the dominant owner cannot
operate to create a new right for the
benefit of the servient owner. Mason v.
Shrewsbury & Hereford R. Co., L. R. 6
Q. B. 578, 587. But see Ford v. Whitlock,
[ 547]
*419
[PART VI.
OF REAL PROPERTY.
(1) Of Ways. - This incorporeal hereditament is a right of
private passage over another man's ground. It may arise either
27 Vt. 265, where a principle analogous
to that of dedication was applied.
(c) A Servitude consists in patiendo.
The principle of the Roman law was that
a servitude never imposed an active duty,
but only a duty to suffer or abstain from
doing something. Servitutium non ea
natura est, ut aliquid faciat quis (veluti
viridia tollat, aut amœniorem prospectum
præstet, aut in hoc ut in suo pingat);
sed ut aliquid patiatur, aut non faciat. D.
8. 1. 15, § 1. This is generally so, as a
fact, in the English law, and it is thought
to be so on principle in 2 Austin Jurisp.
lect. 49, 3d ed. 840-842. What has been
called a spurious easement, obliging an
owner to keep his fences in repair, has
been recognized by the cases to the extent
of holding that the servient owner's failure
to repair them rendered him liable for
any injury which the adjoining owner's
cattle might sustain in consequence. Gale
on Easem. 4th ed. 460. But it is hard to
find a case in which duties to do positive
acts are imposed on the owner of one
estate for the benefit of the owner of
another, simply by reason of the former's
occupation of the servient premises, and
apart from a contract either made by
himself, or to the burden of which he
succeeds by the peculiar notion of privity.
An attempt to explain the historical origin
of this fiction will be found in an article,
which has already been referred to, in
7 Am. Law Rev. 49 et seq. See, also, iv.
441, n. 1. In general it is supposed that
the duty of the servient owner is the same
as that of third persons in point of law,
viz., to abstain from interfering with a
right in rem, although it is more onerous
in point of fact, by reason of his occupa-
tion of the land. See D. 43. 19. 3, § 5;
Saxby v. Manchester, Sheffield, &c., R.
Co., L. R. 4 C. P. 198. But see Lawrence
v. Jenkins, L. R. 8 Q. B. 274.
principle which is important in this con-
nection is that incidents of a novel kind
cannot be devised and attached to prop-
erty at the fancy or caprice of any owner.
A person may bind himself by covenant
to allow any right he pleases over his own
property, but he cannot create a new
species of incorporeal hereditament so as
to enable the party entitled to it to sue
third persons in his own name for inter-
fering with it, or, it seems, so as to bind
the land in the hands of an assignee
Keppell v. Bailey, 2 My. & K. 517, 535.
See Hill v. Tupper, 2 H. & C. 121; Stock-
port Waterworks Co. v. Potter, 3 H. & C.
300; Richards v Harper, 35 L. J. N. s. Ex.
130; L. R. 1 Ex. 199; Nuttall v. Brace-
well, L. R. 2 Ex. 1; Ackroyd v. Smith,
10 C. B. 164, 187, 188; Ellis v. Bridgnorth,
15 C. B. n. s. 52, 78.
See iv. 480, n. 1.
By Implication. –
H. & N. 916, the
B. Creation. - (a)
In Pyer v. Carter, 1
owner of two houses conveyed one of
them to the defendant without reservation,
and some time afterwards conveyed the
other to the plaintiff. The plaintiff's
house was drained by a drain that ran
under the other house, as the defendant
might have been led to find out by a care-
ful examination of the premises, but did
not in fact know. A new drain over the
plaintiff's land only could have been built
for about £6, but the plaintiff was held
entitled to an easement. This case has
been denied by others of equal weight;
and there is considerable authority for
the proposition that no easement, although
apparent and continuous, at least if not
in existence before the unity of possession,
will be taken to have been reserved by
implication, unless it is necessary in a
strict sense. Suffield v. Brown, 10 Jur.
N. s. 111; s. c. 33 L. J. N. 8. Ch. 249;
Carbrey v. Willis, 7 Allen, 364; Davies
v. Sear, L. R. 7 Eq. 427; Crossley v.
(d) New Kinds of Easements. - Another Lightowler, L. R. 2 Ch. 478, 486; Potts
[ 548 ]
LECT. LII.]
* 419
OF REAL PROPERTY.
by grant of the owner of the soil, or by prescription, which sup-
poses a grant, or from necessity. (b) If it be a freehold right, it
(b) 1 Rol. Abr. 391, tit. Chimin private, 10. A right of way, public or private, is
held to be an incorporeal hereditament. Nelson, J., 12 Wend. 98; Holman, J., 1
Blackf. 45; Cowen, J., 20 Wend. 99; Mr. J. Cowen says, a public way, if not an
hereditament in every sense, is certainly a quasi hereditament. [See n. 1, A. (a).]
v. Smith, L. R. 6 Eq. 311; Oliver v. Pit-
man, 98 Mass. 46; Warren v. Blake, 54
Me. 276; Brakely v. Sharp, 1 Stockt. N.
J. 9, 18; see Richards v. Rose, 9 Exch. 218;
White v. Bass, 7 H. & N. 722; Eno v.
Del Vecchio, 6 Duer, 17. As to implied
reservation of a way of necessity, see
424, n. 1. It is hardly clear whether as
strict a rule would be applied against
easements by implied grant. It was in
Potts v. Smith, L. R. 6 Eq. 311; Morrison
v. Marquardt, 24 Iowa, 35, 60, cases of
light and air; (see Haverstick v. Sipe, 33
Penn. St. 368; Mullen v. Stricker, 19
Ohio St. 135;) and in Dodd v. Burchell, 1
H. & C. 113, a case of a way. See Ken-
yon v. Nichols, 1 R. I. 411; Screven v.
Gregorie, 8 Rich. (S. C.) 158. So in
some cases where both estates were con-
veyed at the same time; Randall v.
McLaughlin, 10 Allen, 366; Warren v.
Blake, 54 Me. 276; Mullen v. Stricker,
19 Ohio St. 135; when the easement
was not apparent, Butterworth v. Craw-
ford, 46 N. Y. 349. But it has been said
rather than decided that an easement may
pass by implication with the dominant
estate when it would not have been taken
to have been reserved had the quasi
servient estate been conveyed. Johnson
v. Jorlan, 2 Met. 234, 240; Carbrey v.
Willis, 7 Allen, 364, 368; Leonard v.
Leonard, ib. 277, 283; Parker v. Bennett,
11 Allen, 388. See Suffield v. Brown,
Brakely v. Sharp, sup.
But Pyer v Carter has been referred
to with approval by some American cases
more or less different from it in the precise
point involved. Fetters v. Humphreys, 3
C. E. Green, 260, 263; Seymour v. Lewis,
2 Beasl. 439; Janes v. Jenkins, 34 Md. 1;
Butterworth v. Crawford, 3 Daly, 57; see
Washb. Easem. 44 et seq.; Morland v.
Cook, L. R. 6 Eq. 252, 265. And in
Watts v. Kelson, L. R. 6 Ch. 166, 171,
both the Lords Justices thought that it
was rightly decided, and Mellish, L. J.,
said that most of the judges had not ap-
proved of Lord Westbury's observations
on it in Suffield v. Brown, and that he
thought the order of the two conveyances
in point of date was immaterial.
If the way, in the case stated from
Staples v. Heydon, text, 420, were ill de-
fined, and had not existed before the unity
of possession, and were not a way of neces-
sity, it certainly would not have passed.
Thomson v. Waterlow, L. R. 6 Eq. 36;
Langley v. Hammond, L. R. 3 Ex. 161.
But in the latter case, Bramwell, B.,
doubted whether it would not have
passed if it had been well defined, and
apparent, although not a way of necessity;
and on this principle, when, during the
unity of possession, conduit pipes were
laid down from one estate to the other,
the purchaser of the latter was held to
acquire an easement. Watts v. Kelson,
sup. Even an easement of light for cer-
tain windows over the grantor's adjoining
land was thought to have passed without
express words in Janes v. Jenkins, 34
Md. 1, contrary to the cases cited above.
The same distinction has been acted on
in several cases where both estates were
conveyed at the same time. Phillips
v. Phillips, 48 Penn. St. 178; McCarty v.
Kitchenman, 47 Penn. St. 239; Worth-
ington v. Gimson, 2 El. & El. 618; Polden
v. Bastard, 4 Best & S. 258; s. c. L. R. 1
Q. B. 156, 161; Curtiss v. Ayrault, 47 N.
Y. 73. See Pearson v. Spencer, 3 Best &
[549]
* 420
[PART VI.
OF REAL PROPERTY.
must be created by deed, though it be only an easement upon the
land of another, and not an interest in the land itself. (c) A
right of way ex vi termini imports a right of passing in a particu-
lar line, and not the right to vary it at pleasure, and go in differ-
ent directions. This would be an inconvenience to the owner
of the land charged with the easement, and an abuse of
*420 the right. (d) It is likewise a principle of law, *that
nothing passes as incident to the grant of an easement,
but what is requisite to the fair enjoyment of the privilege. (a)
If it be a right of way in gross, or a mere personal right, it can-
not be assigned to any other person, nor transmitted by descent.
It dies with the person, and it is so exclusively personal, that the
owner of the right cannot take another person in company with
him. (b) But when a right of way is appendant or annexed to
an estate, it may pass by assignment when the land is sold to
(c) Hewlins v. Shippam, 5 B. & C. 221.
(d) Jones v. Percival, 5 Pick. 485. [Jennison v. Walker, 11 Gray, 423, 426. See
Bannon v. Angier, 2 Allen, 128.]
(a) Lyman v. Arnold, 5 Mason, 195. These prescriptive rights are stricti juris. A
right of way for one purpose does not necessarily include a right of way for another
purpose. The extent of the right must depend upon the circumstances. Ballard v.
Dyson, 1 Taunt. 279; Cowling v. Higginson, 4 M. & W. 245. [Dare v. Heathcote, 25
L. J. N. s. Ex. 245; 36 Eng. L. & Eq. 564. See Hawkins v. Carbines, 27 L. J. N. S.
Ex. 44; 3 H. & N. (Am. ed.) 914.]
(b) Finch's Law, 17, 31; Year Book, 7 H. 4, 36, B.
phreys, 3 C. E. Green (18 N. J. Eq.),
260, 263. It may be doubted if this was
the proper ground of decision in the first
case, however.
S. 761; s. c. 1 B. & S. 571; Huttemeier v.
Albro, 18 N. Y. 48, 52; Lampman v.
Milks, 21 N. Y. 505. Most of the above
cases also adopt the distinction between
continuous easements and those which are
As a general rule easements which are
used only from time to time, and lay it appurtenant pass without express men-
down that the former will pass by im- tion. Brown v. Thissell, 6 Cush. 254.
plication without words of grant. In But the mention of appurtenances may
Lampman v. Milks it was said that sometimes be important. Ammidown v.
when the owner of land by an artificial Ball, 8 Allen, 293. See Langley v. Ham-
arrangement has effected an advantage mond, L. R. 3 Ex. 161; Thomson v.
for one portion, to the burdening of the Waterlow, L. R. 6 Eq. 36; Dobby: n
other, upon a severance of the ownership Somers, 13 Ir. Com. L. 293.
the holders of the two portions take them Pope v. O'Hara, 48 N. Y. 446, 455.
respectively charged with the servitude,
and entitled to the benefits openly and
visibly attached at the time of the con-
veyance of the portion first granted; and
this is cited with approval in Curtiss v.
Ayrault, 47 N. Y. 73, 79; Fetters v. Hum-
But see
(b) As to easements by prescription,
see 445, n. 1. As to the extent of ease-
ments or what amounts to an infringe-
ment, see 448, n. 1. The subjects of
dedication, extinguishment, license, &c.,
will also be treated farther on.
[ 550 ]
LECT. LII.]
* 421
OF REAL PROPERTY.
which it was appurtenant. Thus, in the case stated in Staples
v. Heydon, (c) if one be seised of lot A. and lot B., and he used
a way from lot A. over lot B. to mill or to a river, and he sells
lot A., with all ways and easements, the grantee shall have the
same privilege of passing over lot B. that the grantor had.
A right of way may arise from necessity in several respects.
Thus, if a man sells land to another which is wholly surrounded
by his own land, in this case the purchaser is entitled to a right
of way over the other's ground to arrive at his own land. The
way is a necessary incident to the grant, and without which the
grant would be useless. (d) This principle was carried so far, in
a modern case, (e) as to be applied to a trustee selling land he
held in trust, and to which there was no access but over the trus-
tee's own land. The right of way in that case passed of neces-
sity as incidental to the grant; for though he conveyed in the
character of trustee, it could not be intended that he meant to
make a void grant, and every deed must be taken most strongly
against the grantor. Lord Kenyon said it was impossible to dis-
tinguish that from the ordinary case where a man granted a close
surrounded by his own land. The general rule is, that
when the use of * a thing is granted, every thing is granted *421
by which the grantee may have and enjoy such use. (a)
If one man gives another a license to lay pipes of lead in his land
to convey water to a cistern, he may enter on the land and dig
therein to mend the pipes. (b) So, if a person has a shop on
another's soil by permission, he has a right of ingress and egress
as to the soil between the highway and the shop. The right is
necessary to the enjoyment of the tenement. (c) The maxim is,
(c) 6 Mod. 3; 2 Ld. Raym. 922; Newmarch v. Brandling, 3 Swanst. 99, s. c.
(d) Finch's Law, 63; Clark v. Cogge, Cro. Jac. 170; Oldfield's case, Noy, 123;
Turnbull v. Rivers, 3 M'Cord, 131; Holmes v. Seely, 19 Wend. 507; Nichols v.
Luce, 24 Pick. 104. All the authorities support the doctrine, says Mr. Woolrych, in
his full and accurate Treatise on the Law of Ways, 21, that in the case of a grant of
land without a reservation of any way, a way of necessity will pass as incident to the
grant.
(e) Howton v. Frearson, 8 T. R. 50.
(b) Twysden, J., in Pomfret v. Ricroft, 1 Saund. 321.
(a) Co. Litt. 56.
(c) Doty v. Gorham, 5 Pick. 487. In Chambers v. Furry, 1 Yeates, 167, the
Supreme Court of Pennsylvania held, that the owner of a ferry over a navigable
stream had no right to land or receive freight on the adjoining banks, even though
the landing place was a public highway, without the owner's consent. The dedication
of ground for the purpose of a public road was said to give no right to use it for the
other purpose. This doctrine was afterwards referred to, recognized, and adopted by
[ 551 ]
* 421
[PART VI.
OF REAL PROPERTY.
that quando aliquis aliquid concedit, concedere videtur et id sine
quo res uti non potest.¹
the same court, in Cooper v. Smith, 9 Serg. & R. 26. The same principle is to be
found in Savile, 11, pl. 29, where it is said, that in every ferry the land on both sides
the water ought to belong to the owner of the ferry, for otherwise he could not land
on the other side. But this strict and severe rule is somewhat relaxed in England;
and in Peter v. Kendal, 6 B. & C. 703, the K. B. denied the justness of the conclusion
in Savile, and held, that the owner of a ferry need not have the property in the soil
on either side. It was sufficient that the landing place was a public highway. It was
a right incident to the ferry, to use such a landing place for the purposes of a ferry.
This is the most reasonable conclusion upon the right to the use of a public highway
to which a ferry is connected.
In Allen v. Farnsworth, 5 Yerg. 189, it was held, that the state, by virtue of the
right of eminent domain, might establish ferries wherever the legislature should deem
them necessary for the public easement, without any regard to the ownership of the
soil, on making just compensation. But in point of fact all the statutes authorized
the grant of the franchise by way of preference to the owners of the land on each
bank of the river where the ferry was established. So, by statute in New York, the
owner of the land through which the highway adjoining to the ferry runs, is first
entitled to the license for keeping a ferry. N. Y. R. S. 3d ed. i. 642. By the Ten-
nessee act of 1807, c. 25, the owner of the soil on each side of a river is, in exclusion
of all others, entitled to the ferry. Without statute provision he is not, as a matter
of right, and because he is owner, entitled to keep it. Nashville Bridge Company v.
Shelby, 10 Yerg. 280. The case of Pipkin v. Wynns, 2 Dev. (N. C.) 403, recognizes
the same general right of the sovereign, but holds that the owner of the adjacent
land is entitled to the preference, and if he refuses to exercise the franchise, it may be
granted to another, on making compensation to the owner of the fee for the use of the
soil, and this must be done, although there be a public highway leading to the river
on both sides. This decision, like those in Pennsylvania, construes more strictly than
the late English case the easement of a public highway leading to the river. The
law in Kentucky in respect to ferries is, that the owner of land on the river Ohio is
alone entitled to be the grantee of a ferry across it. It is a franchise incident to the
land, and is valuable property. But no ferry is to be granted within a mile and a
half of one previously established, unless, in the opinion of the granting power, the
public interest shall require it, and the abuse of that discretion is subject to judicial
control. Carter v. Kalfus, 6 Dana, 43. Though a ferry franchise be a statutory inci-
dent to land, yet the beneficial interest may be transferred to another, and entitle him
to the profits. Kennedy v. Covington, 8 Dana, 59. The statute provision in some of
the western states is, that no person shall keep a ferry so as to demand and receive
pay, without a license, to be granted and regulated by the county courts. Revised
Statutes of Missouri, 1835.
It was declared, in Bowman v. Wathen, 2 M'Lean, 376, that the right to a ferry
attaches to the riparian proprietor, and it cannot be taken from him without compen-
1 A ferry franchise may be granted
although only one shore be within the
jurisdiction of the state making the grant.
Conway v. Taylor, 1 Black, 603. See
Marshall v. Grimes, 41 Miss. 27.
lic ferry does not pass as appurtenant to
the fee of the riparian proprietor. Harri-
son v. Young, 9 Ga. 359, 365. Nor does
a grant of the ferry confer a title to the
soil. Somerville v. Wimbish, 7 Gra:t.
It seems that the right to keep a pub- 205.
[552]
LECT. III.]
* 422
OF REAL PROPERTY.
If a man hath several distinct parcels of enclosed land, and he
sells all but one surrounded by the others, and to which he has no
way or passage except over one of the lots he has sold, it has been
made a question, whether he be entitled to a right of way against
his own deed, when he has been so improvident as to re-
serve none. It is said, in Clark * v. Cogge, (a) that the
* 422
law reserves to him a right of way in such case from neces-
sity. But the position in that case seems to have been contrary
to the doctrine in the prior case of Dell v. Babthorpe, (b) where it
was held, that if a man had a close and a wood adjoining it, and
time out of mind a way had been used over the close to the wood,
and he then sells the close to one man, and the wood to another,
the grantee of the wood has no right of way over the close, for
the grantor had excluded himself, as he had sold the close without
reserving such a right; and as he had lost his right, he could not
communicate any to the grantee of the wood. But in this last
case, it did not appear to be necessary to go over the close in ques-
tion to the wood, and there might have been another way to it;
and the weight of authority is, that the grantor has a right of way
to his remaining land, in case of necessity, when he cannot other-
wise approach his land. The law presumes a right of way
reserved, or rather gives a new way, from the necessity of the
case, and the new right of way ceases with the necessity for it. (c)
This principle of law has been for a long time recognized. Thus,
in Packer v. Welsted, (d) decided in the Upper Bench, under the
protectorate of Cromwell, A. had three parcels of land, and there
was a private way out of the first parcel to the second, and out of
the two first parcels to the third. B. purchased all these parcels,
and then sold the two first to C. There was no way to the land
not sold but through the other two parcels; and the court ad-
sation. The riparian owner on a navigable river may convey the soil, excepting the
right of ferriage. This right of ferriage becomes an incorporeal hereditament, and
may be granted the same as a rent, and the grantee will have a right to use the soil
for ferryways, and for no other purpose. By the laws of Indiana this ferry right is
assignable. It is real estate, and descends to the heirs, and is subject to dower and
the other incidents of real property; and in Illinois, ferries are declared to be publici
juris, and can be granted by the sovereign power, and riparian possessors are not
thereby entitled to the ferry franchise. Mills v. County Comm., 2 Scamm. 53.
(a) Cro. Jac. 170.
(b) Cro. Eliz. 300.
(c) Holmes v. Goring, 2 Bing. 76; 9 Moore, 166, s. c.; Collins v. Prentice, 15
Conn. 39.
(d) 2 Sid. 39.
[ 553 ]
• 424
[PART VI.
OF REAL PROPERTY.
judged that the way continued from necessity, and that the party
was not liable in trespass for using it. So also, in Dutton v. Tay-
*
lor, (e) A. owned two closes, B. and C., and there was no
*423 passage to close B. but through close C., and he sold
close C., and it was held, upon plea and demurrer, that the
right of way still existed from necessity, and that it was not for
the public good that close B. should be left uncultivated. This
last case is supposed to be binding; and Lord Kenyon said, in
Howton v. Frearson (a) that he was prepared to submit to the
express authority of it, though his reason was not convinced, and
he thought there were great difficulties in the question.
But the doctrine of the case of Dutton v. Taylor received con-
firmation in Buckby v. Coles, (b) where it was decided, that if a
person owned close A., and a passage of necessity to it over close
B., and he purchased close B., and thereby united in himself the
title to both closes, yet if he afterwards sold close B. to one per-
son, without any reservation, and then close A. to another person,
the purchaser of close A. has a right of way over close B. This
case seems to put an end to all doubts as to the existence of a
right of way from necessity, even over the land which the claim-
ant of the way had previously sold.
If a right of way be from close A. to close B., and both closes
be united in the same person, the right of way, as well as all
other subordinate rights and easements, is extinguished by the
unity of possession. (c) But there is a distinction between a right
of way existing from necessity, and one merely by way of ease-
ment or convenience. The former is not extinguished by the
unity of possession, as a right of way to a church or market, or a
right to a gutter carried through an adjoining tenement, or to a
watercourse running over the adjoining lands. (d) Sergeant Wil-
*
liams (e) is of opinion, that the right of way, when claimed
*424 by necessity, is founded entirely upon grant, and derives
its force and origin from it. It is either created by express
words, or it is created by operation of law, as incident to the
grant; so that, in both cases, the grant is the foundation to the
(e) 2 Lutw. 1487.
(a) 8 T. R. 50.
(c) Whalley v. Thompson, 1 Bos. & P. 371.
(b) 5 Taunt. 311.
(d) Popham, J., in Jorden v. Atwood, Owen, 121; Shury v. Piggot, 3 Bulst. 339;
Cruise's Dig. tit. Ways, 23, 24; note to 1 Bos. & P. 374.
(e) Note 6 to 1 Saund. 323.
[ 554 ]
LECT. LII.]
* 424
OF REAL PROPERTY.
title. If this be a sound construction of the rule, then it follows,
that, in the cases I have mentioned, the right of the grantor to a
way over the land he has sold, to his remaining land, must be
founded upon an implied restriction, incident to the grant, and
that it cannot be supposed the grantor meant to deprive himself
of all use of his remaining land. This would be placing the right
upon a reasonable foundation, and one consistent with the general
principles of law. (a) ¹
1
There is a temporary right of way over the adjoining land, if
the highway be out of repair, or be otherwise impassable, as by a
flood. But this right of going upon the adjoining land applies to
public and not to private ways. (b) A person having a right to a
private way over another's land, has no right to go upon the
adjoining land, even though the private way be impassable or
founderous, by being overflowed by a river. The reason given is,
that the owner of the way may be bound to repair, and the impas-
(a) In Cooper v. Maupin, 6 Mo. 624, the court, after much discussion and criticism
of the cases referred to in the two preceding pages, concluded that a right of way
from necessity does not exist from one part of the claimant's land to another part of
the same contiguous tract, over the land of another. The question must depend upon
circumstances. No doubt it must be a case of necessity, and not of convenience
merely; and when that necessity does exist, and there be no access to the claimant's
land without a way over another's land, that right of way must exist, to be used, of
course, with the least inconvenience or detriment to the other's land. The English
cases referred to appear to me to declare a rule sound in reason and in law.
(b) Taylor v. Whitehead, Doug. 745; Henn's Case, W. Jones, 296; 3 Salk. 182,
pl. 4; 2 Bl. Comm. 36.
1 Way of Necessity. - See, generally,
Leonard v. Leonard, 2 Allen, 543; Pin-
nington v. Galland, 9 Ex. 1; 1 Wms.
Saund. 323, n. 6; White v. Bass, 7 H. &
N. 722, 732; Gayford v. Moffat, L. R. 4
Ch. 133; Davies v. Sear, L. R. 7 Eq. 427.
The grantor may have a way of necessity,
although he conveyed with covenants of
warranty. Brigham v. Smith, 4 Gray, 297.
Otherwise when the way would be incon-
sistent with the object of the conveyance.
Seeley v. Bishop, 19 Conn. 128. A pretty
strict rule as to the degree of necessity is
laid down. M’Donald v. Lindall, 3 Rawle,
492; Screven v. Gregorie, 8 Rich. (S. C.)
158.
"A reasonable necessity." Oliver
v. Pitman, 98 Mass. 46, 50. See Pettingill
v. Porter, 8 Allen, 1; Thayer v. Payne,
2 Cush. 327. See 419, n. 1, B. (a). The
right ceases with the necessity for it.
Viall v. Carpenter, 14 Gray, 126; N. Y.
Life Ins. Co. v. Milnor, 1 Barb. Ch. 354;
Pierce v. Selleck, 18 Conn. 321; Pearson
v. Spencer, 3 Best & S. 761, 767. Semble
contra per Parke, B., Proctor v. Hodgson,
10 Ex. 824, 828.
The distinction said in the text to have
been alluded to in Taylor v. Whitehead
is denied. In neither case can the person
having the right of way go on the ad-
joining land. Williams v. Safford, 7
Barb. 309. But he may, if the owner of
the fee obstructs the old way. Leonard
v. Leonard, 2 Allen, 543; Farnum v.
Platt, 8 Pick. 339. Contra, Williams v.
Safford, sup.
[555]
425
[PART VI
OF REAL PROPERTY.
sable state of the private way may be owing to his own neglect;
but if public roads become impassable, it is for the general good
that the people should be entitled to pass in another direction.
There may be a distinction between a private way arising from
necessity, and a private way founded on grant or prescription ;
and such a distinction was alluded to by one of the judges in
Taylor v. Whitehead. If a person be obliged, of necessity, to go
over another's farm to arrive at the land which the other sold
him, and the private way assigned be destroyed by a flood or other-
wise, he may of right cross the farm on another line, and he is
not obliged, at his peril, to keep such a road of necessity in
*425 repair. By selling land surrounded * with his own, the
grantor has bound himself to furnish the purchaser a
reasonable passage to it.
The right of way, as to a foot or tow path along the banks of
navigable rivers, has been a subject of great discussion, and of
much regulation in the laws of different nations.
In the civil law, the banks of public rivers and the sea shore
were held to be public. Riparum usus publicus est; littorum
quoque usus publicus est jure gentium. (a) The law of nations
was here used for natural right, and not international law,¹ in the
modern sense of it; and it is stated in the Institutes of Justinian,
that all persons have the same liberty to bring their vessels to
land, and to fasten ropes to the banks of the river, as they have
to navigate the river itself. These liberal doctrines of the Roman
law have been introduced into the jurisprudence of those nations
of Europe which have followed the civil, and made it essentially
their municipal law. Thus, in Spain, the sea shore is common to
the public; and any one may fish, and erect a cottage for shelter.
The banks of navigable rivers may also be used to assist naviga-
tion. (b) In the French law, navigable or floatable rivers, as they
(a) Inst. 2, 1, 4, 5. The bank of a river is that which contains the water in its utmost
height. Ripa ea putatur esse, quæ plenissimum flumen continet. Dig. 43. 12. 3. 1.
(b) Institutes of the Civil Law of Spain, by Doctors Asso and Manuel, b. 2, tit. 1.
This is also the law in Louisiana; the banks of navigable rivers, though they are the
property of those who possess the adjacent lands, are nevertheless subject to the pub-
lic use so far that vessels may make fast to the shore and to the trees planted there,
and they may be unloaded, and the goods deposited and nets dried there. So any
persons may build cabins on the sea shore for shelter, and fish from there, and
moor ships and dry nets there. Civil Code, arts. 443, 446; Hanson v. City Council
of Lafayette, 18 La. 295.
1 Ante, i. 1, n. 1.
[ 556 ]
LECT. LII.]
* 427
OF REAL PROPERTY.
are termed, have always been regarded as dependencies of the
public domain, and the lands on each side subject to the servitude
or burden of towing-paths for the benefit of the public. (c)
The English law was anciently the same as the Roman
* law, if we may judge from the authority of Bracton, (a) *426
who cites the words of the civil law, declaring the banks
of navigable rivers to be as much for public use as the rivers
themselves. So, Lord Holt held, (b) that every man, of common
right, was justified in going with horses on the banks of navigable
rivers for towing. But Sir Matthew Hale, in his treatise De Jure
Maris, and in which he has exhausted the learning concerning
public property in the sea and rivers, and collected all the law on
the subject, concluded that individuals had a right to a tow-path,
for towing vessels up and down rivers, on making a reasonable
compensation to the owner of the land for the damage. (c) This
condition, which he annexes to the privilege, shows, that, in his
opinion, there was no such common right in the English law,
inasmuch as it depended on private agreement with the owner
of the soil. The point remained in this state of uncertainty,
until the case of Ball v. Herbert, in 1789, (d) brought the whole
doctrine into discussion. The case was respecting a claim to tow
on the bank of the River Ouze, in Norfolkshire, with men and
horses, whenever it was necessary for the purposes of navigation,
doing as little damage as possible. It was admitted that the
Ouze was a navigable river, where the tide ebbed and flowed.
The question was, whether, at common law, the public had a
right to tow vessels on the banks of either side of a navigable
river; and it was investigated and argued with great ability. All
the cases bearing on the question were collected and reviewed,
and the court concluded that there was not, and never had been,
any right at common law, for the public to tow on the banks
of navigable rivers. The claim was directly contrary to common
experience; and it was observed by Lord Kenyon, that
*
the navigators on the Thames were frequently obliged, *427
at several places, to pass from one side of the river to the
other, with great inconvenience and delay, because they had no
(c) Ferrier's Inst. 2, 1, 4, 5, and note, ib.; Code Napoleon, n. 538, 650.
(a) Lib. 1, c. 12, sec. 6.
(b) 1 Ld. Raym. 725; 6 Mod. 163.
(c) Harg. L. T. 85, 86, 87.
(d) 3 T. R. 253.
[ 557 ]
* 427
[PART VI.
OF REAL PROPERTY.
such general right. It was admitted, that on many navigable
rivers, there was a custom to tow on the banks; but the privilege
in those cases rested on the special custom, and not on any com-
mon law right. The statutes which have given a right of towing
on parts of the Severn, Trent, and Thames are evidence that no
such general right before existed. (a)
(2) Riparian Rights. It is a settled principle in the English
law, that the right of soil of owners of land bounded by the sea,
or on navigable rivers, where the tide ebbs and flows, extends to
high water mark; and the shore below common, but not extraor-
dinary high water mark, belongs to the state as trustee for the
public; and in England the crown, and in this country the people,
have the absolute proprietary interest in the same, though it may,
by grant or prescription, become private property. The public
1
(a) In New York it has been adjudged, after a very able and thorough examina-
tion of the question, that the public have not the right to use and occupy the soil of
an individual adjoining navigable waters, as a public landing and place of deposit of
property in its transit, against the will of the owner, although such user has been con-
tinued upwards of twenty years with the knowledge of the owner. Pearsall v. Post,
20 Wend. 111; s. c. 22 Wend. 425. On the other hand, it is held, in Missouri, that
navigators and fishermen are entitled to the temporary use of the banks of the naviga-
ble rivers in that state, though owned by private individuals, for the purpose of land-
ing and repairing their vessels, and exposing their sales and merchandise. But this use
is only for transient purposes, and under restrictions. O'Fallon v. Daggett, 4 Mo. 343.
1 Riparian Rights. (a) The text is
confirmed by Howard v. Ingersoll, 13
How. 381, 421 et seq.; United States v.
Pacheco, 2 Wall. 587, 590; ante, 413, n. 1;
Attorney General v. Chambers, 4 De G.,
M. & G. 206; Stevens v. Paterson &
Newark R.R., 5 Vroom (34 N. J.), 532,
545, 555. The author of the American
note to Dovaston v. Payne, 2 Sm. L. C.,
says that the state owns only to low water
mark, but the authorities hardly support
him. The Massachusetts cases cited by
nim depend on the ordinance of 1641,
hereafter referred to.
(b) Great Rivers. With regard to the
point discussed in note (d) and post, 430,
the title of riparian owners on the great
rivers is thought to extend ad medium filum
aquæ, in Berry v. Snyder, 3 Bush, 266;
Jones v. Soulard, 24 How. 41; Brown v.
Chadbourne, 31 Me. 9; Bradford v. Cres-
sey, 45 Me. 9; Arnold v. Elmore, 16 Wis.
509; Mariner v. Schulte, 13 Wis. 692;
Walker v. Board of Public Works,
16 Ohio, 540; Magnolia v. Marshall, 39
Miss. 109; Newton v. Eddy, 23 Vt. 319;
Lorman v. Benson, 8 Mich. 18; Rice v.
Ruddiman, 10 Mich. 125. Semble, Com-
monwealth v. Alger, 7 Cush. 53, 97; Bos-
ton v. Richardson, 13 Allen, 146, 154;
Schurmeier v. St. Paul & P. R.R., 10
Minn. 82, 102, and cases. (See s. c. 7
Wall. 272, 286 et seq.) Contra, a long dis-
cussion in People v. Canal Appraisers, 33
N. Y. 461; Stuart v. Clark, 2 Swan, 9;
McManus v. Carmichael, 3 Clarke (Iowa),
1; Haight v. Keokuk, 4 id. 199; Bailey v.
Miltenberger, 31 Penn. St. 37; Mononga-
hela Bridge Co. v. Kirk, 46 Penn. St. 112;
2 Am. Law Rev. 589.
See, as to privileges of riparian owners,
ante, 413, n. 1.
(c) The general principle that a grant
bounded by a stream extends ad filum, is
[ 558]
LECT. LII.]
* 427
OF REAL PROPERTY.
have at common law a right to navigate over every part of a com-
mon navigable river, and on the large lakes; and in England
even the crown has no right to interfere with the channels of
public navigable rivers. They are public highways at common
law. The sovereign is trustee for the public, and the use of
navigable waters is inalienable. But the shores of navigable
waters, and the soil under them, belong to the state in which they
are situated, as sovereign. (b) The right of sovereignty in public
rivers above the flow of the tide is the same as in tide waters;
they are juris publici, except that the proprietors adjoining such
rivers own the soil, ad filum aquæ. (c) But grants of land, bounded
(b) Pollard v. Hagan, 3 How. 212.
(c) Hale, de Jure Maris, c. 4, 5, 6; Rex v. Smith, Doug. 425 [441]; Williams v. Wil-
stated in Lord v. Commissioners of Syd-
ney, 12 Moore, P. C. 473; Boston v.
Richardson, 13 Allen, 146, 154; Pratt v.
Lamson, 2 Allen, 275, 284; Knight v.
Wilder, 2 Cush. 199; Walton v. Tifft, 14
Barb. 216. So when the boundary was
an ancient artificial mill pond. Mill R.
Woollen Man. Co. v. Smith, 34 Conn. 462;
Phinney v. Watts, 9 Gray, 269. Otherwise
of a grant by a state. Howard v. Inger-
soll, 13 How. 381; Alabama v. Georgia,
23 How. 505; 13 Allen, 157. But see 7
Moore, P. C. 497. See 432, n. 1. The filum
is thought to be the middle line between
the shores without regard to the channel.
Hopkins Academy v. Dickinson, 9 Cush.
544, 552.
(d) Accessions. The text, 428, is con-
firmed by Chapman v. Hoskins, 2 Md. Ch.
485; Barrett v. New Orleans, 13 La. An.
105. A strong case was Banks v. Ogden, 2
Wall. 57, where a proprietor dedicated to
the public a street along the shore of
Lake Michigan, and then sold land bounded
by the street, and it was held that he
was entitled to alluvial accretions, as he
owned the fee of the lake side of the
street. Contiguity is always necessary
to the right. Saulet v. Shepherd, 4 Wall.
502. It seems to be immaterial that the
cause of the deposit is artificial if created
alio intuitu. Att. Gen-v. Chambers, 4 De
G. & J. 55; Halsey v. McCormick, 18 N.
Y. 147.
•
Light is thrown on the principles ac-
cording to which alluvial accessions should
be divided by the similar case of the divi-
sion of flats among owners of the upland.
The fundamental rule is said to be that
the flats are to be so divided as to give to
each parcel a width at its outer or sea-
ward end proportional to that which it
has at high water mark. The dividing
lines are generally to be drawn in the
most direct course from high to low water
mark, and the flats in front of each pro-
prietor's upland should, if practicable, be
as wide at low as at high water mark.
Wonson v. Wonson, 14 Allen, 71, 79.
Where the side lines of several upland
lots were parallel and oblique to the shore,
but the effect of producing these lines
would have been to cut off the access
from one of the lots to low water, the
dividing lines were drawn perpendicular
to the base line of the cove.
Boston Steel & Iron Co., 14 Allen, 230.
The former of these cases contains an
elaborate discussion of the principles and
authorities. See, also, Crook v. Corpora-
tion of Seaford, L. R. 6 Ch. 551; Johns-
ton v. Jones, 1 Black, 209; O'Donnel v.
Kelsey, 4 Sandf. (N. Y.) 202.
Stone v.
[559]
* 427
[PART VI.
OF REAL PROPERTY.
on rivers, or upon the margins of the same, or along the same,
above tide water, carry the exclusive right and title of the grantee
to the centre of the stream, unless the terms of the grant clearly
denote the intention to stop at the edge or margin of the river
and the public, in cases where the river is navigable for boats and
rafts, have an easement therein, or a right of passage, subject to
the jus publicum as a public highway. (d) The proprietors of
;
cox, 1 Willmore & Hodges, 477; La Plaisance Bay Harbor v. City of Monroe, 1 Walker
Ch. (Mich.) 155; Louisiana Civil Code, art. 442, 443, 444. In Connecticut, it was
held, in the case of East Haven v. Hemingway, 7 Conn. 186, that the owners of land
adjoining a navigable river have an exclusive right to the soil between high and low
water mark, for the purpose of erecting wharves and stores. But see infra, 432, note,
cases contra; and the case of Chapman v. Kimball, 9 Conn. 38, also recognized the
English rule; and it is there held, that the riparian proprietor on a navigable river or
arm of the sea, is not entitled to the seaweed which grows and accumulates on the
bed below low water mark. It belongs to the public. In the case of The Canal
Appraisers v. The People, 17 Wend. 571, Chancellor Walworth stated the true rule
of the common law to be, that grants embracing within their bounds rivers and streams
above tide water, convey not only the banks, but the beds of the rivers or streams, and
the islands therein, unless clearly, by the grant itself, excluded from it. But the right
of the grantee to the rivers or streams above tide water, if they be navigable, is not
absolute, but subject to the right of the public to use the waters as a highway, for
the passage of boats, &c. The common law rule, however, does not apply to large
navigable lakes, nor to rivers constituting the boundaries between New York and
other states. In the State of New York, by statute, N. Y. R. S. 3d ed. i. 78, 79, it is
declared, that whenever two counties are separated from each other by a river or
creek, the middle of the channel is the division line; and if the boundary line crosses
an island, the whole of it is deemed to be within the county in which the greater part
of it lies; and the officers of the counties bordering on Seneca Lake, and of the coun-
ties of Kings, Richmond, and New York, on the waters in Kings and Richmond, south
of New York, have concurrent civil and criminal jurisdiction for the purpose of serv-
ing process.
(d) Hale, de Jure Maris, 6, 9, 22, 36; Palmer v. Mulligan, 3 Caines, 318; The River
Banne, Davies, 152, 155, 157; Deerfield v. Arms, 17 Pick. 41; Commissioners of the
Canal Fundv. Kempshall, 26 Wend. 404; Child v. Starr, 4 Hill (N. Y.), 369, 373; Adams
v. Pease, 2 Conn. 481; Esson v. M'Master, Kerr, N. B. 501; Bowman v. Watken, 2
M'Lean, 376. In Pennsylvania it is held, that the owners of land on the rivers Delaware
and Schuylkill have a right to the land between high and low water mark, subject to
the public easement, or right to pass over it when covered by the water. Ball v. Slack,
2 Wharton, 508; [Lehigh Valley R.R. v. Trone, 28 Penn. St. 206; Bailey v. Milten-
berger, 31 id. 37; Tinicum Fishing Co. v. Carter, 61 id. 21; Boston v. Richardson, 105
Mass. 351.] The riparian proprietor also owns the land in the river Ohio, between high
and low water mark. Lessee of M'Culloch v. Aten, 2 Ohio, 307; Blanchard v. Porter, 11
Ohio, 138. By compact between Pennsylvania and New Jersey, the river Delaware
remains a common highway, equally free and open to both states, but each state reserves
the right of regulating the fisheries on the Delaware annexed to their respective shores,
and each state exercises concurrent jurisdiction on the waters of the river. So, by
[ 560 ]
LECT. LII.]
* 427
OF REAL PROPERTY.
the adjoining banks have a right to use the land and water of the
river, as regards the public, in any way not inconsistent with
compact, the boundary line between New York and New Jersey, on the Hudson River
is the middle of the river, but the exclusive jurisdiction over the waters of the river
and bay, but not reaching to the wharves and improvements on the Jersey shore, is
in New York. So, New Jersey has exclusive jurisdiction over the waters of the
Sound between Staten Island and New Jersey, with like reservations. Rights of
property in each state reach to the middle of the rivers. Elmer's Dig. 562. The
ordinance of Congress of 13th July, 1787, for the government of the Territory of the United
States northwest of the river Ohio, declared it to be a fundamental provision, to remain
forever unalterable, that the navigable waters leading into the Mississippi and St.
Lawrence, and the carrying places between the same, should be common highways,
and forever free. But this provision did not abolish or impair the common law prin-
ciple, that he who owns the lands on both banks owns the entire river, subject only
to the easement of navigation; and he who owns the land upon one bank only, owns
to the middle of the river, subject to the same easement. Gavitt v. Chambers, 3 Ohio,
496. Nor did it prohibit the legislatures of the states to improve the navigation of such
rivers and carrying places by canals, railroads, and turnpikes, and for charging tolls for
such increased facilities. Spooner v. M'Connell, 1 M’Lean, 337. [See i. 439, n. 1.] All
the navigable waters in the western states and territories have, by successive acts of
Congress, been declared public highways, as, see acts of May 18th and June 1st, 1796,
March 3d, 1803, March 26th, 1804, March 3d, 1811, February 20th, 1811, April 8th, 1812,
June 4th, 1812, March 1st, 1817, May 8th, 1817. In the case of Middleton v. Pritchard, 3
Scamm. 510, this subject was learnedly discussed, and it was justly held, that at common
law the title of the riparian proprietor, bounded by a navigable stream, extended only
to high water mark, and in streams not navigable, the rights of the riparian proprietor
extended exclusively to the middle thread of the current. That arms of the sea, and
streams where the tide ebbs and flows, are by the common law deemed navigable;
and streams above tide water, though navigable in fact, are not deemed navigable in
law. All government grants bounded upon a river not navigable entitle the grantee
to all islands lying between the mainland and the centre thread of the current, for
grants by the government are to be construed by the common law, unless the government qualify
or exclude that construction; for where government makes a grant, and does not reserve any
right or interest that could pass by the grant, and shows no intention to make such reservation,
the grant must be intended to include all that might pass by it. Grants are to be taken most
strongly against the grantor. The clear and frank exposition of the common law in this
learned case, and especially in respect to government grants, does honor to the court
which delivered it. It was further declared, that the Mississippi River was not a
navigable stream at common law, and the title of the riparian proprietor extended to
the middle thread of the stream, including islands, &c., but that navigators had not
only the privilege of floating upon the water, but to land and fasten their vessels and
boats to the shore, for that this was a part of the public easement, which the owners
of the lands must bear. The same question as to the rights of the Mississippi in the
riparian owner was very learnedly discussed in Morgan v. Reading, 3 Smedes & M.
336, and the same doctrine and law were declared; the common law, and not the civil
law, governed the case, and the magnitude of the river did not affect it. The Missis-
sippi River, above the ebb and flow of the tide, was not navigable in the sense of the
common law, and the rights of the riparian owner went to the middle of the river,
subject, of course, to the right of passage to the public as a highway, and with the
right, perhaps, though not absolutely decided, to the right, in cases of necessity, to
[561]
VOL. III.
36
428
[PART VI.
OF REAL PROPERTY.
the easement; and neither the state nor any other individual has
the right to divert the stream, and render it less useful to
* 428 the owners of the soil. (e) It* would require an express
exception in the grant, or some clear and unequivocal
declaration, or certain and immemorial usage, to limit the title
of the owner, in such cases, to the edge of the river. Where a
stream is used in a grant as a boundary or monument, it is used
as an entirety to the centre of it, and to that extent the fee passes.¹
Prima facie, said the Vice-Chancellor of England, (a) the pro-
prietor of each bank of a stream is the proprietor of half the land
covered by the stream. If the same person be the owner of the
lands on both sides of the river, he owns the whole river to the
extent of the length of his lands upon it. If a fresh water river,
running between the lands of separate owners, insensibly gains
on one side or the other, the title of each continues to go ad filum
medium aquæ; but if the alteration be sensibly and suddenly
made, the ownership remains according to the former bounds;
fasten and moor vessels and floats to the shore. These decisions, in the courts of
Illinois and Mississippi, are highly creditable to their learning and firmness; and it is
consoling to meet with such frank and manly support of the binding force of the com-
mon law on which American jurisprudence essentially rests. [See 427, n. 1, (b).]
(e) Ex parte Jennings, 6 Cowen, 548; People v. Canal Appraisers, 13 Wend. 355;
Oliva Boissonnault, Stuart (Lower Canada), 524. In the case of The Canal Appraisers
v. The People, 17 Wend. 571, the judgment of the Supreme Court of New York, in
13 Wend. 355, was reversed, and the right of the state over waters above the flow of
the sea, for all public purposes, in derogation of individual rights, was declared. All
rivers, in fact navigable, were deemed public rivers, and subservient to public uses.
Thus, though the erection of a dam across the Hudson River, at the sloop lock
between Troy and Lansingburgh, destroyed the value of a waterfall, situate in the
middle sprout of the Mohawk River, a tributary stream, the owner of the mill site was
held not entitled to damages or compensation, within the provision of the canal law.
Zimmerman v. Union Canal Company, 1 Watts & S. 346, s. P. But the doctrine in
the case in 6 Cowen, and in the case in 17 Wendell, seems to have been overruled by
the case of The Commissioners of the Canal Fund v. Kempshall, 26 Wend. 404, where
it was adjudged, in the Court of Errors, that fresh water rivers to the middle of the
stream belong to the owners of the adjoining banks, each to the centre or thread of
the river; and if navigable, the right of the owners is subject to the servitude of the
public interest for passage or navigation. The owners are entitled to the usufruct of
the waters flowing in the river, as appurtenant to the fee of the adjoining banks;
and for an interruption in the enjoyment of their privileges in that respect, in conse-
quence of improvements made by the state, are entitled to compensation for damages sus-
tained.
(a) Wright v. Howard, 1 Sim. & Stu. 190; Shaw, C. J., in Deerfield v. Arms, 17
Pick. 41, to the same point.
1 See 427, n. 1, (c).
[562]
LECT. LII.]
428
OF REAL PROPERTY.
and if the river should then forsake its channel, and make an
entire new one in the lands of the owner on one side, he will
become owner of the whole river, so far as it is enclosed by his
land. This is the general doctrine as to alluvions. (b) If soil be
formed by islands, or relicted land out of the sea or a river, by
slow and imperceptible accretion, it belongs, in the case of the
sea or navigable rivers, to the sovereign, and in the case of rivers.
not navigable in the common law sense of the term, or above
where the sea ebbs and flows, it belongs to the owners of the
adjoining land. (c) 2 Islands situated in a river do not form any
(b) The doctrine of alluvions and battures has led, for many years past, at New
Orleans, to the most laborious and expensive litigation; and the Roman, Spanish,
and French laws applicable to the case have been examined and discussed with pro-
found research and consummate ability. One of the most recent cases is that of
Municipality No. 2 v. Orleans Cotton Press, 18 La. 122. It was there declared, that
the right to future alluvial formation or batture, or right of accretion, (for batture is a
marine term, and denotes a bottom of sand, &c., rising towards or above the surface of
the river,) was a vested right inherent in the property, and an essential attribute of it,
resulting from natural law, in consequence of the local situation of the land to which
it attaches. It was an accessory to the principal estate or land, and cities as well as
individuals may acquire it, jure alluvionis, as owner of the front, or riparian proprietor.
The right was founded in justice, arising from the risks to which the land was exposed,
and from the burden of keeping up levees or embankments in front of the river to pro-
tect the estate. When the government laid out the city of New Orleans, it left an
open space between the front row of houses and the river, and which was marked quai
on the plan. It was a dedication of this space to public uses, and it became a locus
publicus; and if the proprietors of riparian estates in the faubourgs left such open
spaces between the front street and the river, marking it as a public place, it amounted
to a dedication, if accepted by the public. But if there was no such indication or
intention, and acts of ownership, as a riparian proprietor, were exercised, then the
space belonged to the riparian proprietor. One of the judges in that case (and one
venerable from his age, his learning and character) was of opinion, that when the plan
of a city or faubourg fronting on a navigable river, or the sea, had an open space
between the front row of houses or street, and the water in public use, it became part
of the port, as a locus publicus dedicated to public uses, without any other designation
or evidence of dedication. It was afterwards adjudged, in the case of The City Coun-
cil of Lafayette v. Holland, ib. 286, that where the owner throws open a passage for
the use of the public, and shows no visible intention that he means to preserve his
right over it, a dedication to the public would be presumed. And again, in Pulley
v. Municipality No. 2, id. 278, it was held, that the use of the batture outside of
the levee, on the bank of the river, at New Orleans, was vested in the public or city
for public uses, but that the title to the soil, and the accretions, were vested in the
front proprietors of the land to which the batture attaches or forms.
(c) Just. Inst. 2. 1. 28; Dig. 41. 1, tit. De acq. rer. dominio, 7. 1; Puff. 4, 7, 12.
The civil law says, that the ground gained on a river by alluvion, or imperceptible
increase, belongs to the owner of the adjoining land, jure gentium. This is also the
2 See 427, n. 1, (d).
[ 563 ]
* 429
[PART VI.
OF REAL PROPERTY.
exception to this general principle, and they belong to the person
who owns the land on that side of the river to which they are
nearest; though, if they be situated so as to cover the middle of
the river, they would belong in severalty to the owners on each
side, according to the original dividing line, or filum aquæ con-
tinued on from the place where the waters begin to divide. Each
proprietor is entitled to a larger or smaller proportion of the
alluvial formation and shore line, according to the extent of his
original line on the shore of the river. (d)
* 429
* This principle of the common law has been recognized
and prevails in the states of Maine, New Hampshire, Mas-
sachusetts, Connecticut, New York, New Jersey, Maryland, Ohio,
Virginia, North Carolina, and Louisiana. (a) In Maine and
rule of the common law. Bracton, lib. 2, c. 2; Hale, de Jure Maris, c. 6; 2 Bl.
Comm. 261, 262; The King v. Lord Yarborough, 3 B. & C. 91; 1 Dow & Clark, 178,
s. c.; New Orleans v. United States, 10 Peters, 662; Schultes on Aquatic Rights,
115--138; Deerfield v. Arms, 17 Pick. 41. If seaweed be cast on the sea shore. by
slow degrees and gradual accumulation, it belongs as a marine increase to the riparian
proprietor. Emans v. Turnbull, 2 Johns. 322.
(d) Hale, de Jure Maris, c. 1, 2, 3, 4, 6; Bracton, De Acq. Rer. lib. 2, c. 2, sec. 2;
Dig. 41. 1. 29; King v. Smith, Doug. 441; Code Napoleon, n. 561; The People v.
Canal Appraisers, 13 Wend. 355; Deerfield v. Arms, 17 Pick. 41; Toullier, Droit
Civil, iii. 107, 108. If the waters of a river be divided by an island, and one fourth
of the stream descends on one side of the island, and the residue on the other, it was
held, in Crooker v. Bragg, 10 Wend. 260, that the owner of the shore where the largest
quantity of water flows was entitled to the use of the whole water flowing on that side
of the island.
It may here be observed as a general rule, that the rights of a riparian proprietor
do not attach to a mere intruder on land, for he is limited to his actual possession.
Watkins v. Holman, 16 Peters, 25.
(a) Berry v. Carle, 3 Greenl. 269; Morrison v. Keen, ib. 474; Weston, Ch. J., in
Bradley v. Rice, 13 Me. 201. (In that case it was held, and so it had been in Water-
man v. Johnson, 13 Pick. 261, that where the land in a conveyance was bounded by
a pond of water, the grant extended only to the margin of the pond.) Claremont v.
Carlton, 2 N. H. 369; King v. King, 7 Mass. 496; Lunt v. Holland, 14 id. 149; Ingra-
ham v. Wilkinson, 4 Pick. 268; Adams v. Pease, 2 Conn. 481; Warner v. Southworth,
6 id. 471. In this last case, it was held, that if a wide ditch or a wide stone wall con-
stituted the boundary line, and the owner on one side conveyed his land, bounding
the grantee on the ditch or wall, the same principle would apply, and the grant would
extend to the centre of the ditch or wall. Palmer v. Mulligan, 3 Caines, 318; The
People v. Platt, 17 Johns. 195; Hooker v. Cummings, 20 id. 90; Ex parte Jennings, 6
Cowen, 518; Arnold v. Mundy, 1 Halst. 1; Hayes v. Bowman, 1 Rand. 417; Mead v.
Haynes, 3 id. 33; Home v. Richards, 4 Call, 441; Gavitt v. Chambers, 3 Ohio, 495;
Browne v. Kennedy, 5 Harr. & J. 195; Williams v. Buchanan, 1 Ired. (N. C.) 535;
Morgan v. Livingston, 6 Mart. (La.) 19. [Boston v. Richardson, 13 Allen, 146, 154.] In
Browne v. Kennedy it was held, that if the state be entitled to the soil covered by a
river not navigable, and grant the lands lying on such a river, and names the river as a
[564]
LECT. LII.]
* 430
OF REAL PROPERTY.
Massachusetts, some alterations in * the common law have *430
taken place; for by the colony ordinance of 1641, and
by usage arising therefrom, the proprietors of the adjoining land,
on bays and arms of the sea, and other places where the tide ebbs
and flows, go to low water mark, subject to the public easement,
and not exceeding one hundred rods below high water mark.
According to judicial constructions of that ordinance, the flats
between high and low water mark may be occupied by wharves
and other erections, provided the easement or passage be not too
much obstructed; and this right of property to low water mark,
or one hundred rods, extends to all cases where the tide ebbs and
flows, including as well the shores of the open sea as those of
creeks and coves. (a) The common law, as we have already
boundary, the grantee becomes a riparian proprietor, and entitled to the land the river
covers, ad filum medium aquæ. A variety of cases to the same effect are cited in the
learned note of the reporter, in 6 Cowen, 544; and they demonstrate the existence of
the rule that a grantee, bounded on a river, (and it is almost immaterial by what mode
of expression,) goes ad medium filum aquæ, unless there be decided language show-
ing a manifest intent to stop short at the water's edge. So, if a conveyance of land
on the bank of a river, not navigable, be bounded along the shore of the river, the
grantee still takes ad filum aquæ. Starr v. Child, 20 Wend. 149. In the case of The
Canal Commissioners v. The People, 5 Wend. 423, the language of the judges of the
Court of Errors, in New York, was, that by the rule of the common law which pre-
vailed here, grants of lands, bounded on rivers above tide water, extended usque filum
aquæ, including the beds of rivers and the islands therein, and the exclusive right of
fishing, unless the same was clearly intended to be reserved, but subject, neverthe-
less, to the right of the public to use the water as a highway. The right of the ripa-
rian owner to the stream is as sacred as other private property, and the state cannot
appropriate the water to public uses by artificial erections or improvements, without
making compensation. The People v. Canal Appraisers, 13 Wend. 355. Lands under
the water of navigable lakes are placed on the same footing with lands under the
waters of navigable rivers, and they require a specific grant to enable the riparian
proprietor to go beyond the shore, and the grant of the bed of such lakes can only be
made to the owner of the adjoining land. This is the rule in New York and New
Hampshire equally as to the waters of navigable rivers and lakes. N. Y. Revised
Statutes, i. 208, sec. 67; The State v. Gilmanton, 9 N. H. 461. In Scotland, naviga-
ble lakes, though not considered strictly inter regalia, yet if they form great channels
of communication, Mr. Bell thinks there is some reason to regard them as res publicæ,
and subject to public uses as a navigable river. Principles of the Law of Scotland,
171. In this country, our great navigable lakes are properly regarded as public prop-
erty, and not susceptible of private property more than the sea.
(a) Storer v. Freeman, 6 Mass. 435; Dane's Abr. ii. 693, 694; [Commonwealth v.
Roxbury, 9 Gray, 451, and note by the Reporter;] Parker, C. J., in Ingraham v. Wil-
kinson, 4 Pick. 258; Sale v. Pratt, 19 Pick. 191. In the case of Thomas v. Hatch,
3 Sumner, 170, in a case in the district of Maine, it was held, that a boundary on a
stream, or by or to a stream, includes the flats to low water mark, and in many cases
to the middle thread of the river. But if the boundary be to the bank, or by the bank,
[565]
431
[PART VI.
OF REAL PROPERTY.
•
seen, has been rejected, or deemed inapplicable to the great inland
rivers in Pennsylvania, and the owners of the land on the banks
of them do not, as of course, acquire right to the soil covered by
the waters of the rivers, but the soil and waters of the rivers,
with the rights and privileges incident thereto, remain in the pub-
lic. (b) In South Carolina the doctrine of the common law on
this subject has been held to be inapplicable; but as the common
law still applies to rivers capable of being made navigable, and
which possess obstructions to the passage of boats of every
* 431 description, and * as the adjoining owners in such cases go
ad filum aquæ, (a) the modifications which the common law
or on the bank of a river, the boundary may be limited to the bank.. [Stone v. City of
Augusta, 46 Me. 127.] So, if it be bounded by the margin of the stream. Nickerson
v. Crawford, 16 Me. 245. See, also, supra, 415. The colonial ordinance of 1641
extended the title of riparian proprietors to the low water mark, and though originally
limited to the Plymouth Colony, and afterwards annulled, yet the doctrine of it is
held in Massachusetts and Maine to be part of the common law of those states. Par-
sons, Ch. J., in Storer v. Freeman, 6 Mass. 438; Lapish v. Bangor Bank, 8 Greenl: 85.
In the case of The Commonwealth of Massachusetts v. Wright (American Jurist,
No. 6, 185), it was decided, in 1829, that a wharf extending into the navigable channel
in Boston harbor, so as in the course of time to injure the navigation, was indictable
as a public nuisance; and upon conviction, it was ordered to be abated at the expense
of the defendants. See Rex v. Lord Grosvenor, 2 Stark. 511, and Hale, de Portibus
Maris, c. 7, sec. 2. Whether the erection in such cases amounts to a common nuis-
ance, is a question of fact. The law of Connecticut declares it to be a common nuisance
to dam, stop, or obstruct any river, brook, stream, or run of water, or divert the same
⚫ from its natural course, to the prejudice of any person, without liberty from the town,
where such town has a right to grant it. Revised Statutes of Connecticut, 1821,
362.
(b) Carson v. Blazer, 2 Binney, 475; Shrunk v. President of the Schuylkill Navi-
gation Company, 14 Serg. & R. 71; Zimmerman v. The Union -Canal Company,
1 Watts & S. 351. In Starr v. Child, 20 Wend. 149, Mr. J. Bronson earnestly con-
tended, that the rule of the common law, that the flow and reflow of the tide was a
test of a public river, did not apply to the great fresh water rivers of New York, and
that they belonged to the public; but the majority of the court adhered to and
declared the common law rule. In Alabama, the rule is, that every watercourse,
suited to the ordinary purposes of navigation, whether the tide ebbs and flows or not,
is a public highway, and the riparian owner cannot assert any private right of soil
to the bed of the river beyond the low water mark. The question in that state does
not depend upon the common law test of the ebbing and flowing of the tide; for if
the river be suited to the ordinary purposes of navigation, it is, by statute, declared
to be a public highway, and the title to the bed of the river remains in the public,
unless it has been expressly granted. Bullock v. Wilson, 2 Porter, 436. And it is
competent to a state government to authorize the erection of a bridge across a navi-
gable river, below where the coasting trade is carried on by licensed vessels, pro-
vided the bridge be built with a drawbridge, for the passing and repassing of vessels,
free cf expense. The People v. S. & R. Railroad Company, 15 Wend. 113.
(a) Cates v. Wadlington, 1 M'Cord, 580.
[ 566 ]
LECT. LII.]
*431
OF REAL PROPERTY.
has undergone do not seem to be very material. So, in North
Carolina, the ebbing and flowing of the tide is not the sole test
of a navigable river. If a river be deep enough for sea vessels to
navigate to and from the ocean, it is a navigable stream, and the
boundary of the adjacent land is not the thread or middle of the
channel, but the edge of the water at low water mark. (b)
The sea shore, according to Lord Hale's definition, is the ground
between the ordinary high and low water mark, and it prima facie,
and of common right, belongs to the king, but may be vested in a
subject by prescription, or by grant, as if the king grants a manor
cum littore maris eidem adjacente, the shore itself will pass. (c)
But it was said by the Ch. J., in Arnold v. Mundy, (d) that a
grant bounded upon navigable water, where the tide ebbs and
flows, extended to high water mark when the tide was high, and
to low water mark when the tide was low, and that the immediate
space between high water and low water mark might be reclaimed,
and exclusively appropriated by the owner of the adjacent land,
to wharves, buildings, and other erections. (e) There may be a
(b) Wilson v. Forbes, 2 Dev. 30; Ingraham v. Threadgill, 3 id. 59. In the latter
case it was the language of the court, that in a river not navigable for the purposes
of navigation, the right of fishing belongs to the riparian owners. In Elder v. Burrus,
6 Humph. 358, the Supreme Court of Tennessee followed the rule in North Carolina,
and in opposition to the rule of the English law, held, that the owners of land on a
navigable stream above tide water had title only to ordinary low water mark, and not
to the centre of the stream.
By compact between the states of Virginia and Kentucky, in the years of 1789 and
1792, the jurisdiction of the river Ohio, below high water mark, was to be common
to the people of each state.
(c) Hale, de Jure Maris, c. 4, 5; Constable's Case, 3 Co. 105, 107, b. The shore of
a fresh river is where the land and water ordinarily meet. 6 Cowen, 547. By the
Civil Code of Louisiana, art. 442, the sea shore is declared to be that space of land
over which the sea spreads in the highest water, during the winter season.
(d) 1 Halst. 1.
(e) [Dutton v. Strong, 1 Black, 23; Bell v. Gough, 3 Zabr. 624; State v. Jersey
City, 1 Dutch. 525; Thurman v. Morrison, 14 B. Monr. 367. But not below low
water mark. Dana v. Jackson Street Wharf Co., 31 Cal. 118. And the right men-
tioned in the text is thought to be no more than a license, revocable by the state with-
out compensation in Stevens v. Paterson & N. R.R. Co., 5 Vroom (34 N. J.), 532.
See 413, n. 1, (c).] In Scotland, the owner of land, bounded on the sea shore, may
prevent the encroachments of the sea by artificial operations, and thereby gain by
embankments, holding the shore subject to the public uses. Bell's Principles of the
Law of Scotland, 169. A similar principle was declared in Connecticut, in Nicholas
v. Lewis, 15 Conn. 137, and that the freehold so reclaimed from the sea shore was in
the riparian proprietor, subject to the public right to abate it, if it proves to be a
nuisance.
[ 567 ]
* 432
[PART VI.
OF REAL PROPERTY.
movable freehold, as is stated by Lord Coke ; (ƒ) and if a grant
was made of the sea shore, the freehold would shift as the sea
receded or encroached, and it would take all the soil that should,
from time to time, be within high and low water mark. (g) But I
should apprehend the better opinion to be, that in ordinary grants
of land bounded on the sea, or a river, the boundary limit must
be stable, either at ordinary high or low water mark, and not sub-
ject to alternate change with the flux and reflux of the tide. In
Handley's Lessee v. Antony (h) it was considered as a general,
natural, and convenient rule of construction in public grants of
territory bounded by a river, instead of being bounded by
* 432 the bank or *shore, to take the permanent river for the
boundary line, and that would, of course, carry the line to
ordinary low water mark, and include the land left diurnally bare
by the receding of the water. The rule was, in that case, applied
to a country or state bounded by a river; and the English com-
mon law does not allow the riparian owner, under the grant of the
sovereign, of lands bounded on tide waters, to go beyond ordinary
high water mark. (a) Such grants are construed most favorably
for the king, and against the grantee; and Sir William Scott has
vindicated (b) such a construction as founded in wise policy; for
grants from the crown are made by a trustee for the public, and
no alienation should be presumed that was not clearly and indis-
putably expressed.
(3) Highways.- Every thoroughfare which is used by the
public, and is, in the language of the English books, "common
(f) Co. Litt. 48, b. [See iv. 441, n. 1.]
(g) Bayley, J., in Scratton v. Brown, 4 B. & C. 485. So, also, as to admiralty
jurisdiction. See supra, i. 366.
(h) 5 Wheat. 374.
(a) [Ante, 427, n. 1.] Parsons, C. J., in Storer v. Freeman, 6 Mass. 438; Cortelyou
v. Van Brundt, 2 Johns. 357. In Kean v. Stetson, 5 Pick. 492, it was considered that
the whole of a navigable river included within high water mark, on each side, was a
public highway, and owners of the adjoining lands have no right to erect wharves
and other obstructions between high and low water mark, if it materially injure or
straighten the passage for vessels and boats. A grant or prescription to occupy the
flats of a navigable river with wharves and other erections, is always upon the implied
condition, that they do not essentially impair the public easements in the stream, for
then the erection would become a nuisance.
(b) 5 C. Rob. 182. In Hollister v. Union Company, 9 Conn. 436, a grant on a
navigable river was not construed so as to impede the reasonable improvements of the
navigation, though remote and consequential damages to the banks or shores of the
river might ensue.
[568]
LECT. LII.]
* 432
OF REAL PROPERTY.
to all the king's subjects," is a highway, whether it be a carriage
way, a horse way, a foot way, or a navigable river. It is, says
Lord Holt, the genus of all public ways. (c) The law with respect
to public highways and to fresh water rivers is the same, and the
analogy perfect, as concerns the right of soil. The presumption
is, that the owners of the land on each side go to the centre of
the road, and they have the exclusive right to the soil, subject
to the right of passage in the public. (d)¹ Being owners of the
(c) The Queen v. Saintliff, 6 Mod. 255.
(d) The law is well settled, that where a mere easement is taken for a public high-
way, the soil and freehold remain in the owner of the land, incumbered only with the
easement, or right of passage in the public. Dovaston v. Payne, 2 H. Bl. 527.
And upon the discontinuance of the highway, the soil and freehold revert to the owner
of the land. Fairfield v. Williams, 4 Mass. 427; Perley v. Chandler, 6 id. 454; Stack-
pole v. Healey, 16 Mass. 33; Mayor, &c., of Savannah v. Steamboat Company, R. M.
Charlton, 342; United States v. Harris, 1 Sumner, 21, 37; Nicholson v. Stockett, 1
Walker (Miss.), 67; In the Matter of John and Cherry Streets, 19 Wend. 659, 666;
¹ Highways.-(a) A highway is said not
to be an easement, but a dedication to the
public of the occupation of the surface of
the land for the purpose of passing and
repassing; the public generally assuming
the obligation of repairing it. Rangeley
v. Midland R. Co., L. R. 3 Ch. 306, 310,
311. And it need not be a thoroughfare
in the sense of being open at both ends,
as a cul-de-sac may be dedicated or laid
out as such. Bateman v. Bluck, 18 Q. B.
870; The People v. Kingman, 24 N. Y.
559; Danforth v. Durell, 8 Allen, 242;
Stone v. Brooks, 35 Cal. 489. But see
People v. Jackson, 7 Mich. 432; Tillman
v. People, 12 Mich. 401; Holdane v. Cold
Spring, 23 Barb. 103; 21 N. Y. 474.
as to dedication, post, 451, n. 1.
See,
(b) As to the Rights of the Public.—Where
private property cannot be taken without
compensation, it is unlawful to impose
any additional burden on land under a
highway without paying for it; such as
allowing the public to depasture cattle on
the highway; Woodruff v. Neal, 28 Conn.
165;
Harrison v. Brown, 5 Wis. 27;
Jewett v. Gage, 55 Me. 538; contra, Har-
denburgh v. Lockwood, 25 Barb. 9; a
market; State v. Laverack, 5 Vroom
(34 N. J.), 201; a steam railroad; Williams
v. N. Y. C. R.R., 16 N. Y. 97; People v.
Kerr, 27 N. Y. 188, 205; Gray v. First
Divn. St.P. R.R., 13 Minn. 315; Att.
Gen. v. Morris & E. R.R., 4 C. E. Green,
386, ib. 575; but see Mercer v. Pittsburgh,
Ft. W., & C. R.R., 36 Penn. St. 99; but
not a horse railroad; Elliot v. Fairhaven
& W. R.R., 32 Conn. 579; Cincinnati
Street Railway v. Cumminsville, 14 Ohio
St. 524; Brown v. Duplessis, 14 La. An.
842; Hinchman v. Paterson H. R.R.,
2 C. E. Green (17 N. J. Eq.), 75; Boston
v. Richardson, 13 Allen, 146, 160; Hobart
v. Milwaukee R.R. Co., 27 Wis. 194. See
Commonwealth v. Temple, 14 Gray, 69;
contra, Craig v. Roch. & B. R.R., 39 N. Y.
404; Reg. v. Train, 9 Cox C. C. 180. Prob-
ably gas pipes could not be laid without
compensation; Galbreath v. Armour, 4
Bell App. Cas. 374; Boston v. Richardson,
13 Allen, 146, 160; or telegraph posts;
Reg. v. U. K. Tel. Co., 9 Cox C. C. 174.
See Dickey v. Maine Tel. Co., 46 Me. 483;
Commonwealth v. Boston, 97 Mass. 555.
But any use may be made of the land
which is conducive to the enjoyment of
the public right, such as the making of
culverts, drains, and sewers for the
cleansing of the streets. West v. Ban-
croft, 32 Vt. 367; Cone v. Hartford, 28
•
[569]
* 433
[PART VI.
OF REAL PROPERTY.
soil, they have a right to all ordinary remedies for the freehold.
They may maintain an action of ejectment for encroachments
upon the road, or an assize if disseised of it, or trespass against
any person who digs up the soil of it, or cuts down any
*433 trees growing on the side of the road, and *left there for
shade or ornament. The freehold and all profits belong to
the owners of the adjoining lands. They may carry water in
pipes under the highway, and have every use and remedy that
is consistent with the servitude or easement of a way over it,
Nelson, J., 12 Wend. 371, 373. It is a principle of the common law, and equally the
law in every state, unless specially controlled. In one of the cases above cited, the
owner was held to be restored to the use of the soil, though he had received compen-
sation for it.
Conn. 363; People v. Kerr, 27 N. Y. 188,
204; Kelsey v. King, 32 Barb. 410;
Turner v. Dartmouth, 13 Allen, 291;
Boston v. Richardson, ib. 146, 159; Frank-
lin v. Fisk, ib. 211. But see, as to quar-
ries for repairs, Kelly v. Donahoe, 2 Met.
(Ky.) 482. And when the surface of land
has been occupied for a public use, and
paid for, it may be applied to another
similar public use without further compen-
sation. Chase v. Sutton Manuf. Co., 4
Cush. 152; 13 All. 160; Heath v. Barman,
49 Barb. 496.
(c) The text, 433, and cases n. (a), are
confirmed by Chamberlain v. Enfield, 43
N. H. 356. And the owner of the free-
hold, by reason of his general property,
may maintain an action for the erection
of a bay window over the highway. Cod-
man v. Evans, 5 Allen, 308; post, 451,
n. 1; St. Mary, Newington, v. Jacobs, L.
R. 7 Q. B. 47, 54.
(d) The text, 434, and cases note (a),
as to the fee passing to the centre of the
way in a grant bounded by it, is confirmed
by 427, n. 1; Banks v. Ogden, 2 Wall.
57; Berridge v. Ward, 10 C. B. N. s. 400;
Queen v. Strand Board of Works, 4 Best
& S. 526, 551; Hoboken Land Co. v.
Kerrigan, 31 N. J. 13; Boston v. Richard-
son, 13 Allen, 146, 153; Marsh v. Burt,
34 Vt. 289; Codman v. Evans, 1 Allen,
844. So a conveyance of lots by number
on a plan referred to and made public
when the plan represents them as bounded
by a street. Bissell v. N. Y. C. R.R., 23
N. Y. 61; Perrin v. N. Y. C. R.R., 36 N.
Y. 120; Berridge v. Ward, sup. And
when land is sold bounded " on a passage
called H. Av. on said plan," the purchaser
has a right to have the way kept open for
its whole length as delineated. Rogers v.
Parker, 9 Gray, 445; at least as far as the
the next open street on the side of the lot
purchased; Hawley v. Mayor, &c., of
Baltimore, 33 Md. 270, 280; Att. Gen. v.
Morris & E. R.R., 4 C. E. Green, 386;
but see ib. 575. See, also, Espley v.
Wilkes, L. R. 7 Ex. 298. But if the
grantor has no interest in the land under
the street, there is no implied covenant
that the street shall remain open. Howe
v. Alger, 4 Allen, 206. See, also, as to
lands marked "Play Ground” and “Or-
namental Grounds," Light v. Goddard,
11 Allen, 5. It has been held that there
is no such covenant or any grant of a
right of way when the supposed passage
referred to as a boundary, although on
the grantor's land, has neither been opened
nor dedicated to the public, as by the pub-
lication of a plan with the way laid down
upon it. Hopkinson v. McKnight, 31 N.
J. 422. See, further, post, 451, n. 1.
[570]
LECT. LII.]
* 433
OF REAL PROPERTY.
and with police regulations. (a) The established inference of
law is, that a conveyance of land bounded on a public highway
carries with it the fee to the centre of the road, as part and parcel
of the grant. The idea of an intention in the grantor to with-
hold his interest in a road to the middle of it, after parting with
all his right and title to the adjoining land, is never to be pre-
sumed. It would be contrary to universal practice; and it was
(a) 1 Rol. Abr. 392, B.; 2 Inst. 705; Lade v. Shepherd, Str. 1004; Gibbs, C. J., 7
Taunt. 39; Abbott, C. J., 2 Stark. 463; Doe v. Pearsey, 7 B. & C. 304; Goodtitle v.
Alker, 1 Burr. 133, 143; Headlam v. Headley, Holt N. P. 463; Cortelyou v. Van
Brundt, 2 Johns. 357; Jackson v. Hathaway, 15 id. 447; Makepeace v. Worden, 1
N. H. 16; Peck v. Smith, 1 Conn. 103; Perley v. Chandler, 6 Mass. 454; Robbins v.
Borman, 1 Pick. 122; Adams v. Emerson, 6 Pick. 57; Writter v. Harvey, 1 M'Cord,
67; Bolling v. Mayor of P., 3 Rand. 563; Chambers v. Furry, 1 Yeates, 167; Pomeroy
v. Mills, 3 Vt. 279; Gidney v. Earll, 12 Wend. 98; Mayor, &c., of Savannah v. Steam-
boat Company, R. M. Charlton, 342. The owner of the land over which a public
highway passes, if he digs a raceway across the road, and builds a bridge over it,
and a traveller sustains damage by its being out of repair, is liable in damages.
Dygert v. Schenck, 23 Wend. 446. The statute of New York (N. Y. Revised
Statutes, i. 525) allowing the owners of lands adjoining highways to plant trees
on the sides of the road, and to bring actions of trespass for injuring them, assumes
and affirms the principle of the common law in relation to such rights. It specially
declares that all trees standing or lying on any land over which a highway is laid
out, are for the use of the owner of the land, except such as may be requisite to
make or repair the highway or bridges on the land. Though a turnpike corpora-
tion has only an easement in the land over which the turnpike road is located, a grant
of the use of the land necessary for the enjoyment of the franchise as by erecting
toll-houses, and digging wells and cellars for their accommodation, is necessarily
implied. Tucker v. Tower, 9 Pick. 109. By the law of Louisiana, which follows in
this respect the civil and not the common law, the soil of public highways is in the
public. Renthrop v. Bourg, 4 Mart. (La.) 97; Dig. 43. 8. 2. 21. In the city of New
York, the rule is, that if a lot be sold, bounded on a street as designated on a map of
the city, or of the owner's land, the purchaser takes the lot with the indefeasible
privilege of a right of way in the street as an easement. The fee of the street remains
in the vendor, but subject to the easement, and the value of his fee is but nominal. This
right of way is founded on an implied covenant in the grant. The street is considered,
by means of the sale and map, as dedicated to the public by the vendor, when the
municipal authorities shall think proper to open the street. In the Matter of Lewis
Street, 2 Wend. 472; Livingston v. Mayor of New York, 8 id. 85; Wyman v. Mayor
of New York, 11 id. 486. The cases of City of Cincinnati v. White, 6 Peters,
431; Sinclair v. Comstock, Harr. Ch. (Mich.) 404, and of The Trustees of Watertown
v. Cowen, 4 Paige, 510, lay down the same rule, that if the owner of lands in a city
or village lays the same out in lots and streets, and sets apart ground for a public
square or common, it is a dedication of the streets or squares to the public, of which
the grantees cannot be deprived. [Congreve v. Smith, 18 N. Y. 79, 84. See Wood-
ring v. Forks Township, 28 Penn. St. 355. He cannot obstruct the way to lay down
gas pipes to his house without the authority of Parliament. Queen v. Longton Gas
Co., 2 El. & El. 650.]
[571]
# 435
[PART VI.
OF REAL PROPERTY.
said, in Peck v. Smith, (b) that there was no instance where the
fee of a highway, as distinct from the adjoining land, was ever
retained by the vendor. It would require an express declaration,
or something equivalent thereto, to sustain such an infer-
*434 ence; and it may be considered as the * general rule, that
a grant of land bounded upon a highway or river carries
the fee in the highway or river to the centre of it, provided the
grantor at the time owned to the centre, and there be no words.
or specific description to show a contrary intent. (a) But it is
competent for the owner of a farm or lot, having one or more of
its sides on a public highway, to bound it by express terms on
the side or edge of the highway, so as to rebut the presumption
of law, and thereby reserve to himself his latent fee in the high-
way. He may convey the adjoining land without the soil under
the highway, or the soil under the highway without the adjoining
land. If the soil under the highway passes by a deed of the adjoin-
ing land, it passes as parcel of the land, and not as an appur-
*435 tenant. It is equally competent for the riparian proprietor
to sell his upland to the top or edge of the bank of a river
and to reserve the stream or flats below high water mark, if he
does it by clear and specific boundaries. (a) The purchaser, in
such a case, takes the bank of the river as it is, or may thereafter
be, by alluvion or decrease of the flow of the river. He takes it
subject to the common incidents which may diminish or increase
the extent of his boundaries. (b) He may also convey the bed
of a stream separate from the lands which bound it. (c)
(b) 1 Conn. 103.
(a) 1 Rol. Abr. 392, B. pl. 5; Harg. Law Tr. 5; Stevens v. Whistler, 11 East, 51;
Headlam v. Headley, Holt N. P. 463; Wright v. Howard, 1 Sim. & Stu. 190; Brown
v. Kennedy, 5 Harr. & J. 195; Cortelyou v. Van Brundt, 2 Johns. 357; Jackson v.
Hathaway, 15 id. 447; Canal Commissioners v. The People, 5 Wend. 423; Lunt v.
Holland, 14 Mass. 149; Hatch v. Dwight, 17 id. 289; Claremont v. Carlton, 2 N. H.
369; Luce v. Carley, 24 Wend. 451; Morrison v. Keen, 3 Greenl. 474; Chatham v.
Brainard, 11 Conn. 60; Champlin v. Pendleton, 13 id. 23; Johnson v. Anderson, 18
Me. 76; Sibley v. Holden, 10 Pick. 249. Contra, Tyler v. Hammond, 11 Pick. 193.
(a) Storer v. Freeman, 6 Mass. 435; Hatch v. Dwight, 17 id. 299; Jackson v.
Hathaway, 15 Johns. 447; Webber v. Eastern R.R. Company, 2 Met. 151; Child v.
Starr, 4 Hill (N. Y.), 369, 373, 374, 381; Dunlap v. Stetson, 4 Mason, 349.
(b) Adams v. Frothingham, 3 Mass. 352; Scratton v. Brown, 4 B. & C. 485; Dun-
lap v. Stetson, 4 Mason, 349. A river where the tide does not ebb and flow has no
shores in the legal sense. It has ripa, but not littus; and shores, when applied to such
a river, mean the water's edge, or margin of the stream. Child v. Starr, 4 Hill, 376,
880, 381
(c) Den v. Wright, 1 Peters C. C. 64. See the notes to the case of Dovaston v.
[ 572]
LECT. LII.]
* 435
OF REAL PROPERTY.
(4) Servitudes and Vicinage. The civil law treated very
extensively of these incorporeal rights annexed to land; and
what in the common law are termed easements, or a right which
one man has to use the land of another for a special purpose,
went under the general denomination of servitudes, because they
were charges on one estate for the benefit of another. Toullier
defines servitudes to be real rights, jura in re, existing in the
property of another. Like incorporeal hereditaments, they have
been held not to pass without a grant. (d) By virtue of such a
right, the proprietor of the estate charged is bound to permit, or
not to do, certain acts in relation to his estate, for the utility or
accommodation of a third person, or of the possessor of an adjoin-
ing estate. The term is a metaphorical expression, borrowed from
personal servitude, but the charge is entirely attached to real
estates, and not to the person. Servitutum ea natura est, ut
aliquid patiatur aut non faciat. Servitutem non hominem debere
sed rem. (e)
Payne, 2 H. Bl. 527, in Smith's Leading Cases, Law Library, N. s. xxv., in which the
English, and especially the American editor, Mr. Wallace, has condensed and classified
the principles respecting highways and riparian rights, deduced from the numerous
cases, with diligence, skill, and usefulness.
(d) Orleans Navigation Company v. New Orleans, 2 Mart. (La.) 214. Easements
may arise by implied grant, as upon the severance of an estate by a grant of part
thereof, all those continuous and apparent easements continue which have been used
by the owner during the unity of the estate, and without which the enjoyment of the
severed portions could not be fully had, for no man can derogate from his own grant.
Easements of necessity are also implied as incidents to a grant. In Gale & Whatley's
Treatise of Easements, the numerous English cases on this subject are cited, and
critically and skilfully analyzed. See pp. 49 to 86. The New York edition of this
treatise by Mr. Hammond is much improved by the addition of American cases. [See
419, n. 1, B.]
(e) Dig. 8. 1. 15; ib. 8. 5. 6. 2. Toullier's Droit Civil Français, iii. n. 376; Insti-
tutes of the Civil Law of Spain, by Doctors Asso and Manuel, translated by L. F. C.
Johnston, 1825. This digest of the civil jurisprudence of Spain collects summarily
and states with great precision the Spanish law concerning servitudes, both in town
and country (lib. 2, tit. 6), and it appears to be a very close adoption of the distinctions
of the civil law on the subject of rural and city services. The Code Napoleon, b. 2,
tit. 4, has also condensed, and the Civil Code of Louisiana has borrowed from it, the
principles of the civil law on the subject of servitudes. Before the promulgation of
the code, there were many French treatises on servitudes, and in the Répertoire de
Jurisprudence, par Merlin, and in his Questions de Droit, tit. Servitude, a crowd of
Italian, German, and French treatises on servitudes are cited, and among them the
Traité des Servitudes, by Lalaure, which Toullier says has been of great use to all
succeeding writers. The subject is treated at large by Merlin, and he has enriched it
with forensic discussions. The treatise by Desgodets was a simple commentary upon
the law of buildings, under the custom of Paris; but since the era of the code, M. La
[ 573 ]
• 436
[PART VI.
OF REAL PROPERTY.
The regulations in the civil law on the subject of urban and
rural servitudes were just and equitable, and the provisions made
to define and protect those rights were far more minute
436 and precise than those which are to be found *on the same
subjects in the books of the common law; and it is diffi-
cult to solve many questions arising on those rights, without hav-
ing recourse to the solid and luminous principles of the civil law,
which are of permanent and universal application. (a)
In cities, where the population is dense, and the buildings com-
pact, a great variety of urban services grow out of the relation of
vicinage. There is the right of support, which arises from con-
tract, or prescription, which implies a grant. This right is where
the owner of a house stipulates to allow his neighbor to rest his
timbers on the walls of his house. There is also the servitude
of drip, by which one man engages to permit the waters flowing
from the roof of his neighbor's house to fall on his estate. So
there is the right of drain, or to convey water in pipes through
or over the estate of another. The right of way may also be
attached to a house, entry, gate, well, or city lot, as well as to a
country farm. These servitudes or easements must be created
by the owner, and one tenant in common cannot establish them
upon the common property without the consent of his co-
tenant. (b) The exercise of these urban and rural servitudes
Page has published two octavo volumes, entitled Lois des Batimens, ou le Nouveau
Desgodets, in which the law of vicinage, in relation to city servitudes is examined with
great minuteness of detail. The Traité du Voisinage, in two volumes octavo, by
M. Fournel, a French lawyer of the old régime, discusses at large the different subjects
embraced by the law of vicinage, in an alphabetical or dictionary form; and he is a
learned and voluminous writer, who has published several interesting tracts on various
branches of the law, and who speaks with freedom and contempt of the great mass of
laws and ordinances promulgated by the revolutionists in France prior to 1800, when
the first edition of his work on the law of vicinage appeared. In those egislative
assemblies, he says, there were peu de jurisconsultes, beaucoup d'hommes de loi. Since the
new code, the Traité des Servitudes, suivant les Principes du Code, par M. Pardessus,
is much regarded, and this eminent professor is always cited by Toullier with respect,
though he combats with freedom many of his opinions. Toullier himself (iii. 326–554)
has discussed the whole of this subject of servitudes upon the principles of the code,
with his usual order, accuracy, and learning.
(a) M. Fournel, when speaking of the Roman law in relation to this subject, says,
that Quelque chose que vous démandez aux lois Romaines, elles vous en fournissent la réponse;
and we may say of that law, as the younger Pliny said of Titus Aristo, who was an
accomplished lawyer, and his particular friend: Nihil est quod discere velis, quod ille
docere non possit.
(b) Dig. 8. 1. 2; ib. 8. 2. 19; Pothier, Coutume d'Orleans, Int. to tit. 13, des Ser-
[ 574 ]
LECT. LII.]
437
OF REAL PROPERTY.
may be limited to certain times. The right of drawing water,
for instance, from a neighbor's well may be confined to certain
hours, or a right of passage may be confined to a part of the day,
or to a certain place. (c)
(5) Party Walls. If there be a party wall between
two houses, and the owner of one of the houses pulls it * 437
down, in order to build a new one, and with it he takes
down the party wall belonging equally to him and his neighbor,
vitudes, art. 2, n. 6. See, also, his Traité du Quasi-Contrat de Communauté, passim ;
Institutes of the Laws of Holland, by Van der Linden, b. 1, c. 11, sec. 2; Institutes
of the Civil Law of Spain, by Doctors Asso and Manuel, b. 2, tit. 6; Bell's Principles
of the Law of Scotland, 266-274; Civil Code of Louisiana, arts. 734–738. In Burge's
Comm. on Colonial and Foreign Laws, ii. tit. Servitudes, the law of urban and rural
servitudes under the civil law, and the codes of those nations which have adopted
and modified the civil law, is extensively considered. Servitudes, chargeable upon
the estate in common, such as the right to enter, and search and dig for coal, and
carry it away, would go to alter, injure, waste, and destroy the estate; and any
attempt to do it without common consent, or under some equitable modification, to
be prescribed on partition or otherwise, would subject the party to the action of tres-
pass or waste, or to restraint by injunction at the instance of the dissenting cotenant.
(c) The general rule, in the civil and French as well as in the English law, is, that
the burden of necessary repairs of an easement is cast upon the owner of the domi-
nant and not of the servient tenement, for the easement is for the exclusive benefit
of the former. Dig. Si serv. vend. 1, 6, sec. 2, 1, 8; Code Civil, art. 698; Bracton,
lib. 4, fo. 222; Lord Mansfield, in Taylor v. Whitehead, 2 Doug. 745; Gale & Whatley
on Easements, 308; Prescott v. Williams, 5 Met. 429. The law of vicinage rests on
just foundations. Any act or default of the possessor of a tenement, to the injury of
a party interested in the neighboring tenement, becomes a nuisance. So if a person,
negligently and without ordinary prudence, constructs a hay rick on the extremity of
his land, and with great negligence suffers hay to remain liable to spontaneous igni-
tion, and it takes fire and burns his neighbor's house, he is liable in damages. Vaughan
v. Menlove, 3 Bing. N. C. 468. See, also, to the same point, Tubervil v. Stamp, 1
Salk. 13; Barnard v. Poor, 21 Pick. 378. If a fire occurs by the negligence of the
owner, and destroys his neighbor's house, he is liable in damages; but not if the acci-
dent was inevitable, or the owner not in fault. The principle is, that every man is so
bound to deal with his own property as not to injure the property of others. To
erect on the defendant's house eaves and a pipe, overhanging and conducting water
on land in the occupation of a tenant, is a permanent injury, which gives an action
on the case to the reversioner. Tucker v. Newman, 3 Perry & Dav. 14. If sparks
from a railway or steamboat engine set fire to an erection on an adjoining field or
building, the liability of the company for the injury will depend upon the question of
negligence on their part. Aldridge v. G. Western R. Co., 3 Mann & Gr. 515; Cook
v. Champlain T. Company, 1 Denio, 92; 8. P. supra, ii. 284; [Fero v. Buffalo & S. L.
R.R., 22 N. Y. 209; Smith v. London & S. W. R. Co., L. R. 6 C. P. 14. But compare
Pennsylvania R.R. v. Kerr, 62 Penn. St. 353.] A canal company is not liable in dam-
age for a mere accidental breach of a canal. Higgins v. Ches. & Del. Canal Co., 3
Harring. 411. Messrs. Gale & Whatley on Easements have treated of the rights and
remedies arising from nuisances created by vicinage, 275-296, and to that learned work
I refer the reader, as a critical digest of the cases would lead me too far into detail.
[ 575 ]
* 437
[PART VI.
OF REAL PROPERTY.
and erects a new house and new wall, he is bound, on his part, to
pull down the wall and reinstate it in a reasonable time, and with
the least inconvenience; and if the necessity of the reparation
of the old wall be established, the neighbor is bound to contribute
ratably to the expense of the new wall. But he is not bound to
contribute to building the new wall higher than the old one, nor
with more costly materials. All such extra expense must be
borne exclusively by him who pulls down and rebuilds. (a)¹ If
the owner of a house in a compact town finds it necessary to pull
it down, and remove the foundations of his building, and he gives
due notice of his intention to the owner of the adjoining house,
he is not answerable for the injury which the owner of that house
may sustain by the operation, provided he remove his own with
(a) Campbell v. Meesir, 4 Johns. Ch. 334; Pothier, du Quasi Contrat de Commu-
nauté, n. 187–192, 220, 221.
1 (a) Party Walls. When a party
wall is destroyed by fire, the joint owners
are remitted to their original title to the
division line; and if one rebuilds on the
old foundation so that part of the wall
stands on land of the other, the latter
may use that part without paying for it.
(Campbell v. Meesir, sup., limited ;) Sher-
red v. Cisco, 4 Sandf. 480; Orman v. Day,
5 Fla. 385; Partridge v. Gilbert, 15 N. Y.
601; Dowling v. Hennings, 20 Md. 179.
So the easement in a party wall is termi-
nated by its decay. Dowling v. Hennings,
sup. See generally Phillips v. Boardman,
4 Allen, 147. Campbell v. Meesir is ap-
proved, and Sherred v. Cisco condemned
incidentally in Vollmer's Appeal, 61 Penn.
St. 118. Party walls are regulated by
statute in some states. Thus, in Louisi-
ana, when a party has built a wall on
his own land an adjoining owner may
make it a wall in common by paying to
the person who has made the advance
the half of what he has laid out for its
construction. Costa v. Whitehead, 20 La.
An. 341; Auch v. Labouisse, ib. 553. See
Vollmer's Appeal, sup. As to what is
evidence of an ouster sufficient to sustain
trespass, see Stedman v. Smith, 8 El. &
Bl. 1; case lies for an injury to the wall
by negligent digging on defendant's land,
Moody v. McClelland, 39 Ala. 45. As to
covenants relating to party walls, see iv.
480, n. 1, A. (a)..
(b) Lateral Support. — The late Eng-
lish cases establish the principle that if
land is dug away to such an extent that
the adjoining land would have fallen
whether there were buildings on it or not,
an action will lie, and the buildings may
be allowed for in damages. Brown v.
Robins, 4 H. & N. 186; Stroyan v. Knowles,
6 H. & N. 454; Hunt v. Peake, H. R. V.
Johns. 705. But a man is not prevented
from draining his own land because it
will diminish his neighbor's support by
withdrawing the percolating water, if his
doing so does not derogate from the ex
press or implied terms of his own grant
Popplewell v. Hodkinson, L. R. 4 Ex.
248; see Elliot v. North Eastern R. Co.,
10 H. L. C. 333. And there can be no
recovery if the sinking of the land would
not have caused appreciable damage but
for the buildings upon it.
Smith v.
Thackerah, L. R. 1 C. P. 564; post, 448,
n. 1. These distinctions were not fully
before the court in Foley v. Wyeth, 2
Allen, 131.
[576]
LECT. LII.]
438
OF REAL PROPERTY.
reasonable and ordinary care. (6) Where there had been no
party wall, but the walls of the house pulled down stood wholly
on its lot, yet if the beams of the other house rested upon the
wall pulled down, and had done so for a period sufficient to estab-
lish an easement by prescription, the owner of the adjoining house
would be entitled to have his beams inserted for a resting place
in the new wall. Such an easement is continual, without requir-
ing the constant and immediate act of man; and it is an apparent
one, shown by an exterior work; and, consequently, it has the
qualities sufficient by the common law, and also deemed in the
French law sufficient to establish an easement by prescription. (c)
It has been held, in England, that the owners of a party wall,
built at joint expense, and standing partly on the land of each,
are not tenants in common, but each party continues owner
* of his land, and has a right to the use of the wall, and a
remedy for a disturbance of that right. But the common
use of a wall separating adjoining lots belonging to different own-
ers is prima facie evidence that the wall, and the land on which
* 438
(b) 2 Roll. Abr. 564, T. pl. 1; Peyton v. St. Thomas's Hospital, 9 B. & C. 725;
Massey v. Goyder, 4 Carr. & P. 161; Walters v. Pfeil, 1 Moody & M. 362; Wyatt v.
Harrison, 3 B. & Ad. 871. But in this last case it is suggested, that if the house which
is injured by the digging had been ancient, the rule might be otherwise, as that circum-
stance might imply the consent of the adjoining proprietor to its erection. Buildings
which are ancient, or erected upon ancient foundations, or protected by prescription,
cannot lawfully be disturbed by deep excavations or other improvements on adjoin-
ing lots.
But otherwise a person may make reasonable improvements and excava-
tions on his own ground, though they should injure or endanger an edifice on the
adjoining land, by digging near and deeper than its foundations, provided he exercises
ordinary care and skill; and the injured party does not possess any special privileges,
protecting him from the consequences of such improvements, either by prescription or
grant. Lasala v. Holbrook, 4 Paige, 169; Thurston v. Hancock, 12 Mass. 221; Jones
v. Bird, 5 B. & Ald. 837; Richart v. Scott, 7 Watts, 460; [Moody v. McClelland, 39
Ala. 45.] Whether due care has been used in the case is a question of fact for a jury.
Dodd v. Holme, 3 Neville & Mann. 739; 1 Ad. & El. 493, s. c. The taking proper pre-
autions to prevent injury to adjoining walls in disturbing foundations is indispensable,
t› exempt the party from responsibility for special loss. Trower v. Chadwick, 3 Bing.
N. C. 334; Pierce v. Musson, 17 La. 389; Pardessus, Traité des Servitudes, 302; Par-
tridge v. Scott, 3 M. & W. 220. If a man builds his house at the extremity of his
land, he does not thereby and without a grant acquire any rights of easement or sup-
port over his neighbor's land. See Gale & Whatley's Treatise on Easements, 216–267,
where all the cases are cited and commented upon as to the right of support, and of
making excavations adjoining another's land. The civil and the French law are also
referred to in that and other branches of the work, whenever they may serve to illus-
trate what may be dubious or obscure in the English law on the topics under discussion.
(c) Code Napoleon, n. 690.
VOL. III.
87
[ 577 ]
438
[PART VI.
OF REAL PROPERTY.
it stands, belong equally to the different owners, in equal, undi-
vided moieties, as tenants in common. (a)
(a) Matts v. Hawkins, 5 Taunt. 20; Cubitt v. Porter, 8 B. & C. 257. The Build-
ing Act of 14 Geo. III. c. 78, has given to each party certain easements in the wall
on the land of the other, and has made special and ample provision on the subject of
houses and partition walls in the city of London. Some statute regulations of that
kind seem to be required in large cities, though in France the customs of Paris and
Orleans have supplied the place of more minute statute provisions. We have in the
Assize, enacted under Henry Fitz-Ailwyne, the first Lord Mayor of London, a. D.
1189, a very curious document respecting the regulation of party walls. After the
great fire in the time of King Stephen, London began to be built of stone and tile.
The walls were to be three feet in thickness, and each owner was to give half of the
space for the wall. If any individual was aggrieved by the encroachment of his
neighbor, he could restrain the workmen by giving security to the sheriff to appear
and prosecute. The mayor and twelve sworn aldermen were to repair to the spot
and hear the allegations of the parties, and decide finally between them. The
encroachment was to be corrected in forty days, or the sheriff executed the remedy.
Sir Francis Palgrave's Rise and Progress of the English Commonwealth, ii. 172, 174,
175. This ordinance is evidence of a strong, vigilant, and civilized police in that
rude and turbulent age. The work of Sir Francis surpasses any modern work
whatever in ingenious and profound antiquarian erudition relative to English legal
antiquities.
Party walls and buildings in the city of Philadelphia are specially regulated by
statute. Purdon's Digest, 984, 985. And the operations of the English statute of
Geo. III., on the rights of neighboring proprietors, and the adjudications on those
rights, are fully stated in Gibbons on the Law of Dilapidations, 110-125. So, in the
city of Washington, by the fundamental regulations in buildings, established in 1791,
it is a condition annexed to title, that when the owner of a lot builds a partition wall
between himself and his neighbor, he shall lay the foundations equally upon the lands
of both, and any person who shall afterwards use the partition wall, or any part of it,
shall reimburse to the first builder a moiety of the charge of such part as he shall use.
Miller v. Elliot, C. C. U. S. March Term, 1839.
In the city of New York, the foundation of every building must not be less than
six feet below the street or sidewalk directly in front of it; and if not, the owner will
not be entitled to recover damages, by the erecting, with ordinary care, of any adjoin-
ing building. Laws of New York, April 10, 1818, c. 106. In respect to trees growing
on or near the division line between two lots of land, it was held, that if the tree grows
on the lot of A., with nearly an equal part of its roots spreading into the ground of
B., the tree nevertheless belongs to A., in whose soil the body of it is. Masters v.
Pollie, 2 Rol. Rep. 141. Lord Holt held that, in such a case, A. and B. were tenants
in common of the tree, though if all the roots grew in the land of A., and the branches
overshadowed the land of B., the branches followed the root, and the property of the
whole tree was in A. Waterman v. Soper, 1 Ld. Raym. 737. In Holder v. Coates,
1 Moody & M. 112, the right was considered as turning upon the fact, in whose land
was the tree first planted. The civil law made such a tree common property. Inst.
2. 1. 31; Dig. 41. 1. 7. 13. See, on this subject, Code Civil, art. 670, 671, 672, 673.
In Griffin v. Bixby, 12 N. H. 454, the same principle was followed, and it was held,
that if a tree stand directly on the line between two owners, it is the common prop-
erty of both, and trespass lies if one of them destroys it without consent of the other.
In Lyman v. Hale, 11 Conn. 177, it was held, after an elaborate discussion, that if a
[ 578 ]
LECT. LII.]
* 438
OF REAL PROPERTY.
(6) Division Fences. In connection with this subject of party
walls, may be mentioned the law concerning division fences
between the owners of adjoining lands. These interests are
generally the object of local statute regulations. The doctrine
is, that at common law the tenant of a close was not bound to
fence against an adjoining close, unless by force of prescription;
and if bound by prescription to fence his close, he was not bound
to fence against any cattle but such as were rightfully in the
adjoining close. If not bound at common law to fence his land,
he was nevertheless bound, at his peril, to keep his cattle on his
own grounds, and prevent them from escaping. (b) The legal
tree stands on the land of A., and extends its roots into, and its branches over the
land of B., the tree, with all its roots and branches, and the fruit thereon, belong
exclusively to A., and B. becomes a trespasser if he appropriates to his own use any
of the overhanging fruit. This appears to have been the best considered, and is not
only the latest, but the most simple and definite rule on the subject. [Dubois v.
Beaver, 25 N. Y. 123.]
In New York, by the statutes of March 19, 1813, c. 35, sec. 20, (and which is still
in force,) the Common Council of the city of New York was authorized to make rules
and regulations for making, amending, and maintaining as well partition fences as
others, in the city. Under this power, the corporation have, by ordinance, (1833,)
regulated partition fences and walls. It requires partition walls to be made and main-
tained by the owners of the land on each side, and if the same can be equally divided,
each party shall make and keep in repair one half part. Disputes concerning the
division of the wall, and the parts to be made or repaired by each owner respectively,
or as to its sufficiency, to be settled by the aldermen and assistant of the ward. If
the wall cannot be conveniently divided, it is to be made and kept in repair at joint
and equal expense. A surplus wall, higher or lower than the regulation, to be at the
individual expense of the owner; and on a neglect of contribution by one party, the
other may make the whole wall, and recover from the other party his proportion of
the expense. The same regulation applies to partition fences.
(b) Rust v. Low, 6 Mass. 90; Thayer v. Arnold, 4 Met. 589; Little v. Lathrop, 5
Greenl. 356; Holladay v. Marsh, 3 Wend. 142; Chancellor Walworth, in 18 Wend.
221; Stackpole v. Healy, 16 Mass. 33; Avery v. Maxwell, 4 N. H. 36; Wells v. Howell,
19 Johns. 385; Stafford v. Ingersoll, 3 Hill, 38. The removal of landmarks is made
a misdemeanor by statute in New York; and the N. Y. Revised Statutes, i. 353–355,
and the Revised Statutes of Ohio, 1831, and of Illinois, 1833, have prescribed rules
for making and maintaining sufficient division fences between the owners of adjoining
lands; but there is an express exception, in New York and Ohio, in favor of owners
choosing to let their lands lie open; and in that case I apprehend that, as a general
rule, the respective owners would be remitted to their common law rights and duties.
The equitable rule towards making and maintaining division fences between adjoining
owners of land, we find in the statutes of the old Plymouth Colony. Plymouth Colony
Laws, ed. 1836, p. 196. The principle of equitable contribution towards the erection
and maintenance of division fences between the owners of adjoining lands exists inde-
pendent of statute provision. In the matter of R. & S. Railroad Company, 4 Paige,
553. It is to be found in the institutions of those nations which are founded upon the
[ 579 ]
438
[PART VI.
OF REAL PROPERTY.
obligation of the tenants of adjoining lands to make and maintain
partition fences, where no prescription exists, and no agreement
has been made, rests entirely on positive provisions by statute;
and trespass will lie against the owner of cattle entering on the
grounds of another, though there be no fence to obstruct them,
unless he can protect himself by statute, or prescription, or agree-
ment. (c)¹ The public have no rights, even in a public highway,
but a right of way or passage; and if cattle be placed in the
highway for the purpose of grazing, and escape into an adjoining
close, the owner of the cattle, unless he owns the soil of that
civil law. Code Napoleon, art. 653, 655, 656; Civil Code of Louisiana, art. 683-
686;
Institutes of the Laws of Holland, by J. van der Linden, b. 1, c. 11, sec. 3. The
statute of Alabama declares a partition fence to be the joint property of both the
adjoining proprietors, and each is bound to keep the entire fence in good repair; and
if one of them will not aid in repairing the fence, the other may cause it to be done,
and recover the value or moiety of the expense. Walker v. Watrous, 8 Ala. 493.
(c) Churchill v. Evans, 1 Taunt. 529; Thayer v. Arnold, 4 Met. 589. The statute
law of Alabama, regulating partition fences (Laws of Alabama, 362), gives an action
for damages against the owner of cattle breaking into any grounds "enclosed with a
strong and sound fence." This would imply that, in that state, no suit lies, if there
be no protecting fence. And in New York, by statute of April 18, 1838, c. 261, if any
person liable to erect or repair a division fenee shall neglect or refuse to do it, he shall
have no action for damages incurred, but shall be liable for all damages accruing by
reason of such neglect or refusal, to the lands, crops, &c., of the party injured. See the
very provisional statute law of Connecticut on the subject. Statutes of Connecticut,
1838, pp. 250-258. In Connecticut the rule of the common law is not adopted, and the
owner of lands is obliged to enclose by a lawful fence, or he cannot maintain an action
of trespass for a damage thereon, by the cattle of another. Studwell v. Ritch, 14
Conn. 292. The statute of Mississippi defines a lawful fence to be one "five feet
high, well staked and ridered, or sufficiently locked, and so close that the beasts break-
ing into the enclosure could not creep through." Revised Code of Mississippi, 1824,
p. 334.
1 Lyon v. Merrick, 105 Mass. 71; Rich-
ardson v. Milburn, 11 Md. 340. When
neither of the owners of a partition fence
repairs it, the common law rule applies.
Webber v. Closson, 35 Me. 26; Myers v.
Dodd, 9 Ind. 290. So cattle killed by a
train, while trespassing on a railroad
track, cannot be recovered for. Price v.
N. J. R.R. & T. Co., 31 N. J. 229; Munger
v. Tonawanda R.R., 4 Comst. 349; s. c.
5 Denio, 255; Hurd v. Rutland & B. R.R.,
25 Vt. 116; R.R. Co. v. Skinner, 19 Penn.
St. 298; Eames v. B. & W. R.R., 14
Allen, 151, Waldron v. P. S. & P. R.R., 35
Me. 422; N. Pa. R.R. v. Rehman, 49 Penn.
St. 101; U. P. R. Co. v. Rollins, 5 Kans.
167. See Logansport, P. & B. R.R. v.
Caldwell, 38 Ill. 280. But there are some
decisions to the contrary, as in some
states the owner of cattle is held not to
be bound to keep them on his own land
unless required by statute. Kerwhacker
v. C. C. & C. R.R., 3 Ohio St. 172; Wright
v. Wright, 21 Conn. 329; Seeley v. Peters,
5 Gilm. 130, cited, Stoner v. Shugart,
45 Ill. 76; Raiford v. Miss. C. R.R., 43
Miss. 233, 239. See Antisdel v. Chicago
& N. W. R. Co., 26 Wis. 145; 6 Am. Law
Rev. 723, 725; Smith v. Fletcher, 440, n
1, (c); iv. 110, n. 1.
[ 580 ]
LECT. LII.]
* 439
OF REAL PROPERTY.
part of the highway on which he placed his cattle, cannot *439
avail himself of the insufficiency of the fences in excuse
of the trespass. (a)
(7) Running Waters. - Important questions have arisen in
respect to the use of running waters, between different pro-
prietors of portions of the same stream; and such questions are
daily growing in interest, as the value of water power is more
and more felt in manufacturing establishments.
Every proprietor of lands on the banks of a river has naturally
an equal right to the use of the water which flows in the stream
adjacent to his lands, as it was wont to run (currere solebat),
without diminution or alteration. No proprietor has a right to
use the water, to the prejudice of other proprietors, above or
below him, unless he has a prior right to divert it, or a title to
some exclusive enjoyment. He has no property in the water
itself, but a simple usufruct while it passes along. Aqua currit
et debet currere ut currere solebat is the language of the law. (b)
Though he may use the water while it runs over his land as an
incident to the land, he cannot unreasonably detain it, or give it
another direction, and he must return it to its ordinary channel
when it leaves his estate. Without the consent of the adjoining
proprietors, he cannot divert or diminish the quantity of water
which would otherwise descend to the proprietors below, nor
throw the water back upon the proprietors above, without a grant,
or an uninterrupted enjoyment of twenty years, which is evi-
dence of it. (c) This is the clear and settled general doc-
(a) It is stated, that in England, a party who makes a partition fence between him
and his neighbor, must have it wholly on his own land. Lawrence, J., in Vowles v.
Miller, 3 Taunt. 138. But in Massachusetts the more reasonable rule is, that partition
fences and ditches are to be placed on the land of both parties equally. Newell v.
Hill, 2 Met. 180.
(b) But if a running stream be not a natural watercourse, but created by the
owner of the land, and it flows beneficially into a neighbor's land, as water raised
from a mine by a steam engine, or water from the spout of the eaves of a row of
houses, thrown upon and used by the owner of adjoining ground, no presumption of
a grant or a right to have that water continued in perpetuity exists, for that would
unreasonably compel the owner of the mine to work it, or keep his engine in motion,
or his row of houses unaltered. Arkwright v. Gell, Exch. E. T. 1839, cited in Gale &
Whatley on Easements, 182. [5 M. & W. 203; Mason v. Shrewsbury & H. R. Co., L. R.
6 Q. B. 578.]
(c) Dig. 39. 3. 4. 10; Code, lib. 3, t. 34, 1, 7; Pothier, Traité du Contrat de Société,
second App. n. 236, 237; Toullier, iii. 88, n. 133; Luttrel's Case, 4 Co. 87, a.; Suury
v. Piggot, 3 Bulst. 339; s. c. Popham, 166; Hays v. Hays, 19 La. 351; Brown v. Best,
[ 581 ]
* 440
[PART VI.
OF REAL PROPERTY.
*440 trine on the subject, and all the difficulty that arises
consists in the application. The owner must so use and
*
1 Wils. 174; Bealey v. Shaw, 6 East, 208; Wright v. Howard, 1 Sim. & Stu. 190;
Saunders v. Newman, 1 B. & Ald. 258; Williams v. Morland, 2 B. & C. 915; Mason
v. Hill, 3 B. & Ad. 304; 5 id. 1; s. c. Gardner v. Village of Newburgh, 2 Johns. Ch.
162; Belknap v. Belknap, ib. 463; Merritt v. Parker, 1 Coxe (N. J.), 460; Tyler v.
Wilkinson, 4 Mason, 397; Coalter v. Hunter, 4 Rand. 58; Hammond v. Fuller, 1 Paige,
197; Hutchinson v. Coleman, 5 Halst. 74; King v. Tiffany, 9 Conn. 162; Blanchard
v. Baker, 8 Greenl. 253; Omelvany v. Jaggers, 2 Hill (S. C.), 634, 640; St. Louis v.
St. Louis, Stuart (Lower Canada), 575; Martin v. Jett, 12 La. 501; Webb v. The
Portland Manuf. Company, 3 Sumner, 190; Davis v. Fuller, 12 Vt. 178; Evans v.
Merriweather, 3 Scam. 492; Shreve v. Voorhees, 2 Green Ch. 25; Parker v. Griswold,
17 Conn. 288. In the case of Barron & Craig v. Corporation of Baltimore (American
Jurist, n. 4, p. 203), the corporation, in the exercise of their municipal powers, diverted
certain streams from their natural channels to a point near the plaintiff's wharf, on
navigable water, within the harbor and city of Baltimore, to which point a large
deposit of sand and earth was carried down by the streams, and injured the value of
the wharf. It was held that a private action lay for the damage arising from this cor-
porate act. It is stated to have been a rule in the French law, that the owner of the
higher land had a right to divert a stream to his own utility, and that the owner of
the land below could not contest it in the absence of a grant. Merlin, Rep. Jurisp.
tit. Cours d'Eau. But the civil code very equitably qualified this doctrine. Code
Civil, art. 641, 643, 644.
The rights respecting running streams, between adjoining proprietors of lands, are
regulated by very precise rules in Pennsylvania. Thus, in M'Calmont v. Whittaker,
3 Rawle, 84, the water power belonging to a riparian owner was considered as con-
sisting of the difference of level between the surface where the stream in its natural surface
first touches his land, and the surface where it leaves it. The stream under that limitation
of right might be occupied, in whole or in part, or not at all, without endangering the
right or restricting the mode of its enjoyment, unless there has been an actual, prior,
adverse occupancy protected by the statute of limitations. The riparian owner, by
digging on his own land, cannot legally lower the surface of the water standing on a
pool on the land above him, nor can he enter and lower the surface of the water as it
leaves his land, by deepening the channel in the land below him. In Acton v. Blun-
dell, 12 M. & W. 324, a very important question on water rights arose, and was very
learnedly considered. The judgment of the Court of Exchequer Chamber made a
distinction between waters running on the surface of lands, and flowing below it in a
subterraneous course. The former was open to observation, notorious usage, calcu-
lation, and value, but not the latter; and it was held, that the owner of land through
which water flows in a subterraneous course, has not such a right or interest in it as
to be able to maintain an action against a land owner who digs a well on his own land,
or carries on mining operations in his own land, in the usual manner, and drains away
the water from the land of the adjoining owner, and leaves his well dry. The civil
law was examined, and was found to sustain the judgment of the court. "Marcellus
scribit; cum eo, qui in suo fodiens, vicini fontem avertit, nihil posse agi, nec de dolo
actionem; et sane non debet habere, si non animo nocendi, sed suum agrum meliorem
faciendi id fecit." Dig. lib. 39, tit. 3, sec. 12. This question as to the rights of water
running below the surface, seems not to have been raised and settled in the English
law, and the decision does not affect the rights mentioned in this lecture respecting
running waters over the surface of land. The court went upon the principle which
[582]
LECT. LII.]
* 440
OF REAL PROPERTY.
apply the water as to work no material injury or annoyance to
his neighbor below him, who has an equal right to the subse-
quent use of the same water; nor can he, by dams or any obstruc-
tion, cause the water injuriously to overflow the grounds and
springs of his neighbor above him. (a)¹ Streams of water are
gives to the owner of the soil all that lies beneath the surface, and he has a right to
apply such property to his own purposes at pleasure; and if, in the exercise of that
right, he intercepts or drains his neighbor's underground springs, it is damnum absque
injuria.
(a) Neal v. Henry, 1 Meigs (Tenn.), 17. If the owner of land flowed by a mill
dam, sells the mill and dam and retains the land, the purchaser takes by the grant the
right to overflow the land to the former extent. But if the owner sells the land flowed,
and retains the mill and dam, without reserving the right to flow, he subjects himself
to damage if he does it. Preble v. Reed, 17 Me. 169. The grant of a mill carries
with it the use of the head of water necessary to its enjoyment, with all incidents and
appurtenances, as far as the right to convey to this extent existed in the grantor.
Rackley v. Sprague, 17 Me. 281.
1 Watercourses, &c.— (a) What Use is
unlawful. As stated in the text, the
diminution of a stream, to be unlawful,
must be substantial, and sufficient to
cause actual damage. Elliot v. Fitch-
burg R.R., 10 Cush. 191; Wheatley
v. Chrisman, 24 Penn. St. 298; Wads.
worth v. Tillotson, 15 Conn. 366; Gillett
v. Johnson, 30 Conn. 180; Chatfield v.
Wilson, 31 Vt. 358; Gerrish v. New Mar-
ket Man. Co., 10 Fost. (30 N. H.) 478, 483;
Dilling v. Murray, 6 Porter (Ind.), 324;
Embrey v. Owen, 6 Exch. 353; Wood v.
Waud, 3 Exch. 748, 781. The above
seems to be the true test, on common law
principles (ante, 437, n. 1; post, 448, n. 1),
but perhaps is narrower than the rule
which is often laid down in American
cases, that a riparian proprietor has a
right to the reasonable use of the water.
Springfield v. Harris, 4 Allen, 494; Davis
v. Getchell, 50 Me. 602; Gould v. Boston
Duck Co., 13 Gray, 442; Pitts v. Lan-
caster Mills, 13 Met. 156; Hayes v. Wal-
dron, 44 N. H. 580; Snow v. Parsons,
28 Vt. 459. Even in England it has been
said that a riparian proprietor has a right
to the ordinary use of the water for do-
mestic purposes, whatever the effect upon
those below him. Miner v. Gilmour, 12
Moore P. C. 131, 156, cited and approved
in Nuttall v. Bracewell, L. R. 2 Ex. 1;
Stein v. Burden, 29 Ala. 127; Springfield
v. Harris, 4 Allen, 494. But if the water
is used in a manner which is unlawful by
the above tests, as if it be detained certain
hours each day; Sampson v. Hoddinott,
1 C. B. N. s. 590; or permanently diverted;
Tillotson v. Smith, 32 N. H. 90; Chatfield
v. Wilson, 27 Vt. 670; 31 Vt. 358; Corn-
ing v. Troy Iron and Nail Factory, 40 N.
Y. 191, 204; Van Hoesen v. Coventry,
10 Barb. 518; Parker v. Griswold, 17
Conn. 288; or if ice be cut as fac. as
formed; Mill R. Woollen Manuf. Co. v.
Smith, 34 Conn. 462; nominal damages
may be recovered, although the plaintiff,
from not actually using the water, has
not been damnified beyond the infraction
of his right. See cases last cited, and
Wood v. Waud, 3 Exch. 748, 772; post,
448, n. 1.
The statement in the text as to dams
is confirmed by McCoy v. Danley, 20
Penn. St. 85. But the cause of action
does not accrue on the building of the
dam, but only when the upper land is
actually flowed. Carlisle v. Cooper, 4 C.
E. Green (19 N. J. Eq.), 256; 6 C. E.
Green (21 N. J. Eq.), 576.
(b) Subterranean Waters. — The general
right to drain subterranean waters not
[583]
* 440
[PART VI.
OF REAL PROPERTY.
intended for the use and comfort of man; and it would be unrea-
sonable, and contrary to the universal sense of mankind, to debar
flowing in definite channels, although
feeding a spring or stream, is asserted in
Chasemore v. Richards, 7 H. L. C. 349;
5 H. & N. (Am. ed.) 982; Frazier v.
Brown, 12 Ohio St. 294; Delhi v. You-
mans, 50 Barb. 316, and cases cited;
Bliss v. Greeley, 45 N. Y. 671; New River
Co. v. Johnson, 2 El. & El. 435; Clark v.
Conroe, 38 Vt. 469, 474; Wheatley v.
Baugh, 25 Penn. St. 528; Greenleaf v.
Francis, 18 Pick. 117; Buffum v. Harris,
5 R. I. 243. But see Bassett v. Salisbury
Manuf. Co., 43 N. H. 569, 577, 579.
(Malice would not alter the case. Chat-
field v. Wilson, 28 Vt. 49; Rawstron v.
Taylor, 11 Exch. 369, 378. But see
Wheatley v. Baugh, sup.; Swett v. Cutts,
50 N. H. 439.) But there may be a dis-
tinction between subterranean water
running in a well defined stream, and
water merely percolating. New River
Co. v. Johnson, 2 El. & El. 435, 445;
Chasemore v. Richards, 7 H. L. C. 349,
374; Wheatley v. Baugh, sup. And in
England the principle has been further
limited by holding that the liberty to
drain subterranean percolations is subject
to the rights of adjoining owners in sur-
face streams, so far that, if the flow of
running surface water is substantially
diminished by percolation from it to a
drain, an injunction may be granted.
Grand Junction Canal Co. v. Shugar, L.
R. 6 Ch. 483.
In Bassett v. S. M. Co., sup., an ob-
struction of natural drainage accompanied
with damage was held actionable unless
caused in the reasonable use of the de-
fendant's own land; and the same test of
reasonable use was afterwards applied to
the obstruction of surface waters not
flowing in a defined stream. Swett v.
Cutts, 50 N. H. 439. These cases dis-
approve the doctrine of the English and
other cases as to the right to drain sub-
terranean percolations. A somewhat
similar decision to Swett v. Cutts is Gill-
ham v. Madison County R.R., 49 Ill. 484,
which disapproves the Massachusetts
decisions following.
(c) Surface Drainage. - In other cases
it is generally laid down without qualifi-
cation with regard to surface drainage
that a party may lawfully obstruct the
flow from his neighbor's land, Dickinson
v. Worcester, 7 Allen, 19; Gannon v.
Hargadon, 10 Allen, 106; Greeley v.
Maine C. R.R., 53 Me. 200; Bowlsby v.
Spear, 2 Vroom (31 N. J.), 351 (explain-
ing Earl v. De Hart, 1 Beasl. 280); Petti-
grew v. Evansville, 25 Wis. 223, 236 et seq.;
Hoyt v. Hudson, 27 Wis. 656; see
Beard v. Murphy, 37 Vt. 99; contra,
Swett v. Cutts, sup. ; or drain his own as
he pleases, although he prevents the water
from coming to his neighbor's land as
before, provided he does not injure a
neighbor by discharging the water upon
his land in an unusual quantity, or at an
unusual place. Rawstron v. Taylor, 11
Exch. 369; Curtis v. Ayrault, 47 N. Y.
73, 78. See, as to the proviso, Miller v.
Laubach, 47 Penn. St. 154; Butler v.
Peck, 16 Ohio St. 334; Waffle v. N. Y. C.
R.R., 58 Barb. 413; Pettigrew v. Evans-
ville, 25 Wis. 223. A party who, even
without negligence, so changes the surface
of his lands that a great quantity of water
collects there, and when a freshet comes
escapes through fissures and floods his
neighbor's mines, has been held liable,
although if he had taken none of the steps
which led to the damage the plaintiff's
loss would have been greater, Smith v.
Fletcher, L. R. 7 Ex. 305, on the principle
of Fletcher v. Rylands, post, iv. 110, n. 1.
With regard to the distinction between
surface drainage and a watercourse, it is
said that a watercourse must be more
than surface drainage occasioned by
extraordinary causes; it is a stream
usually flowing in a definite channel with
[ 584 ]
LECT. LII.]
441
OF REAL PROPERTY.
every riparian proprietor from the application of the water to
domestic, agricultural, and manufacturing purposes, provided the
use of it be made under the limitations which have been men-
tioned; and there will, no doubt, inevitably be, in the exercise
of a perfect right to the use of the water, some evaporation and
decrease of it, and some variations in the weight and velocity of
the current. But de minimis non curat lex, and a right of action
by the proprietor below would not necessarily flow from such
consequences, but would depend upon the nature and extent of the
complaint or injury, and the manner of using the water. All that
the law requires of the party, by or over whose land a stream
passes, is, that he should use the water in a reasonable manner,
and so as not to destroy, or render useless, or materially diminish,
or affect the application of the water by the proprietors above or
below on the stream. He must not shut the gates of his dams,
and detain the water unreasonably, or let it off in unusual
quantities, to the annoyance * of his neighbor. (a) Pothier *441
(a) Beissel v. Sholl, 4 Dallas, 211; Palmer v. Mulligan, 3 Caines, 307; Weston v.
Alden, 8 Mass. 136; Colburn v. Richards, 13 Mass. 420; Cook v. Hull, 3 Pick. 269;
Runnels v. Bullen, 2 N. H. 532; Tyler v. Wilkinson, 4 Mason, 397; Merritt v. Brinck-
erhoff, 17 Johns. 306; Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Williams v.
Morland, 2 B. & C. 910; Thompson v. Crocker, 9 Pick. 59; Johns v. Stephens, 3 Vt.
308; Pugh v. Wheeler, 2 Dev. & Batt. 50; Wadsworth v. Tillotson, 15 Conn. 366. In
Howell v. M'Coy, 3 Rawle, 256, the rule sic utere tuo ut alienum non lædas, in its appli-
cation to the doctrine in the text, was laid down with precision and accuracy. It was
held, that a person had a right to so much of the water of a stream running across his
land as was needful and proper for supplying his tan yard and bark mill, and that he
was bound to return the water so diverted, and not necessarily used and consumed in
his business, without unnecessary diminution and waste, into the natural channel
below, and that he was bound to return it without polluting or poisoning it by admix-
ture with unwholesome substances, to the injury of the owner below. This was in
accordance with the sound doctrine of the common law, as declared in Aldred's Case,
9 Co. 57, b, prohibiting acts creating a nuisance to one's neighbor. [Wheatley v.
Chrisman, 24 Penn. 298; Carhart v. Auburn G. L. Co., 22 Barb. 297.]
So, again, in Arnold v. Foot, 12 Wend. 330, where a spring of water rises in the
land of A., and runs a stream to the land of B., it was held, that A. has no right to
divert the stream from its natural channel, though it be not more than sufficient for
his domestic uses, and for the irrigation of his land. He may use it for domestic
uses, and for his cattle, but not to irrigate his land, if that would exhaust the running
stream. Brown v. Best, 1 Wilson, 174, s. p.; Smith v. Adams, 6 Paige, 435, s. P. The
owner may dig a well on any part of his own land, though he thereby diminishes the
banks. But it may be small, and the flow
not constant. Luther v. Winnisimmet Co.,
9 Cush. 171, 174; Ashley v. Wolcott, 11
Cush. 192; Bowlsby v. Spear, sup.; Gil-
lett v. Johnson, 30 Conn. 180; Hoyt v.
Hudson, 27 Wis. 656; Rawstron v. Taylor,
sup.; Broadbent v. Ramsbotham, 11 Exch
602.
1
[ 585]
* 442
[PART VI.
OF REAL PROPERTY.
lays down the rule very strictly, that the owner of the upper
stream must not raise the water by dams, so as to make it
fall with more abundance and rapidity than it would naturally
do, and injure the proprietor below. (b) But this rule must not
be construed literally, for that would be to deny all valuable use
of the water to the riparian proprietors. It must be subjected
to the qualifications which have been mentioned, otherwise rivers
and streams of water would become utterly useless, either for
manufacturing or agricultural purposes. The just and equitable
principle is given in the Roman law: Sic enim debere quem meli-
orem agrum suum facere, ne vicini deteriorem faciat. (c)
(8) Easements acquired and lost by Prescription. 1.
(Water.) This natural right to the use of waters, as an inci-
dent or particular easement to the land, may be abridged, or
enlarged, or modified, by grant or prescription. (d) Though a
stream be diminished in quantity, or corrupted in quality, by
means of the exercise of certain trades, yet if the occupation of
the party so taking or using it has existed for so long a time as
to raise the presumption of a grant, and which presumption is
the foundation of title by prescription, the other party whose
land is below must take the stream subject to such adverse right;
and twenty years' exclusive enjoyment of the water in any par-
ticular manner, affords, according to the English law, and the
law of New York, Massachusetts, and several other states,
*442 presumption of such a grant. (e) But nothing short of a
*
water in his neighbor's well, in the absence of grant, or adverse user, or malice.
Greenleaf v. Francis, 18 Pick. 117.
(b) Traité du Contrat de Société, second App. n. 236.
(c) The Code Napoleon, n. 640, 641, 643, 644, and the Civil Code of Louisiana,
art. 656, 657, establish the same just rules in the use of running waters.
So, in
North Carolina, Missouri, &c., the regulations of grist mills and mill dams is deemed
a matter of public concern, and subject to statute prescriptions. Revised Statutes of
Missouri, 1835; R. S. North Carolina, c. 74.
(d) Prescription is a title acquired by possession had during the time, and in the
manner fixed by law. Co. Litt. 118, b.
(e) The time of limitation varies in particular states. Thus, in Connecticut and
Vermont, the term of prescription is fifteen years, and in South Carolina five years.
Manning v. Smith, 6 Conn. 289; Martin v. Bigelow, 2 Aiken, 184; Anderson v.
Gilbert, 1 Bay, 375. But the law in South Carolina on the subject of prescription does
not seem to take its rule from the Act of Limitations of 1712, for in Sims v. Davis, 1
Cheeves Law & Eq. 2, it was declared or assumed as settled law, that twenty years
of enjoyment of a way over another's land, was presumptive evidence of right. Even
a right of way over the unenclosed lands of another, may be acquired by twenty years'
[586]
LECT. LII.]
* 442
OF REAL PROPERTY.
contract, or of such a time of enjoyment of water diverted
from the natural channel, or interrupted by dams or other obstruc-
tions, or materially changed in its descent or character, will
justify the owner as against any land owner above or lower down
the stream, to whom such alterations are injurious. In the
character of riparian proprietors, persons are entitled to the
natural flow of the stream without diminution to their injury, and
to them may be applied the observation of Whitlock, J., in Shury
v. Piggot (a) that a watercourse begins ex jure naturæ, and having
taken a course naturally, it cannot be diverted. But, on the
other hand, the owners of artificial works may acquire rights by
actual appropriation, as against the riparian proprietor, and the
extent of the right is to be measured by the extent of the appro-
priation, and the use of the water for a period requisite to estab-
lish a conclusive presumption of right. In such a case, the
natural right of the riparian proprietor becomes subservient to the
acquired right of the manufacturer. (b) The general and estab-
lished doctrine is, that an exclusive enjoyment of water, or of
enjoyment thereof, under an assertion of right by the one party, or admissions thereof
by the other. In Louisiana, the time of prescription varies according to the subject,
from three to thirty years. Civil Code, art. 3435-3476. But I presume that gener-
ally, in this country, we follow the English time of prescription. It was so understood
by Ch. J. Parker, in Gayetty v. Bethune, 14 Mass. 49, and in Gilman v. Tilton, 5 N.
H. 231, and by Chancellor Vroom, in Shreve v. Voorhees in 2 Green (N. J.), 25. In
Louisiana, the right of drip is acquired by prescription, on an enjoyment of ten years
without complaint. Vincent v. Michel, 7 La. 52. In Pennsylvania, the time requisite
to defeat the right to an incorporeal hereditament, by nonuser, is twenty one years.
Dyer v. Dupui, 5 Wharton, 584. The English statute of 2 and 3 Wm. IV. c. 71, com-
monly called the Prescription Act, establishes the prescription of twenty years arising
from the uninterrupted enjoyment of a way, or watercourse, or light, as a legal bar;
and in this respect the statute seems to be declaratory of the preëxisting law, arising,
however, from a presumption to be drawn by the jury. But this statute is liable to
the reproach of being carelessly and obscurely drawn. See Gale & Whatley on Ease-
ments, 97, 123. The statute further declares, that an interruption of the use of an
easement, acquiesced in for a year, with notice thereof, and of the authority under
which it is made, will prevent a right from being acquired. It does not apply to the
extinguishment of an easement already acquired.
(a) 3 Bulst. 339.
(b) Brown v. Best, 1 Wils. 174; Bealey v. Shaw, 6 East, 208; Tyler v. Wilkinson,
4 Mason, 397; Hatch v. Dwight, 17 Mass. 289. The law of watercourses, whether
natural or artificial, is the same; and the uninterrupted flow of water for twenty
years through an artificial canal, will establish a right through an adit artificially
made for draining a mine, and used for a brewery below for twenty years after the
working had ceased, and the mine could not afterwards be so worked as to pollute it.
Magor Chadwick, 11 Ad. & El. 571; [White v. Chapin, 12 Allen, 516; s. c. 97 Mass.
101; Sutcliffe v. Booth, 9 Jur. N. s. 1037; Gaved v. Martyn, 19 C. B. N. s. 732.
Ivimey v. Stocker, L. R. 1 Ch. 396; Nuttall v. Bracewell, L. R. 2 Ex. 1.]
[587]
* 444
[PART VI
OF REAL PROPERTY.
light, or of any other easement, in any particular way, for twenty
years, or for such other period less than twenty years, which in
any particular state is the established period of limitation, (e) and
enjoyed without interruption, becomes an adverse enjoyment suffi-
cient to raise a presumption of title as against a right in any other
person, which might have been, but was not asserted. (d)
*443 * The right is confined to the extent and the mode of
enjoyment, during the twenty years. All that the law
requires is, that the mode or manner of using the water should
not be materially varied, to the prejudice of other owners; and
the proprietor is not bound to use the water in the same precise
manner, or to apply it to the same mill, for such a construction of
the rule would stop all improvements in machinery. (a) He is
only not to vary the enjoyment to the prejudice of his neighbor.
He may, by his erections and dams, increase the quantity of the
water appropriated, or increase the velocity of the current below,
provided no material injury be produced to the land or works of
the occupant of the stream below him, or to his enjoyment of
them. This presumption of title, founded on that enjoyment, is
equally well established in the English (b) and American
*444 law. (c) To render the enjoyment of any easement for
*
(c) State v. Wilkinson, 2 Vt. 480; Cuthbert v. Lawton, 3 M'Cord, 194; Bolivar
M. Co. v. Neponset M. Co., 16 Pick. 241. See, also, p. 443, n. b, c. Less than the
prescribed term of limitation may, under circumstances, raise the presumption of the
dedication of land to the public use. State v. Catlin, 3 Vt. 530. So, the exclusive
enjoyment of an easement, as a right of way, for a less period than twenty years,
may form an equitable estoppel to the claim of another person, who has, by positive
acts of acquiescence, encouraged an innocent purchaser to buy the land to which the
easement was appurtenant. Lewis v. Carstairs, 6 Wharton, 193.
(d) Shaw v. Crawford, 10 Johns. 236; Bealey v. Shaw, 6 East, 214; Johns v.
Stevens, 3 Vt. 316. No time short of twenty years will legalize a nuisance; and it
is no defence to an action on the case for a nuisance, in carrying on the business of a
tallow chandler, that the defendant had carried on a noxious and offensive trade for
three or even ten years before the plaintiff became possessed of his premises. Bliss
v. Hall, 4 Bing. [N. C.] 183.
(a) Palmer v. Kebblewhaite, 2 Show. 250.
(b) Lewis v. Price, Esp. Dig. 636; Bradbury v. Grinsell, 2 Saund. 175, a; Brown
v. Best, 1 Wils. 174; Bealey v. Shaw, 6 East, 208; Balston v. Bensted, 1 Camp. 463;
Saunders v. Newman, 1 B. & Ald. 258; Barker v. Richardson, 4 id. 578; Cross v.
Lewis, 2 B. & C. 686; Williams v. Morland, ib. 910; Livett v. Wilson, 3 Bing. 115;
Gray v. Bond, 2 Brod. & B. 667; Wright v. Howard, 1 Sim. & Stu. 190; Mason v.
Hill, 3 B. & Ad. 304.
(c) Hazard v. Robinson, 3 Mason, 272; Gayetty v. Bethune, 14 Mass. 49; Hoffman
♥. Savage, 15 id. 132; Sherwood v. Burr, 4 Day, 244; Ingraham v. Hutchinson, 2
Conn. 584; Stiles v. Hooker, 7 Cowen, 266; Campbell v. Smith, 3 Halst. 139; Cooper
[ 588]
LECT. LII.]
* 444
OF REAL PROPERTY.
twenty years a presumption juris et de jure, or conclusive
evidence of right, it must have been continued, uninterrupted,
or pacific, and adverse, that is, under a claim of right, with the
v. Smith, 9 Serg. & R. 26; Strickler v. Todd, 10 id. 63; Tyler v. Wilkinson, 4 Mason,
397; Belknap v. Trimble, 3 Paige, 577. In Massachusetts, the common law remedy
against a mill owner for overflowing another's land, is taken away, and a special and
more limited remedy substituted. The provincial statute of 1713 allowed the dams
of corn and saw mills to stand, though they should cause the land of others to be
overflowed, and the injured party was, by a particular process, to have an annual
compensation in damages assessed by a jury. Mills, in the infancy of the country,
were public easements, and required marked encouragement. But this statute was
substantially, and Ch. J. Parker thinks, incautiously, renewed in 1796, when the
necessity of such encouragement to mill erections had ceased, and lands had generally
risen in value. Stowell v. Flagg, 11 Mass. 364. The Massachusetts Revised Statutes
of 1836, p. 676, continued in substance the Colony Act, with equitable and careful
regulations. But the exceptionable principle of the act is, that it allows the land
above the mill to be overflowed, in the first instance, at the pleasure of the mill owner,
and leaves the injured party to seek his compensation subsequently. There are simi-
lar statute provisions in the states of Maine, Rhode Island, and Virginia; and they
appear, said the Ch. Justice, to be material and unjustifiable abridgments of the com-
mon law right to the enjoyment of property. The statute of Massachusetts, of 1713,
and which was continued in Maine, under the modified statutes of 1821 and 1824, was
deemed so inequitable and oppressive to the owners of lands overflowed, that in 1838
a bill was prepared by one, and submitted to another legislature in the state of Maine
for repealing the acts on the subject, so as to leave rights and remedies as to overflow-
ing lands by mills to the operation of the common law, as is the case in most of the
other states. In Virginia, the statute regulations concerning the use of running
streams, and the erection of mill dams, provides, that if a person owning land on both
sides of a stream wishes to build a dam, he may apply at once, without notice to the
owners of the land above and below, for a writ ad quod damnum. The jury summoned
under that writ are to examine the lands above and below belonging to others, and
declare the damages that would arise to the several proprietors, who are then to be
summoned, and the court determines whether, under all circumstances, leave ought
to be given to build the dam. If given, the party applying is laid under certain con-
ditions for preventing the obstruction of the passage for fish and ordinary navigation,
and convenient crossing of the watercourse, as should seem meet. The applicant
upon paying the damages assessed to the parties entitled, may proceed to erect his
mill and dam. 2 Revised Code, c. 235; Crenshaw v. Slate River Company, 6 Rand.
245. There is a similar provision, if a person, desirous to build a mill, owns the land
only on one side of the stream. 1 Revised Code of Virginia, 277; Revised Code of
Mississippi, 1824, p. 336. There are statute provisions of a similar nature in Illinois,
North Carolina, Alabama, &c., relative to the erection of mills and dams affecting
other riparian owners. Revised Laws of Illinois, ed. 1833; 1 N. C. Revised Statutes,
1837, p. 420; Aiken's Ala. Dig. 2d ed. 325. And in Indiana, the act of 1831 declares
minute regulations respecting grist mills and millers. So in Pennsylvania, by statute
of March 23, 1803, the owners of lands adjoining navigable streams of water, except
the rivers Delaware, Lehigh, and Schuylkill, may erect dams for mills and other
waterworks, and use the requisite water therefor, provided they do not obstruct or
impede the navigation of the stream, or prevent the fish from passing up the same.
[Todd v. Austin, 34 Conn. 78.]
[ 589 ]
445
[PART VI.
OF REAL PROPERTY.
implied acquiescence of the owner. (a) The time of enjoyment
requisite for the prescription is deemed to be uninterrupted, when
it is continued from ancestor to heir, and from seller to buyer.
It must be a lawful continuation from one person to another,
*445 and any * interruption of the enjoyment by an adverse
claim and possession destroys the prescription. (a) ¹
The cases usually say, that this right, acquired by twenty
years' undisturbed and uninterrupted enjoyment of an easement,
is founded on the presumption of a grant or release; and if so,
it is not an absolute title, but one that is liable to be rebutted by
1
(a) Bracton, lib. 2, c. 23, sec. 1; ib. lib. 4, c. 38, sec. 1; Co. Litt. 113, b; Code
Napoleon, art. 2229; Sargent v. Ballard, 9 Pick. 251; Rowland v. Wolfe, 1 Bailey
(S. C.), 56; Corning v. Gould, 16 Wend. 531; Colvin v. Burnett, 17 Wend. 564. [See
445, n. 1.]
(a) Inst. Justin. lib. 2, tit. 6, sec. 7, 8;
1
¹ Easements by Prescription. — An inter-
ruption of the enjoyment before a right
is acquired destroys the effect of the
previous user. Pollard v. Barnes, 2 Cush.
191; post, 450. Such is the pulling down
of a temporary dam which caused certain
land to be flowed, although only done to
make way for a permanent one. Branch
v. Doune, 18 Conn. 233. See Carlisle v.
Cooper, 4 C. E. Green (N. J.), 256; s. c.
6 id. 576. But when a dam is a permanent
structure, kept in such repair as is required
for its economical use, a right may be
gained to keep the water up to its ordinary
height, although it has not been kept up
to that height constantly. Carlisle v.
Cooper, sup.; Winnipiseogee Co. v. Young,
40 N. H. 420.
The user must be adverse; Barnes
v. Haynes, 13 Gray, 188; as an unex-
plained user of twenty years is presumed
to be; Hammond v. Zehner, 21 N. Y.
118; Polly v. M'Call, 37 Ala. 20; Blake
v. Everett, 1 Allen, 248; so of one which
begun under an oral gift as distinguished
from a mere license. Stearns v. Janes,
12 Allen, 582; Arbuckle v. Ward, 29 Vt.
43; Miller v. Garlock, 8 Barb. 153. But not
so of the use of the whole water power by
means of a dam, as against the opposite
owner, while he has no occasion to use
Sargent v. Ballard, supra.
the water. Pratt v. Lamson, 2 Allen,
275.
It seems clear on principle that to
obtain a right by prescription the use
should be as of right against all the world,
inasmuch as the right when obtained
binds the fee. Bright v. Walker, 1 Cr.,
M. & R. 211, 221; Aust. Jur. lect. 49, 3d
ed. 837, 838. See lect. 50, ib.
The enjoyment must be with the ac-
quiescence of the owner; so that no right
is gained if the use has not been visible or
known. Hannefin v. Blake, 102 Mass.
297; Carbrey v. Willis, 7 Allen, 368;
Smith v. Miller, 11 Gray, 145; Napier v.
Bulwinkle, 5 Rich. 311, 324; Chadwick
v. Trower, 6 Bing. N. C. 1. But if visible,
knowledge may be presumed without
proof. Perrin v. Garfield, 37 Vt. 304, 311.
Otherwise, it seems, if the alleged servient
owner and his agents have been absent
and ignorant during the whole time.
Bright v. Walker, 1 Cr., M. & R. 211, 219.
So no right is acquired as against a
lunatic; Edson v. Munsell, 10 Allen, 557 ;
a feme covert; McGregor v. Wait, 10 Gray,
72; or a minor; Watkins v. Peck, 13 N.
H. 360.
As to what interference with such ease-
ments is actionable, see 448, n. 1. As to
abandonment, see 449, n. 1.
[ 590 ]
LECT. LII.]
* 447
OF REAL PROPERTY.
circumstances, and is to stand good until the presumption of title
be fully and fairly destroyed. This was the doctrine so late as the
cases of Campbell v. Wilson, (b) and of Livett v. Wilson, (c) and it
is the prevalent language in the books, English and American. (d)
But some of the later English authorities seem to give to this pre-
sumption the most unshaken stability, and they say it is conclusive
evidence of title. In Tyler v. Wilkinson, (e) where the whole law
on the subject is stated with learning, precision, and force, the
presumption is even made to be one juris et de jure, and to go
to the extinguishment of the right in various ways, as well as by
grant. The operation of the presumption, founded on the fact
of the uninterrupted enjoyment of the easement for twenty years,
is said to exist, notwithstanding personal disabilities of partic-
ular proprietors might have intervened, and where, in the ordi-
Lary course of proceedings, grants would not be presumed. (ƒ)
The nature and extent of the right acquired by prior occu-
pancy of a running stream becomes frequently an important and
vexatious question between different riparian proprietors.
* If I am the first person who applies the water of a run-
* 446
ning stream to the purpose of irrigation, or of a mill, I
cannot afterwards be lawfully disturbed in any essential degree,
in the exercise of my right, though I may not have enjoyed it for
twenty years, provided the water be used by me in such a reason-
able manner as not to divert the natural course of the stream from
the lands below, or essentially to destroy the same use of it as it
naturally flowed over the lands of the proprietors above
and below me. (a) Prior occupancy short of * the statute * 447
(b) 3 East, 294.
(c) 3 Bing. 115.
(d) A plea of an easement enjoyed for twenty years under the statute of 2 and 3
William IV., must state that the enjoyment was had as of right. Holford v. Hankin-
son, 5 Q. B. 584.
(e) 4 Mason, 397.
(f) No prescription can give a title to land of which more certain evidence may
be had. It only applies to incorporeal hereditaments, or for what lies in grant.
Wilkinson v. Proud, 11 M. & W. 33; [Carlyon v. Lovering, 1 H. & N. 784, 798; Ferris
v. Brown, 3 Barb. 105; Caldwell v. Copeland, 37 Penn. 427, 431.]
(a) Platt v. Johnson, 15 Johns. 213. In Hatch v. Dwight, 17 Mass. 289, the Ch. J.
went beyond the doctrine in the text, for he said, that the first occupant of a mill site,
by erecting a dam and mill, had a right to water sufficient to work his wheels, even
if it should render useless the privilege of any one above or below upon the same
stream. If the right of prior occupancy, in the case stated, did not go thus far, the
water privilege would seem to be rendered wholly useless for mill purposes to all
parties. A more limited rule was laid down in Martin v. Bigelow, 2 Aiken, 184; for
[591]
* 448
[PART VI.
OF REAL PROPERTY
term of prescription, and without consent or grant, will not
confer any exclusive right, as between different riparian pro-
prietors, to the use of a running stream. (a) If, however, the
prior occupant has enjoyed the use of water in any particular
mode for twenty years, so as to have acquired a title by prescrip-
tion, he is, in that case, entitled to remain undisturbed in his
possession, in the mode and to the extent commensurate with the
right as it has been acquired and defined by enjoyment. (b) But
if the prior use of the stream should have been materially altered
within the twenty years, to the injury or annoyance of any adjoin-
ing occupant, who had, in the mean time, possessed himself of
the use of the water, the title by prescription would be
*448 wanting as to such * alterations, and they would be unlaw-
ful, and, consequently, a ground of action. (a)
2. (Light.) — The elements of air and light are rights or inci-
dents attached to the enjoyment of real estate, and the law gives
weight and effect to the first appropriation of them. They may
be classed under the head of incorporeal hereditaments, and the
Roman law considered things of this kind, consisting in rights
and privileges, as res incorporales. (b) If I build my house close
to my neighbor's wall, I cannot compel him to demolish it, though
it may obstruct my light, for the first occupancy is in him. On
the other hand, the owner of a house will be restrained by injunc-
tion, and be liable to an action upon the case, if he makes any
it was there held, that a mere prior occupancy of a running stream by a mill, did not
prevent another person from using the same water above, on the same stream, in a
prudent way, unless the mill below had been erected, and the water used for it more
than fifteen years, being the period of limitation. The court said, that the common
law on this point was not applicable in Vermont, as it would go to allow the person
who erected the first mill on a small stream to control and defeat all mill privileges on
the same stream above him. So, in Anthony v. Lapham, 5 Pick. 175, it was declared
that the owner of land through which a natural stream flows may use it for watering
his cattle or irrigating his land, but he must use it in the latter way so as to do the
least possible injury to his neighbor below, and he must return the surplus into the
natural channel.
(a) Tyler v. Wilkinson, 4 Mason, 401, 402.
(b) Saunders v. Newman, 1 B. & Ald. 258; Van Bergen v. Van Bergen, 3 Johns.
Ch. 282; Sherwood v. Burr, 4 Day, 244.
(a) Goodrich v. Knapp, MS. case, decided in the Supreme Court of New York,
1828. [The same principle applies to acts substantially in excess of prescriptive rights
already acquired. Crossley v. Lightowler, L. R. 2 Ch. 478; Shrewsbury v. Brown,
25 Vt. 197.]
(b) Inst. 2, 2. [See also Townsend v. McDonald, 2 Kern. 381; Pillsbury v. Moore,
44 Me. 154; 402, n. 1.]
[ 592 ]
LECT. LII.]
* 448
OF REAL PROPERTY.
erections or improvements so as to obstruct the ancient lights of
an adjoining house. The lights must be ancient to entitle them
to this special protection; and it would seem, from the opinion
of the judges in Bury v. Pope, (c) that lights of thirty or forty
years' standing were not deemed ancient within the purview of
the old rule on the subject. There was no doubt, as early as the
English revolution, that window lights, which had become estab-
lished by the legal time of prescription, were entitled to be pro-
tected against obstructions. (d) In modern times the period of
prescription or limitation has been shortened, and the uninter-
rupted and exclusive enjoyment of window lights for twenty
years has been held to be sufficient to raise a presumption of title
to the unobstructed enjoyment of that protection. (e) In Daniel
v. North, (ƒ) it was considered as settled law, that twenty years'
quiet and uninterrupted possession of window lights was sufficient
ground for a jury to presume a grant or covenant, provided there
was evidence that the owner or landlord (and not the tenant
merely) of the opposite premises had knowledge during the
twenty years of the fact. The right so acquired is not absolute,
but prima facie evidence only of right, and it is liable to be
rebutted and destroyed by proof to the contrary, and it is like-
wise subject to qualifications. Thus ancient lights are entitled
to protection as such, in the precise mode, and to the extent
enjoyed during the period which gave them the claim to be
ancient lights, and no further. (g) Nor can a person sustain a
claim to an ancient window light, in derogation of his own grant
of the adjoining ground, without reservation. (h)
(c) Cro. Eliz. 118.
(d) Villers v. Ball, 1 Show. 7; Palmer v. Fletcher, 1 Lev. 122; Aldred's Case, 9
Co. 58.
(e) Wilmot, J., 1761, in Lewis v. Price, Esp. Dig. 636, 2d ed.; s. c. Wms. Saund.
ii. 175, note a, b, c; Darwin v. Upton, Wms. note, ib.; 3 T. R. 159, cited by Buller, J.;
Back v. Stacy, 2 Russ. 121; Manier v. Myers, 4 B. Mon. 520, 521.
(f) 11 East, 371.
(g) Martin v. Goble, 1 Camp. 320.
(h) Palmer v. Fletcher, supra; Cox v. Matthews, 1 Vent. 237; Holt, C. J., in Ros-
well v. Pryor, 6 Mod. 116; Crompton v. Richards, 1 Price, 27; Story v. Odin, 12 Mass.
157. Nor will the making and enjoying window lights for twenty years conclude the
adjoining neighbor, and prevent him from building up against such lights, unless
there be evidence of his knowledge of the fact sufficient to presume a grant. A ten-
ant in possession during the time is not sufficient of itself to raise the presumption,
for he might have been indifferent to the encroachment. Daniel v. North, 11 East,
372. By the custom of the city of London, a man may build to any height, upon
38
VOL. III.
[593]
* 448
[PART VI
OF REAL PROPERTY.
This doctrine of ancient lights, or, in the language of the writers
on the civil law, borrowed from the law itself, of "servitudes of
lights or prospect" attached to estates, is laid down with great
precision in the Pandects, and in the codes of those modern
nations which have made the civil law the basis of their munici-
pal law; (i) and it is evidence of much civilization and refine-
ment in the modifications of property. But the doctrine is not
much relished in this country, owing to the rapid changes and
improvements in our cities and villages. A prescriptive right,
springing up under the narrow limitation in the English law, to
prevent obstructions to window lights, and views, and prospects,
or, on the other hand, to protect a house or garden from being
looked in upon by a neighbor, would affect essentially the value
of vacant lots, or of lots with feeble and low buildings upon
them. (j) It was admitted, in Mahan v. Brown, (k) that a man
might open a window in his own house overlooking the privacy
of B., and unless the right to the window light had been secured
by grant, acquiescence, or otherwise, the only remedy for B.
would be the erection, on his own soil, of an obstruction opposite
the offensive window, and in that way shut out the light.1 At
ancient foundations, although he darkens his neighbor's lights thereby, provided all
the four walls belong to him. A reversioner may recover for obstructing ancient
lights, to the injury of his reversionary interest. Shadwell v. Hutchinson, 3 Carr. &
P. 615.
(i) Vide supra, 436, note a.
(j) The English law does not recognize a servitude of mere prospect, except by
express grant or covenant. Aldred's Case, 9 Co. 58; Tindal, Ch. J. in Pen warden v.
Ching, Moo. & Mal. 400.
(k) 13 Wend. 261.
1 Light and Air.— (a) In England it is
not lawful even to obstruct new windows
if it cannot be done without also obstruct-
ing ancient lights. Tapling v. Jones, 11
H. L. C. 290; 12 C. B. N. s. 826; 11 C. B.
N. s. 283. There is a remedy for the ob-
struction of ancient lights both at law and
in equity, and if such lights are obstructed,
the fact that the owner has contributed
to the diminution of light will not prevent
his maintaining the action or obtaining an
injunction to which he would otherwise
have been entitled. Staight v. Burn, L.
R.5 Ch. 163; Tapling v. Jones, sup.; Mar-
tin v. Headon, L. R. 2 Eq. 425; Calcraft
v. Thompson, 15 W. R. 387; Clarke v.
Clark, L. R. 1 Ch. 16; Yates v. Jack, ib.
295. In many American courts it has
been denied that a right to light and air
could be obtained by prescription. Carrig
v. Dee, 14 Gray, 183; Paine v. Boston, 4
Allen, 168; Mullen v. Stricker, 19 Ohio
St. 135; Haverstick v. Sipe, 33 Penn. St.
368; Cherry v. Stein, 11 Md. 1; Ward v.
Neal, 37 Ala. 500; Pierre v. Fernald, 26
Me. 436; Hubbard v. Town, 33 Vt. 295.
See Napier v. Bulwinkle, 5 Rich. 311. So
in England as to wind for a windmill.
[ 594 ]
LECT. LII.]
* 448
OF REAL PROPERTY.
length the Supreme Court of New York, in Parker v. Foote, (1)
went so far as to declare that the modern English doctrine, on
the subject of lights, was an anomaly in the law, and not applica-
ble to the condition of the cities and villages in this country.
The injury resulting from window views was deemed rather
speculative, and not analogous to the case of ways, commons,
markets, watercourses, &c., where the injury was direct, palpable,
and material; and the same rule of presumption ought not to
apply to two classes of cases so essentially different. Though
this incorporeal servitude of light is familiar to the laws of all
civilized nations, and is, under due regulations, a very valuable
incident to the enjoyment of property, there does not seem to be
any well founded objection to the decision in the case last referred
to, so far as it goes to declare that the enjoyment of the easement
must be uninterrupted for the period of twenty years, and under
a claim or assertion of right, and with the knowledge and acqui-
(7) 19 Wend. 309.
Webb v. Bird, 13 C. B. n. s. 841; s. c. 10
C. B. N. s. 268.
(b) With regard to pollutions of air,
the question whether the plaintiff comes
to a nuisance or the reverse is not now
applied as the test of his right of action.
Bliss v. Hall, 4 Bing. N. C. 183; s. c. 5
Scott, 500; ante, 442, (d); conceded on
both sides in Bamford v. Turnley, 3 Best
& S. 62, 70, 73. An action lies for noxious
vapors which visibly diminish the value
of the plaintiff's property; but whether
a merely personal annoyance is an action-
able nuisance seems to depend on the
time, the place, and the trades carried on
in the neighborhood. St. Helen's Smelt-
ing Co. v. Tipping, 11 H. L. C. 642; s. c.
4 Best & S. 608, 616. See Crossley v.
Lightowler, L. R. 3 Eq. 279, 289; L. R.
2 Ch. 478, 481.
(c) It may be remarked here that the
rule that damage to be unlawful must be
substantial has been applied to acts done
in the enjoyment of a party's own land,
but interfering with the support, Smith
v. Thackerah, L. R. 1 C. P. 564; ante, 437,
n. 1, (b); Bonomi v. Backhouse, El., Bl.
& El. 622; 9 H. L. C. 503; Chasemore v.
Richards, 7 H. L. C. 349, 382, or the flow
of water in a stream, Elliot v. Fitchburg
R.R., 10 Cush. 191; ante, 440, n. 1, (a), or
the ancient lights (where, as in England,
they are allowed to be acquired), Beadel
v. Perry, L. R. 3 Eq. 465; Dent v. Auction
Mart Co., L. R. 2 Eq. 245; Kelk v. Pear-
son, L. R. 6 Ch. 809, and other similar
incidents of the land of another; as
distinguished from direct trespasses, or
infractions of rights exactly determined
by the words of a deed or covenant, which
are unlawful without proof of damage.
Northam v. Hurley, 1 El. & Bl. 665;
Western v. McDermott, L. R. 2 Ch. 72;
L. R. 1 Eq. 499; Jordan v. Mayo, 41 Me.
552; Brooks v. Reynolds, 106 Mass. 31.
See Chasemore v. Richards, 7 H. L. C.
349, 369. But there would probably be
a remedy, both at law and equity, for
acts sufficient to cause actual damage,
although the plaintiff was not using his
rights at the time. See 440, n. 1; Yates
v. Jack, L. R. 1 Ch. 295; Bickett v. Mor-
ris, L. R. 1 H. L. Sc. 47; 413, n. 1; Corning
v. Troy Iron & Nail Factory, 40 N. Y. 191.
But see Smyles v. Hastings, 22 N. Y. 217
Compare ii. 561, n. 1
[595]
• 448
[PART VI.
OF REAL PROPERTY.
escence of the owner; and that the presumption of right, under
these circumstances, is not an absolute bar, and conclusive, but it
may be explained and repelled, and is only a matter of evidence
for a jury to infer the right. (m)
3. (Air.) — The right to the enjoyment of free and pure air, as
incident to the estate, is likewise under the protection of the law
If, therefore, any thing offensive be erected so near the house of
another as to corrupt or pollute the air, it becomes a nuisance
and an action lies for the injury. On the other hand, if a tanyard
for instance, renders the air of the house and garden, subsequently
established, adjoining it, less pleasant and salubriòus, the nuisance
is remediless as to the person who voluntarily plants himself near
it. (n)
(9) Easements lost by Abandonment. — A right acquired by
use may, however, be lost by nonuser; and an absolute discon-
tinuance of the use for twenty years, affords a presumption of
the extinguishment of the right in favor of some other adverse
right. (0) As an enjoyment for twenty years is necessary to
found a presumption of a grant, the general rule is, that there
(m) The Court of Appeals in South Carolina, in the case of M'Cready v. Thom-
son, 1 Dudley Law & Eq. 131, held, that an action in the case lay for obstructing
the air and light of the plaintiff's windows, which he had the uninterrupted enjoy-
ment of as an easement by the prescriptive right of twenty years and upwards. It
is a reasonable right, contributing to the comfort and value of a person's habitation.
So the Court of Chancery will, by injunction, in a proper case, prevent the obstruc-
tion of light enjoyed for twenty years. Robeson v. Pittinger, 1 Green Ch. (N. J.) 57.
(n) 2 Bl. Comm. 402, 403; Com. Dig. tit. Action upon the Case for a Nuisance,
A. C.; Rex v. Cross, 2 Carr. & P. 483. See supra, p. 441, n. a, 442, n. d. See fur-
ther, as to nuisance disturbing the rightful enjoyment of easements, Sir Wm. Jones,
222; Doddridge, J., in Jones v. Powell, Palmer, 536; 2 Rol. Abr. Nusans, G. pl. 1, 8,
9; Bower v. Hill, 1 Bing. N. C. 549; Hall v. Swift, 6 Scott, 167; Gale & Whatley on
Easements, 395, 396. It is said by the Chancellor, in Catlin v. Valentine, 9 Paige,
575, that a slaughter-house in a city is prima facie a nuisance to the neighborhood,
and that it was not requisite to constitute a nuisance that the noxious business
should endanger the health of the neighborhood. It is sufficient if it be offensive to
the senses, and renders the enjoyment of life there uncomfortable.
The remedies for disturbance in the rightful enjoyment of an easement are: 1. By
act of the party; for the injured party may enter upon another's land and abate the
nuisance. 2. By action at law. 3. By suit in equity. See Gale & Whatley on Ease-
ments, part 4, c. 2.
Lib. 4; De Assisa Novæ
This last case contains a
(0) Prescott v. Phillips, decided in 1797, and reported in 2 Evans's Pothier, 136
Lawrence v. Obee, 3 Camp. 514. Bracton laid down the same principle, that incor
poreal rights acquired by use may be equally lost by disuse.
Disseisinæ, c. 38, sec. 3; Corning v. Gould, 16 Wend. 531.
full and learned view of the law on the subject.
[ 596 ]
LECT. LII.]
* 449
OF REAL PROPERTY.
must be a similar nonuser to raise the presumption of a release.
The mere nonuser of an easement, for twenty years, will afford a
presumption of a release or extinguishment, but not a very strong
one, in a case unaided by circumstances; but if there has been,
in the mean time, some act done by the owner of the land charged
with the easement, inconsistent with, or adverse to the existence
of the right, a release or extinguishment of the right will be pre-
sumed. (1) The doctrine of the civil law was, that a servitude
was presumed to have been released or renounced, when the
owner of the estate to which it was due permitted the owner of
the estate charged with it to erect such works on it, as a wall, for
instance, which naturally and necessarily hindered the exercise of
the right, and operated to annihilate it. The mere suffer-
ance of works to be erected, repugnant to the * enjoyment
of the servitude, would not raise the presumption of
release, unless the sufferance continued for a time requisite to
establish a prescription; or the works were of a permanent and
solid kind, such as edifices and walls, and presented an absolute
obstacle to every kind of enjoyment of the easement. There
must be a total cessation of the exercise of the right to the servi-
tude, during the entire time necessary to raise the presumption of
extinguishment, or there must have been some permanent obstacle
permitted to be raised against it, and which absolutely destroyed
its exercise. (a) If the act which prevents the servitude be
* 449
(1) See the reasoning of Sir William D. Evans, in Evans's Pothier, ii. 136. In the
case of Wright v. Freeman, 5 Harr. & J. 477, a presumption of extinguishment by
nonuser, of a right of way for twenty years, was held to be admissible, but it was
fortified in that case by acts of the party, and these acts were relied on by the court.
Mr. Justice Story, in Tyler v. Wilkinson, says, that the proprietors of Sergeant's
trench were entitled to so much, and no more of the water of the river, as had been
accustomed for twenty years to flow through their trench, to and from their mills,
whether actually used or necessary for the mills or not. See, also, White v. Craw-
ford, 10 Mass. 183. In Arnold v. Stevens, 24 Pick. 106, the court protected an ease-
ment so far against the presumption of abandonment, as to hold that the mere neglect
of the grantee for forty years to exercise the right to dig ore in the land of another,
would not extinguish the right, when there was no act of adverse enjoyment on the
part of the owner of the land. In 10 Pick. 310, Emerson v. Wiley, it was held, that
a right of way is not lost by nonuser for less than twenty years; and in Yeakle v.
Nace, 2 Wharton, 123, that twenty-one years' adverse occupation extinguishes it.
(a) Dig. 8. 6. 5; Voet, Com. ad Pand. lib. 8, tit. 6, secs. 5, 7; Toullier's Droit
Civil Français, iii. n. 673; Répertoire de Jurisprudence, par Merlin, tit. Servitude, c.
30, sec. 6, c. 33. Toullier says, that the article Servitude, in the Répertoire, is com-
posed with great care. Civil Code of Louisiana, art. 815, 816; Haight v. Proprietors
of the Morris Aqueduct, 4 Wash. 601. In Dyer v. Sanford, 9 Met. 395, some nice
[597]
* 449
[PART VI.
OF REAL PROPERTY.
incompatible with the nature or exercise of it, and be by the party
to whom the servitude is due, it is sufficient to extinguish it, and
if it be extinguished for a moment, it is gone forever. (b) ¹
1
Unity of possession of the estate to which an easement is
attached, and of the estate which the easement encumbers, is, in
effect, an extinguishment of the easement. But this does not
apply to a way of necessity; and though it be suspended by the
unity of possession, it revives by necessary implication, when the
questions respecting easements were discussed, and it was laid down that an ease-
ment could not be extinguished or renounced by a parol agreement between the
owner of the dominant and the servient tenement, but the owner of the dominant
tenement may make such changes in the use and condition of the estate as to amount
to an abandonment. So, an executed license may operate as an abandonment to the
extent of it. [Veghte v. Raritan Water P. Co., 4 C. E. Green (N. J.) 142; Morse v.
Copeland, 2 Gray, 302; post, 452, n. 1.]
(b) Taylor v. Hampdon, 4 M'Cord, 96. The statute of 2 and 3 William IV. c. 71
declared, that no claim to any way or other easement, or to any watercourse, or the
use of any water, should be defeated by showing the commencement of the right or
user at any time prior to twenty years' enjoyment; and after forty years the right
should be deemed absolute. So, a claim to the use of light, enjoyed for twenty years
without interruption, should be deemed absolute. Flight v. Thomas, 11 Ad. & El.
688. The better doctrine would seem to be, that the mere intermittance of the user
of an easement, unless accompanied by some evident intention to renounce the right,
does not amount to an abandonment. So, acts of interruption must be known and
acquiesced in to raise the presumption of having renounced the right. Gale & What
ley on Easements, 380–383.
1 Abandonment.—It has been held that
mere nonuser for twenty years of an ease
ment created by deed is not sufficient
proof of abandonment. Hall v. Mc-
Caughey, 51 Penn. St. 43; Bannon v.
Angier, 2 Allen, 128; Smyles v. Hastings,
22 N. Y. 217; 24 Barb. 44; Castle v.
Shipman, 35 N. Y. 533, 542; Jewett v.
Jewett, 16 Barb. 150; Owen v. Field, 102
Mass. 90, 114. And there seems to be
no sound distinction between easements
created by deed and those acquired by
prescription; Veghte v. Raritan Water P.
Co., 4 C. E. Green, 142; Ward v. Ward,
7 Exch. 838; Stokoe v. Singers, 8 El. &
Bl. 31; Lovell v. Smith, 3 C. B. N. s. 120;
Angell Waterc. 6 ed. § 252, n. 4; though
it is suggested in many of the first cited
cases; see 2 Wash. R. P. 56; Farrar v.
Cooper, 34 Me. 394. In one case of ease-
ment by prescription it is suggested that
during the nonuser of the right an intent
not to abandon it should be indicated.
Crossley v. Lightowler, L. R. 2 Ch. 478
482.
Other easements may be lost in less
than twenty years, in the way in which
it is said that ancient lights may be, text,
450. Reg. v. Chorley, 12 Q. B. 515;
Crossley v. Lightowler, L. R. 2 Ch. 478,
482; Raritan Water Power Co. v. Veghte,
6 C. E. Green (21 N. J. Eq.), 463, 480.
But it would seem that the abandonment
must have been acted upon. Stokoe v.
Singers, 8 El. & Bl. 31, 37. See Lovell
v. Smith, 3 C. B. N. s. 120, 127; Cook v.
Mayor, &c., of Bath, L. R. 6 Eq. 177;
D. sup. n. (a). See also D. 8. 2. 6, where
a distinction is mentioned between rustic
and urban servitudes; 452, n. 1.
[598]
LECT. LII.]
* 450
OF REAL PROPERTY.
possession is again severed. (c) Nor is a watercourse extin-
guished by unity of possession, and this from the necessity of the
case, and the nature of the subject. This was settled, after a very
elaborate discussion, in Shury v. Piggot, (d) and that case was
accurately examined and deliberately confirmed, in all its parts, in
Hazard v. Robinson. But the use of water, in a particular
way, by means of an * aqueduct, may be extinguished by *450
the unity of possession, and title of both the parcels of land
connected with the easements; and if the adverse enjoyment of
an easement be extinguished, within the period of prescription, by
the unity of title, and the land which possesses the easement be
shortly thereafter separated again from the land charged with the
easement, by a reconveyance, the right to be acquired by user
must commence de novo from the last period. (a) As to light
and air, the right to them is acquired by mere occupancy, and
will continue so long only as the party continues the enjoyment,
or shows an intention to continue it. A person may lose a right
to ancient lights by abandonment of them, within a less period.
than twenty years, if he indicates an intention, when he relin-
quishes the enjoyment of them, as by building a blank wall to
his house, never to resume it. (b) 1 It is the modern doctrine, that
the ceasing to enjoy such an easement, acquired by occupancy,
will destroy the right, provided the discontinuance be absolute
and decisive, and unaccompanied with any intention to resume
it within a reasonable time; and it is a wholesome and wise qual-
ification of the rule, considering the extensive and rapid improve-
ments that are everywhere making upon real property. (c)
(10) Easements by Dedication to the Public. - Dedications of
land for public purposes, as for charitable and religious uses, and
for public highways and village squares, enure as grants, and may
be valid, without any specific grantee in esse at the time, to
(c) 1 Saund. 323, note 6; Story, J., in Hazard v. Robinson, 3 Mason, 276.
(d) 3 Bulst. 339; Popham, 166.
(a) Manning v. Smith, 6 Conn. 289.
(b) Ibid.
(c) Moore v. Rawson, 3 B. & C. 332; Tindal, C. J., in Liggins v. Inge, 7 Bing. 693,
S. P. It was held, in Moore v. Rawson, that the right to ancient lights may be
devested under an implied abandonment, though it was doubted whether it would
have that effect on a right of way or common; and a distinction was taken by Little-
dale, J., between prescriptive rights to be enjoyed upon the property of the party
himself, and those to be exercised upon the land of another.
1 See 449, n. 1.
[599]
* 451
[PART VI.
OF REAL PROPERTY.
whom the fee could be conveyed. (d) And if a street be desig-
nated by public commissioners, duly authorized, as passing over
certain lands, and the owner subsequently conveys part of the
land lots, bounding them on such a street, this is held to be a
dedication of the land, over which the street passes, to the public
use, and on opening the street, the purchaser can only obtain a
nominal sum as a compensation for the fee. (e) But it has been
an unsettled question, what length of time was requisite to create
the presumption of a valid dedication of a highway to the public.
It seems to be agreed that some portion of time is necessary to
establish a presumptive dedication of it. Thus, in the case of
The Trustees of Rugby Charity v. Merryweather, before Lord
Kenyon, at the London sittings, (ƒ) eight years' free use of a way
to the public, with permission of the owner, was deemed quite
sufficient time for presuming a dereliction of the way to the public;
and Lord Kenyon referred to a case in which six years had
*451 been held sufficient. This decision *has been much ques-
tioned in subsequent cases. In Woodyear v. Hadden, (a)
the language of the court was, that time was a material ingredient
in the foundation of the presumption. In that case, nineteen
years' use of a street for a public highway was held not to be clear
and decisive, and therefore not sufficient evidence of a dedication
(d) Town of Pawlet v. Clark, 9 Cranch, 292; City of Cincinnati v. White, 6 Peters,
431; Brown v. Manning, 6 Ohio, 303; Watertown v. Cowen, 4 Paige, 510; Hobbs v.
Lowell, 19 Pick. 405. In this last case, the effect of the dedication of a highway to
the public was elaborately discussed, and it was held that a highway may be so
established by the owner of the soil with an assent on the part of the public. In
Gowen v. Phil. Ex. Co., 5 Watts & S. 142, Ch. J. Gibson traced this modern, and
which he termed anomalous doctrine of dedication to public use, or of a grant to the
public without the intervention of a trustee, up to the case of Rex v. Hudson, Str.
909, in the year 1732.
(e) In the Matter of Thirty-second Street, 19 Wend. 128; Matter of Thirty-ninth
Street, N. Y. 1 Hill, 191. In this last case it was held, that where a deed bounds the
grantee by a street designated on the commissioner's map, he dedicates the land in the
site of the street to the public use; and this is the conclusion whether the purchaser
be bound by the centre of the street, or the side of it. In the case of Pearsall v. Post,
20 Wend. 119-137, Mr. Justice Cowen learnedly and ably discussed the subject; and
he considered the doctrine to be rather novel and anomalous, that a grant, either in
religious or other cases, could be good, when there was no person in existence capable
of taking any thing under it. He held, also, that dedications of lands or easements to
the public, were to be confined to common highways, streets, and squares, and that
all other easements were founded on the presumption of a grant between competent
parties. This case was afterwards affirmed on error. 22 Wend. 425.
(a) 5 Taunt. 125.
(f) 11 East, 375, note.
[ 600 ]
LECT. LII.]
* 451
OF REAL PROPERTY.
of it to the public. Again, in Wood v. Veal, (b) it was adjudged,
that no dedication of a highway to the public by a tenant for
years, though it were for ninety-nine years, or by any other per-
son except the owner of the fee, would be binding upon such
owner; and it was intimated by Lord Tenterden, that during the
progress of the requisite time, the highway ought to have been
used as a thoroughfare. The true principle on the subject, to be
deduced from the authorities, I apprehend to be, that if there be
no other evidence of a grant or dedication, than the presumption
arising from the fact of acquiescence on the part of the owner, in
the free use and enjoyment of the way as a public road, the period
of twenty years, applicable to incorporeal rights, would be
required, as being the usual and analogous period of limitation.
But if there were clear, unequivocal, and decisive acts of the
owner, amounting to an explicit manifestation of his will to make
a permanent abandonment and dedication of the land, those acts
would be sufficient to establish the dedication, within any inter-
mediate period, and without any deed or other writing. (c)¹ In
(b) 5 B. & Ald. 454.
•
(c) See, further, Rex v. Lloyd, 1 Camp. 260; Lethbridge v. Winter, ib. 263, note
Rex v. Inhabitants of St. Benedict, 4 B. & Ald. 447; Jarvis v. Deane, 3 Bing. 447;
Woolard v. M'Cullough, 1 Ired. (N. C.) 432; City Council of Lafayette v. Holland, 18
La. 286; Hunter v. Trustees of Sandy Hill, 6 Hill (N. Y.), 407. See, also, supra, 428.
In Pritchard v. Atkinson, 4 N. H. 1, seventeen years were, in that case, deemed to be a
sufficient period. State v. Catlin, 3 Vt. 530, s. p. In the case of State v. Trask, 6
id. 355, it was held, that if land be laid out as a public common for the purpose
of a court-house, and the public acquire an interest in it as such, it is deemed a
dedication to the public use, and it cannot be reclaimed, though the use be discon-
1 Dedication. Dedication has been
often said to be a case of estoppel in pais.
(See 2 Gr. Ev. § 662 et seq.; 2 Wash. R.
P. 459; Holdane v. Cold Spring, 21 N. Y.
474, 479; Child v. Chappell, 5 Seld. 246;
Mankato v. Willard, 13 Minn. 13; Ford
v. Whitlock, 27 Vt. 265; and cases
below.) And in general to prove a
public highway there must be evidence
of an acceptance as well as of the ani-
mus dedicandi. Indeed, in most states
the acceptance of a highway not ancient
must be shown to have been with the
assent of the town liable to repair. Holmes
v. Jersey City, 1 Beasl. 299; State v.
Atherton, 16 N. H. 203, 210; Hyde v.
Jamaica, 27 Vt. 443, 454; Folsom v. Un-
derhill, 36 Vt. 580; Durgin v. Lowell, 3
Allen, 398; Morse v. Stocker, 1 Allen,
150; Rowland v. Bangs, 102 Mass. 299;
Tillman v. People, 12 Mich. 401; State
v. Bradbury, 40 Me. 154; Mayberry
v. Standish, 56 Me. 342; Jordan v.
Otis, 37 Barb. 50; Kelly's Case, 8 Gratt.
632. See Gentleman v. Soule, 32 Ill. 271;
Oswego v. Oswego Canal Co., 2 Seld.
257; Lee v. Sandy Hill, 40 N. Y. 442;
Manderschid v. Dubuque, 29 Iowa, 73
But it has been held that acceptance may
be shown from user by the public alone.
Guthrie v. New Haven, 31 Conn. 308,
Green v. Canaan, 29 Conn. 157; Stone v
[ 601. ]
* 451
[PART VI.
OF REAL PROPERTY.
Hatch v. Dwight, (d) it was declared upon the same principle,
that if a mill site, unoccupied, be abandoned by the owner, evi-
tinued. But see, contra, supra, 432, note. In the case of New Orleans v. The
United States, 10 Peters, 662, in which the doctrine of dedication of property to pub-
lic uses was largely and learnedly discussed, it was held not to be essential that the
right to use the property so dedicated, should be vested in a corporate body. It may
exist in the public, and have no other limitations than the wants of the community at
large. And if buildings be erected on, or grants be made of, part of the land so dedi
cated, by the party making it, such acts would not disprove the dedication, or affect the
vested rights of the public. I should apprehend that the last proposition must be taken
with some qualifications, for the fact might raise the question, as a matter of evidence
whether the property was ever legally vested in the public, or irrevocably dedicated
to it; and if it had been, whether nonuser by the public, and an adverse claim by the
original owner, might not, in the lapse of time, bar the public; for in this country time
may create a bar to the sovereign's right. Thus, by the New York Revised Stat-
utes, ii. 292, the people are not to sue or implead any person, in respect to lands, by
reason of any right or title, unless the right or title accrued within twenty years before
suit brought, or the people had received the rents and profits within twenty years, the
case of liberties of franchise excepted. There is a similar provision in the Revised
Statutes of Massachusetts, part 3, tit. 5, c. 119, sec. 12. It was held, in Willoughby
v. Jenks, 20 Wend. 96, that to give a title in the occupant of a lot, bounding on a street
dedicated to the public, to the soil, usque filum viæ, the street must have been accepted
by the public as such. Until such acceptance the street remains the property of thẹ
original proprietor, subject to the easement or right of way of purchasers of lots
adjoining the street.
There has been considerable discussion of the question, whether there may be a
partial dedication of a highway to the public, as for foot passengers, or for horses and
not for carts, or for carts except those carrying coal. The better opinion would seem
to be, that the public must take secundum formam doni, and that the dedication may
be definite, not only as to time, but as to the mode of use. Lethbridge v. Winter, 1
Camp. 263, note; Marquis of Stafford v. Coyney, 7 B. & C. 257; Gowen v. Phil. Ex.
Co., 5 Watts & S. 141; Poole v. Huskinson, 11 M. & W. 827.
(d) 17 Mass. 289.
Brooks, 35 Cal. 489; David v. New Or-
leans, 16 La. An. 404; Bissell v. N. Y. C.
R.R., 26 Barb. 630; Buchanan v. Curtis,
25 Wis. 99. See Rees v. Chicago, 38 Ill.
322; Wilder v. St. Paul, 12 Minn. 192;
Case v. Favier, ib. 89; Manderschid v.
Dubuque, 29 Iowa, 73. In England where
the assent of the parish is not necessary
(Rex v. Leake, 5 B. & Ad. 469) and in
the absence of statute there is no action
for injuries arising from the neglect to
repair, (Gibson v. Mayor of Preston, L.
R. 5 Q. B. 218, 222; M'Kinnon v. Penson,
8 Exch. 319, 321) open user as of right
for six years is prima facie evidence of
dedication. Queen v. Petrie, 4 El. & Bl.
737. See Larned v. Larned, 11 Met. 421.
So is user of seventy years, although the
land was under lease the whole time.
Winterbottom v. Lord Derby, L. R. 2 Ex.
316. But see Bermondsey v. Brown, L.
R. 1 Eq. 204. And undoubtedly a public
way may be established by prescription.
In such cases both dedication and accept-
ance may be presumed. Jennings v.
Tisbury, 5 Gray, 73; Durgin v. Lowell, 3
Allen, 398; State v. Atherton, 16 N. H. 203,
210; Stevens v. Nashua, 46 N. H. 192;
Gentleman v. Soule, 32 Ill. 271; Debolt
v. Carter, 31 Ind. 355; Cady v. Conger
[602]
LECT. LII.]
* 452
OF REAL PROPERTY.
dently with an intent to leave it unoccupied, it would be unrea-
sonable that the other riparian proprietors, above and below,
should be prevented, by fear of suits, from making a profit-
able use of their sites.
*
(11) Rights by License. The law is solicitous to pre-
* 452
vent all kinds of imposition and injury, from confidence reposed
in the acts of others; and a parol license to do an act, on one's
19 N. Y. 256; Irwin v. Dixion, 9 How. 10;
Onstott v. Murray, 22 Iowa, 457; Simons
v. Cornell, 1 R. I. 519; Att. Gen. v. M. &
E. R.R., 4 C. E. Green (19 N. J. Eq.),
386, 575; Wood v. Hurd, 5 Vroom (34 N.
J.), 87. Contra, Kelly's Case, 8 Gratt.
632, that an acceptance of record even of
an ancient road must be proved. See
Mayberry v. Standish, 56 Me. 342.
Another common method of dedication,
which is generally regulated by statute,
is for the owner of a town site to record
a plan of it, showing the highways, &c.,
in the proper office. After he has sold
lots with reference to it, it is said that
there is a dedication of the ways to the
public, which even the purchaser of the
land over which the way runs cannot
disturb. The rights of the purchaser
have been stated, ante, 432, n. 1, (c). Pres-
ton v. Navasota, 34 Texas, 684, and cases
below. R.R. Co. v. Schurmeir, 7 Wall.
272; Methodist Episcopal Church v.
Mayor of Hoboken, 4 C. E. Green (19
N. J. Eq.), 335. The statute often pro-
vides that the fee in such cases shall be
held by the municipal corporation for
the use of the public; but apart from
statute the fee does not pass. Banks v.
Ogden, 2 Wall. 57; Mankato v. Willard,
13 Minn. 13; Dovaston v. Payne, 2 Sm.
L. C. Am. note. It has been held that
for the public to acquire any rights there
must be an acceptance of the way in like
manner as if there had been no plan or
sale with reference to it. Lee v. Lake, 14
Mich. 12; Baker v. Johnston, 21 Mich.
319, 347. See Child v. Chappell, 5 Seld.
246, 256; Holdane v. Cold Spring, 21 N.
Y. 474, 479; Baker v. St. Paul, 8 Minn.
491. But see Logansport v. Dunn, 8 Ind.
378; Evansville v. Page, 23 Ind. 525, 527;
Yates v. Judd, 18 Wis. 118; (see Yates v.
Milwaukee, 10 Wall. 497, 506;) Alves v.
Henderson, 16 B. Mon. 131; Stone v.
Brooks, 35 Cal. 489; Trustees M. E.
Church v. Mayor, &c., of Hoboken, 4
Vroom (33 N. J.), 13; 4 C. E. Green (19
N. J. Eq.), 355; Wash. Easem. 145. The
question is very apt to depend on statute.
In this country dedications to other
public uses are recognized and sustained
without a grant, somewhat after the
analogy of charitable trusts. Baker v.
Johnston, 21 Mich. 319, 341. But there
can be no dedication to private uses, or to
a limited part of the public. Trustees of
M. E. Church v. Mayor, &c., of Hoboken,
33 N. J. 13; Todd v. Pittsburg, Ft. W., &
Chic. R.R., 19 Ohio St. 514, 524.
As an instance of partial dedication
it has been held that there may be a
dedication to the public of a right of way,
subject to the right of the owner of the
soil to plough it up in due course of hus-
bandry. Mercer v. Woodgate, L. R. 5 Q.
B. 26; Arnold v. Blaker, L. R. 6 Q. B. 433.
See Daniels v. Wilson, 27 Wis. 492.
Use of the land for other purposes
than those to which it was dedicated by
plan as described above may be restrained
at suit of the original proprietor; Warren
v. Lyons, 22 Iowa, 351; or of the owners.
of adjoining lots. Cook v. Burlington, 30
Iowa, 94, 101, (in which attention is called
to the fact that the plaintiff in the earlier
Iowa case was owner of adjacent lots ;)
Price v. Thompson, 48 Mo. 361. See
432, n. 1, as to the rights of owners of the
freehold subject to a way, and of the
public.
[603]
* 452
[PART VI.
OF REAL PROPERTY.
own land, affecting injuriously the air and light of a neighbor's
house, is held not to be revocable by such neighbor after it has
been once acted upon and expense incurred. (a) Such a license
is a direct encouragement to expend money, and it would be
against conscience to revoke it as soon as the expenditure begins
to be beneficial. The contract would be specifically enforced in
equity. Such a parol license to enjoy a beneficial privilege is not
an interest in land within the statute of frauds. If, however, a
parol license be granted for a temporary purpose, as the permis-
sion to erect a dam, it has been held to terminate with the decay
of the dam, as the purpose of the license has then been ful-
filled. (b) ¹ In Liggins v. Inge, (c) the court distinguished between
1
(a) Webb v. Paternoster, Palmer, 71; 2 Eq. Ca. Abr. 522; Short v. Taylor, cited
ib.; Winter v. Brockwell, 8 East, 308; Le Fevre v. Le Fevre, 4 Serg. & R. 241;
Rerick v. Kern, 14 id. 267; Bridges v. Blanchard, 3 Nev. & M. 691; Wood v. Manley,
11 Ad. & El. 34; Liggins v. Inge, 7 Bing. 682; Ameriscoggin Bridge v. Bragg, 11
N. H. 102. But in Crocker v. Cowper, in 1 Cromp., M. & R. 418, it was held, that
a verbal license was not sufficient to confer an easement in another's land, and that
it was revocable, though acted upon. It has also been decided that a license in
writing, without deed, to hunt on the grounds and fish in the waters of the grantor,
was void. Bird v. Higginson, 4 Nev. & M. 505. So, a license to erect a building on
another's land, cannot be revoked so entirely as to make the person who erected it a
trespasser for entering and removing it after the revocation. Barnes v. Barnes, 6
Vt. 388.
(b) Hepburn v. M'Dowell, 17 Serg. & R. 383; [Allen v. Fiske, 42 Vt. 462.] A
parol license to enjoy an easement is countermandable whilst it remains executory.
Wallis v. Harrison, 4 M. & W. 538.
(c) 7 Bing. 682.
1 Licenses. (a) An executed-license to
do acts of a permanent nature on the land
of the licensee, or of a third person, which
necessarily obstruct the enjoyment of an
easement of the licensor over such land
either wholly or in part, is irrevocable.
Curtis v. Noonan, 10 Allen, 406; Morse
v. Copeland, 2 Gray, 302; Veghte v.
Raritan W. P. Co., 4 C. E. Green, 142;
6 id. (21 N. J. Eq.) 463, 475; Jamieson v.
Millemann, 3 Duer, 255; Stokoe v.
Singers, 8 El. & Bl. 31; 449, n. (a); 450,
and n. 1. But where the act is done on
land of the licensor he is not estopped to
revoke at law. Curtis v. Noonan, Morse
v. Copeland, sup.; Fisher v. Moon, 11 L.
T. N. 8. 623, 625; Gale Easem. 43 and Pt.
•
3, ch. 2, § 2. Arrianus ait . . ubi de
obligando quæritur propensiores esse
debere nos si habemus occasionem ad
negandum; ubi de liberando ex diverso
ut facilior sis ad liberationem. D. 44. 7.
47. Probably in every case except the
above a mere license not coupled with an
interest is revocable at law. It is so
although for a valuable consideration and
acted upon. Morse v. Copeland, 2 Gray,
302; Adams v. Andrews, 15 Q. B. 284;
Collins Co. v. Marcy, 25 Conn. 239; Foot
v. N. H. & N. Co., 23 Conn. 214; Houston
v. Laffee, 46 N. H. 505; Marston v. Gale,
4 Fost. (24 N. H.) 176; Selden v. D. & H.
Canal, 29 N. Y. 634, 639; Foster v. Brown-
ing, 4 R. I. 47; Woodward v. Seely, 11 Ill
[604]
LECT. LII.]
* 452
OF REAL PROPERTY.
licenses which, when countermanded, leave the party in statu quo,
and licenses for the construction of buildings and works, which
are not revocable.
157; Burton v. Scherpf, 1 Allen, 133;
Jamieson v. Millemann, 3 Duer, 255; Duin-
neen v. Rich, 22 Wis. 550. See Fuhr v.
Dean, 26 Mo. 116, 126; Wolfe v. Frost, 4
Sandf. Ch. 72, 94. But in equity the doc-
trine of estoppel has been applied; Duke
of Devonshire v. Eglin, 14 Beav. 530;
Bankart v. Houghton, 27 Beav. 425;
Davies v. Marshall, 10 C. B. N. s. 697, 703;
see Veghte v. Raritan W. P. Co., 4 C. E.
Green, 142; 6 id. (21 N. J. Eq.) 463, 475; as
it has also been in states having no separate
equitable tribunal. Rerick v. Kern, 2
Am. L. C.; Lacy v. Arnett, 33 Penn. St.
169; Huff v. McCauley, 53 Penn. St. 206;
Snowden v. Wilas, 19 Ind. 10; Wilson v.
Chalfant, 15 Ohio, 248. See Jackson &
Sharp Co. v. Phil., Wil., & Balt. R.R., 11
Am. Law Reg. N. s. 374; Rynd v. Rynd
Farm Oil Co., 63 Penn. St. 397. But see
Owen v. Field, 12 Allen, 457. See, as to
See, as to
the peculiar case of dedication, 451, n. 1;
Ford v. Whitlock, ante, 419, n. 1, (b). Many
of the above were cases of parol licenses,
which, if under seal, might have amounted
to the grant of an easement; but a mere
license is revocable, though under seal.
13 M. & W. 845; Woodward v. Seely, 11
Ill. 157. But see Dark v. Johnston, 55
Penn. St. 164, 169. So, even in Pennsyl-
vania, is a license from a city exercising
the right of eminent domain. Branson v.
Philadelphia, 47 Penn. St. 329.
(b) License. Lease. Easement. -It is
often of importance to determine whether
an agreement is merely a license, or
whether it creates a lease or an easement,
as the case may be. A familiar example
of the distinction between a license and a
lease is that of furnished lodgings. The
lodger has the exclusive enjoyment of the
rooms; but the servants of the owner
have to keep the rooms in order, and the
occupation of the rooms is by the person
who thus employs servants to look after
them. If the agreement gives a right of
exclusive occupation, and the landlord
has nothing to do on the land, it is more
than a license. Another example is fur-
nished by the distinction between those
charter parties by which the master be-
comes the servant of the charterers, and
those in which he remains the servant of
the ship owners, ante, 138, 1. Roads v.
Overseers of Trumpington, L. R. 6 Q. B.
56, 62. Compare Smith v. St. Michael, 3
El. & El. 383, 390; Reg. v. Morrish, 32 L.
J. N. s. M. C. 245. See, generally, Kabley
v. Worcester Gas Light Co., 102 Mass.
392. So, if the occupation is by the land-
lord's servant, the relation of landlord
and tenant will not be created, People v.
Annis, 45 Barb. 304; and the same is
true of occupation under an executory
contract to purchase. Dolittle v. Eddy, 7
Barb. 74; Burnett v. Caldwell, 9 Wall.
290; post, iv. 113, n. 1.
The distinction between a license to
do something on the land of the licensor
and an easement is harder to draw. It is
said that a license is revocable and per-
sonal, while an easement is irrevocable
and an interest in land. But these are
legal consequences of a distinction in the
character of the limitations creating them.
An unsuccessful attempt to create an ease-
ment is often called a license, Coleman v.
Foster, 1 H. & N. 37, but it is believed that
in some cases the difference will be found
to be independent of the form of the
instrument, and to be somewhat one of
degree, between permissions to do acts of
which the number is either definite or
ascertainable by the requirements of a
particular occasion, such as removing a
certain chattel, on the one hand, and a per-
mission to do an unlimited number of acts
of a certain kind on the other. A permis-
sion to cross land from A. to B. once, or a
definite number of times, is a license, and
[605]
453
[PART VI.
OF REAL PROPERTY.
The modern cases distinguish between an easement and a
license. An easement is a liberty, privilege, or advantage in land
without profit, existing distinct from an ownership of the soil. (d)
A claim for an easement must be founded upon a grant by deed
or writing, or upon prescription, which supposes one, for it is a
permanent interest in another's land, with a right at all times to
enter and enjoy it. But a license is an authority to do a particu-
lar act, or series of acts, upon another's land, without possessing
any estate therein. It is founded in personal confidence, and is
not assignable, nor within the statute of frauds. (e) This distinc-
tion between a privilege or easement, carrying an interest in land,
and requiring a writing within the statute of frauds to support
it, and a license which may be by parol, is quite subtle,
* 453 and it * becomes difficult in some of the cases to discern a
substantial difference between them. The case of Wood v.
Lake, (a) which held a parol agreement for the liberty to stack
(d) Prentiss, Ch. J., Pomeroy v. Mills, 3 Vt. 279.
(e) [Wolfe v. Frost, 4 Sandf. Ch. 72;] Prince v. Case, 10 Conn. 375; Kerr v. Con-
nell, Berton (N. B.) 151; Woodbury v. Parshley, 7 N. H. 237; Mumford v. Whitney,
15 Wend. 380, s. P., where it was held, that such a license by parol was valid, but
that a parol agreement to allow a party to enter and erect a dam for a permanent
purpose was void within the statute of frauds, for it was a transfer of an interest in
the land. If we understand the license, said Ch. J. Savage, as it is defined here in
the text, there is no difficulty on the subject. It is a mere authority to do a particular
act, as to hunt, or fish, or erect a temporary dam, and conveys no interest, and the
license is executory, and may be revoked at pleasure; but acts done under it before
the revocation are no trespass.
A power reserved in a lease of revoking an easement is valid, and the revocation
affords no ground for a claim in damages to the lessee. Bacon's Maxims, Reg. 4;
Ex parte Miller, 2 Hill (N. Y.), 418.
not within the statute of frauds. A right of
way is a permission to cross it an indefinite
number of times, and is within the statute.
See Austin on Jurisp. lect. 49, 3d ed. ii.
838; Hooper v. Clark, L. R. 2 Q. B. 200;
Wickham v. Hawker, 7 M. & W. 63, 79.
If a license while in force may be ex-
clusive and may confer rights as against
third persons, and if it should be held irre-
vocable when under seal, the distinction
would still appear in the fact that unlike
an easement, an irrevocable license may
also be created by parol when coupled
with an interest in a chattel. An ease-
ment, however, is only a right to use or
(a) Sayer, 3.
control the servient estate in certain defi-
nite and limited ways. An indefinite and
unlimited right of user, granted in proper
form, would hardly be called an easement
even if it did not amount to a lease of the
land. Austin, 822, 853; Clayton v. Corby,
5 Q. B. 415, 422. See, generally, Dark v.
Johnston, 55 Penn. St. 164; Newby v. Har-
rison, 1 J. & H. 393; Carr v. Benson, L. R.
3 Ch. 524, 533, cases which use the word
license in a broader sense than above. In
the first case the instrument although
under seal was only an agreement for a
future conveyance.
[ 606 ]
LECT. LII.]
* 453
OF REAL PROPERTY.
coal upon any part of the close of another, for seven years, to be
valid, was questioned at the time by Mr. Justice Foster, and it
has been since forcibly attacked by Sir Edward B. Sugden, in his
Treatise of the Law of Vendors and Purchasers, (b) and was
questioned also in 1 Johnson's Ch. Rep. 143; and yet that case
has been recognized, and the doctrine of it sanctioned, by Lord
Ch. J. Gibbs, in Tayler v. Walters. (c) The decision in Cook v.
Stearns (d) narrows the limits assigned to a parol license, while,
on the other hand, the cases of Ricker v. Kelly and Clement v.
Durgin (e) seem to approach and favor the more questionable
doctrine in Wood v. Lake. (f)
b) P. 56, 3d London ed.
(d) 11 Mass. 533.
(c) 7 Taunt. 373.
(e) 1 Greenl. 117; 5 id. 9.
(ƒ) It was held, in Bridges v. Purcell, 1 Dev. & Batt. (N. C.) 492, that a parol
license to overflow one's land by a mill pond could be revoked, and at all events it
ceased with the life of the grantor. Mr. Justice Gaston, who gave the opinion of the
court, was disposed to question the doctrine on this subject, in the cases of Liggins v.
Inge, Webb v. Paternoster, and Tayler v. Walters; and he held, that the decision in
Wood v. Lake was clearly wrong. A mere parol license is revocable, though acts
done under it, until countermanded, are lawful. This was the amount of the reason-
ing in the case in North Carolina. Beidelman v. Foulk, 5 Watts, 308; Couch v.
Burke, 2 Hill (S. C.), 534, s. p. See, also, Hall v. Chaffee, 13 Vt. 150, to the s. P
The case of Tayler v. Walters is considered as decidedly overruled by the case of
Hewlins v. Shippam, 5 B. & C. 221, and Cocker v. Cowper, 1 Cromp., M. & R. 418.
See, also, Gale & Whatley's Treatise on Easements, 13-46, where all the authorities
on parol licenses are collected, and the effect of them well considered. But an inter-
est in land once passed cannot be revoked. Jackson v. Blanshan, 3 Johns. 292. In
the case of Wood v. Leadbitter, 13 M. & W. 838, this vexatious subject of license in
respect to land was greatly discussed, and the four cases of Webb v. Paternoster,
Wood v. Lake, Tayler v. Walters, and Wood v. Manley, were very critically ex-
amined in the judgment delivered by Baron Alderson. The case of Tayler v. Walters
was pointedly condemned, and the case of Webb v. Paternoster was so replete with
confusion as to be of no weight. The authority of all those cases is very much dis-
turbed. The conclusion at which the court arrived was, that a right to enter and
remain on the land of another for a certain term could be created only by deed, and
that a parol license to do so was revocable at any time. A right of common, or right
of way, or right in the nature of an easement, could only be granted by deed. A mere
license passes no interest, but a license coupled with an interest was not revocable.
On the subject of easements and aquatic rights, I have derived much aid and facility
in my researches, from the three valuable treatises of Mr. Angell, which treat of water-
courses, of tide waters, and of the rights acquired by adverse enjoyment for twenty years.
In those essays the author has faithfully collected the law and authorities applicable
to the subject, and accompanied his digest of them with free and judicious criticism.
The disturbance of incorporeal rights, relative to partition walls, foundations of build-
ings, the diversion of water, obstruction of lights, &c., amounting to nuisances, are
also well and fully discussed in Gibbons on the Law of Dilapidations and Nuisances,
c. 10. In the propositions of the English parliamentary commissioners on the subject
of real property, it was submitted, that adverse enjoyment during twenty years of
[ 607 ]
* 454
[PART VI.
OF REAL PROPERTY.
* 454
*3. Of Offices. - Offices are another species of incorpo-
real hereditaments, and they consist in a right, and corre-
spondent duty, to execute a public or private trust, and to take
the emoluments belonging to it. (a) Offices, in England, may be
granted to a man in fee, or for life, as well as for years, and at
will. (b) In the United States, no public office can properly be
termed an hereditament, or a thing capable of being inherited.
The constitution, or the law, of the state, provides for the extent
of the duration of the office, which is never more permanent than
during good behavior. (c) Private ministerial offices only can be
classed as hereditaments, and I do not know of any such subsist-
ing among us. It would not be consistent with our manners and
usages, to grant a private trust or employment to one, and his
heirs, in fee; though I do not know of any positive objection to
such a contract in point of law. But in the revision of the
statute law of New York, in 1787, most of the provisions in the
ancient English statutes relative to office were reënacted. It was
any profit or easement, in or over the soil of another, should be prima facie evidencə
of a right, but one liable to be rebutted by proof that the owner had been under disa-
bility, or that the land had been under a lease, or that there was a life interest therein;
but such proof was not to be open to the lessee or tenant for life. The adverse enjoy-
ment for sixty years was to be conclusive evidence of a right, without regard to the
disabilities of the parties, or the state of the title to the land. The nonuser of any
profit or easement in or over the soil of another during twenty years, was to be prima
facie evidence of its extinguishment, but liable to be rebutted. I should have appre-
hended that all those propositions, except the sixty years' provision, were already
part of the English law, and that it was useless to have proposed them.
(a) Finch's Law, 162. The right to exercise a public office is as much a species
of property as any other thing capable of possession, and the law affords adequate
redress when the possession of it is wrongfully withheld. Wammack v. Holloway, 2
Ala. 31.
(b) 2 Bl. Comm. 36.
(c) In Hoke v. Henderson, 4 Dev. (N. C.) 18, 19, it was decided that a clerk's office,
which was held during good behavior, and many other public offices, were, under cer-
tain limitations, the subject of property, like every other thing, corporeal or incorporeal,
from which men can earn a livelihood. And if another should unlawfully usurp the
office, the owner might have an action for damages for the expulsion, and a mandamus
to restore him to the possession and emoluments of the office. [See United States v.
Addison, 6 Wall. 294.] In the able and elaborate opinion delivered by Judge Nicoll,
in the case of The State v. Dews, R. M. Charlton, 397, it was held, that public officers
in this country were public agents or trustees, and had no proprietary interest or
private property in their offices beyond the constitutional tenure and salary (if any)
prescribed; and that official rights and powers flowing from their offices might be
changed at the discretion of the legislature, during their continuance in office. The
custody of a jail, for instance, it was held, might, without the violation of any con-
stitutional right, be taken by statute from the sheriff, and vested in the city corpo-
ration.
[ 608]
LECT. LII.]
* 455
OF REAL PROPERTY.
1
*
provided, among other things, (d) ¹ that if a man be unduly dis-
turbed in his office, a writ of novel disseisin should be maintained
for offices in fee, and for life, as well as for lands and tenements.
This regulation was taken from the statute of Westminster 2d,
13 Edw. I., and it was probably a very useless provision, and it
has been omitted in the last revision of the laws of New York,
which went into operation in January, 1830. But we have (and
very properly) reënacted (e) the substance of the statute of 5 and
6 Edw. VI. c. 15, against buying and selling offices, and it
prohibits the sale of any office, or the deputation of any *455
office, or taking any fee or reward therefor. The offence
is made a misdemeanor, and it is likewise punished with the loss
of the office; but it does not apply to the case of a deputy agree-
ing to pay his principal part of the profits of an office, and to be
allowed to reserve another part to himself as a compensation for
his services. (a) The object of the statute was to prevent cor-
ruption in office, and it alludes only to corrupt bargains and sales
of offices, and not to the fair and necessary appointments of dep-
uties with a reasonable allowance, though on this point there have
been some refined distinctions established.
If an officer has a certain salary, or certain annual profits, a
deputation of his office, reserving a sum not exceeding the amount
of his profits, has been held not to be contrary to the statute,
(d) Laws of New York, sess. 10, c. 50, sec. 7.
(e) New York Revised Statutes, ii. 696, secs. 35, 36, 37. The legislature of Virginia,
in 1792, reënacted the statute of 5 and 6 Edw. VI.; Revised Code of Virginia, ed.
1814, i. p. 79.
(a) Gulliford v. De Cardonell, 2 Salk. 466. The English statute of 5 and 6 Edw.
VI. has been extended by the acts of 49 Geo. III. and 6 Geo. IV., which declare
that no public office (a few only excepted) shall be sold, under pain of disability to
dispose of or hold it. So it was held, in Hill v. Paul, 8 Cl. & F. 295, that the profits
of a public office could not be assigned for the benefit of creditors.
1 Offices. There is no contract be-
tween the government and the officer to
permit him to perform the duties, and to
receive a certain compensation. Ante, i.
419, n. 1. The right to fees arises only
from the actual rendition of the services.
Smith v. Mayor of N. Y., 37 N. Y. 518.
See Conner v. Mayor of N. Y., 1 Seld. 285;
Warner v. People, 2 Denio, 272; Swann
v. Buck, 40 Miss. 268, 302, and cases cited;
Coffin v. State, 7 Ind. 157; Benford v.
VOL. III.
39
Gibson, 15 Ala. 521; Barker v. Pitts-
burgh, 4 (Barr) Penn. St. 49.
An agreement by an applicant for an
office to divide the fees with another ap-
plicant if he will withdraw and aid the
former to obtain it is void. Gray v.
Hook, 4 Comst. 449, cited in Tool Co. v.
Norris, 2 Wall. 45; and in Lyon v. Mitch-
ell, 36 N. Y. 235. See Liness v. Hesing,
44 Ill. 113.
[609]
• 456
[PART VI
OF REAL PROPERTY.
because the principal is entitled to the fees and perquisites of the
office, and the deputy to a recompense for his labor in the execu-
tion of it. So, if the profits be uncertain, the deputy may lawfully
agree to pay so much out of the profits, for in that case he cannot
be charged for more than he receives. But if the office consists
of uncertain fees and profits, and the deputy agrees to pay a
certain sum annually, without restricting the payment to the
proceeds of the profits, it would be a sale within the statute; and
the case is not altered by the office yielding more in contingent
profits than the amount of the money stipulated to be paid. (b)
It would also be a contract within the purview of the statute
for the deputy to secure all the profits to the person appointing
him, for this would infallibly lead to extortion in the
* 456 deputy. (c) *The statute in New York would seem to
be broader than the English statute of 5 and 6 Edw.
VI., for it has omitted the explanatory and restrictive words in
that statute, applying it to "office or offices, or any part or parcel
of them that shall in any wise touch or concern the administration
or execution of justice;" and the preamble shows, that it was
intended to apply to "places where justice is to be administered,
or any service of trust executed." In England, the place of
under-marshal of London is a service of public trust, and yet it
has been held to be salable, because it only concerned the police
(b) Godolphin v. Tudor, 2 Salk. 468; s. c. Willes, 575, note; Garforth v. Feron, 1
H. Bl. 328; Noel v. Fisher, 3 Call, 215; Becker v. Ten Eyck, 6 Paige, 68; Mott v.
Robbins, 1 Hill (N. Y.), 21. In Tappan v. Brown, 9 Wend. 175, it was decided, that
if a person receiving a deputation to a public office, which entitles him by law to a cer-
tain percentage upon the fees and emoluments of his principal, agrees to perform the
duties at a fixed salary, the agreement is in violation of the act against buying and
selling offices, and is void; although it be not certain that the stipulated sum would
be less than the percentage allowed by law.
(c) Layng v. Paine, Willes, 571; Becker v. Ten Eyck, 6 Paige, 68. If the deputy
of a public officer be entitled by law to certain fees and perquisites as deputy, and he
agrees to give the officer appointing a portion of such fees or perquisites, it is a pur-
chase of the deputation, and void under the statute. Ib. The statute of 5 and 6
Edw. VI. has been reënacted in Virginia, with the addition of a proviso, that the
act was not to prohibit the appointment and acting of any deputy clerk, or deputy
sheriff, who shall be employed to assist their principals in the execution of their
respective offices. Prima facie this proviso would seem to have been unnecessary;
but it has been decided under it, that where a sheriff farmed his shrievalty to G.,
whom he appointed his deputy for a sum in gross, to be paid him by G., who was to
discharge all the duties, and take all the emoluments of the office, the contract was
lawful! Salling v. M'Kinney, 1 Leigh, 42. Upon this construction the proviso rises
into great importance.
[ 610 ]
LECT. LII.]
* 457
OF REAL PROPERTY.
of the city. (a) If, however, the statute of New York should not
admit of a more comprehensive construction than the one from
which it was taken, yet the principles of the common law supply
all deficiencies; and many agreements for the sale of offices that
are not within the statute of Edw. VI. have been held void, as
being against public policy. The sale of any office in which the
public are concerned is held to be against principles of public
policy, and an offence at common law. If A. should agree to allow
B. a certain proportion of the profits of an office in the king's
dockyards, in case the latter retired, and he succeeded to the
appointment, the agreement would be void, as not supported by
a valid consideration. (b)
The provisions and rules of the ancient common law were
remarkably provident in respect to the public interest; and
*an office of trust, that concerned the administration of *457
justice, could not be granted in reversion, or for a term of
years, for the grantee might become incompetent, or it might vest
in executors and administrators, if the officer should die within
the term; and it would be impossible that the law should know
beforehand, whether the representatives would be competent to
discharge the trust. This was so ruled by Lord Coke and others,
in Sir George Reynel's Case, respecting the office of marshal of
the Marshalsea. (a) Sir Henry Finch, in his Discourse, (b) held
that the grant of an office to an ignorant man, who had no skill
at all, was utterly void; as if the king, by his letters patent,
made a clerk of the crown in the K. B., who had no experience
in office, and was utterly insufficient to serve the king and
people.
The general rule is, that judicial offices must be exercised in
person, and that a judge cannot delegate his authority to another.
I do not know of any exception to this rule with us, though in
England there are several. (c) What is a judicial, and what is a
(a) Lord Hardwicke, in Butler v. Richardson, 1 Atk. 210; Amb. 73.
(b) Parsons v. Thompson, 1 H. Bl. 322; Blachford v. Preston, 8 T. R. 89; Best
Ch. J., in Richardson v. Mellish, 9 Moore, 435.
(a) 9 Co. 95. In Hoke v. Henderson, 4 Dev. (N. C.) 23, it was declared, that the
legislature could lawfully confer a clerk's office for life, or during good behavior, or
during pleasure, or for any term of years determinable with life at an earlier day
This could only apply to cases in which the constitution had not prescribed the
tenure.
(b) Page 162.
(c) 4 Inst 291; Molins v. Werby, 1 Lev. 76.
[611]
* 458
[PART VI.
OF REAL PROPERTY.
ministerial function, has been sometimes a matter of dispute. In
Medhurst v. Waite, (d) Lord Mansfield said it was taking the
definition too large, to say that every act, where the judgment
was at all exercised, was a judicial act, and that a judicial act
related to a matter in litigation. But a ministerial office may
be exercised by a deputy, though a deputy cannot make a deputy,
according to the maxim delegata potestas non potest delegari. The
distinction between a deputy and an assignee of an office, as stated
by Lord Coke, in The Earl of Shrewsbury's Case, (e) will serve to
explain the application of the statute against buying and selling
offices to assignees and not to deputies. An assignee of an
* 458 office, he says, is a person who has an estate * or interest in
the office itself, and doth all things in his own name, and
for whom his grantor shall not answer. But a deputy hath not
an estate or interest in the office. He is but the officer's
shadow, and doth all things in the name of the officer himself,
and nothing in his own name, and his grantor shall answer for
him. (a)
4. Of Franchises. Another class of incorporeal hereditaments
are franchises, being certain privileges conferred by grant from
government, and vested in individuals. In England they are
very numerous, and are understood to be royal privileges in the
hands of a subject. (b) They contain an implied covenant on
the part of the government not to invade the rights vested, and
on the part of the grantees to execute the conditions and duties.
prescribed in the grant. Some of these franchises are presumed
to be founded on a valuable consideration, and to involve public
duties, and to be made for the public accommodation, and to be
(d) 3 Burr. 1259.
(e) 9 Co. 42.
(a) As the ancient statute of 5 and 6 Edward VI., against the sale of offices, has
been revived and reënacted in New York, it might have been as well to have also
reënacted the statute of 12 Richard II. (A. D. 1388), entitled an Act that none shall
obtain offices by suit, or for reward, but upon desert. They all seem to have constituted
parts of one ancient system, and to have been dictated by the same provident and
generous spirit. It declared, that the appointing power who should "ordain, name,
or make justices of the peace, sheriffs, customers, comptrollers, or any other officer
or minister of the king, should be firmly sworn not to ordain, name, or make any,
for any gift or brocage, favor or affection; and that none which pursueth by him, or by
other privily or openly, to be in any manner of office, shall be put in the same office, or in any
other." This statute, said Lord Coke (Co. Litt. 234, a), was worthy to be written in
letters of gold, but more worthy to be put in due execution.
(b) 2 Bl. Comm. 37; Finch's Law, 164
[ 612 ]
LECT. LII.]
* 459
OF REAL PROPERTY.
1
affected with a jus publicum, and they are necessarily exclusive
in their nature. The government cannot resume them at pleasure,
or do any act to impair the grant, without a breach of contract.
The privilege of making a road, or establishing a ferry, and taking
tolls for the use of the same, is a franchise, and the public have
an interest in the same; and the owners of the franchise are liable
to answer in damages, if they should refuse to transport an indi-
vidual without any reasonable excuse, upon being paid or tendered
the usual rate or fare. (c) ¹ The obligation between the govern-
ment and the owner of such franchises is mutual. He is obliged
to provide and maintain facilities for accommodating the public,
at all times, with prompt and convenient passage. The law, on
the other hand, in consideration of this duty, provides him a
recompense, by means of an exclusive toll, to be exacted from
persons who use the road or ferry, and, of course, it will protect
him against any new establishment which is calculated to draw
away his custom to his prejudice. An estate in such a fran-
chise, and an estate in land, rest upon the same * principle, *459
being equally grants of a right or privilege for an adequate
consideration. If the creation of the franchise be not declared
to be exclusive, yet it is necessarily implied in the grant, as in
the case of the grant of a ferry, bridge, or turnpike, or railroad,
that the government will not, either directly or indirectly, interfere
with it, so as to destroy or materially impair its value. Every
such interference, whether it be by the creation of a rival franchise
or otherwise, would be in violation or in fraud of the grant.
All grants or franchises ought to be so construed as to give them
due effect, by excluding all contiguous competition, which would
(c) Beekman v. Saratoga and Schenectady Railroad Company, 3 Paige, 45; Paine
v. Patrick, 3 Mod. 289, 294; Story, J., in Charles River Bridge v. Warren Bridge, 11
Peters, 639.
1 At common law a carrier could not
charge more than was reasonable, but he
could carry at an unreasonably low rate
for favored individuals. Baxendale v.
E. C. R. Co., 4 C. B. N. s. 63, 83;
Great Western R. Co. v. Sutton, L. R. 4
H. L. 226, 237; Fitchburg R.R. v. Gage,
12 Gray, 393. In this country it has
been held that a railroad, being a public
use, as shown by the exercise of eminent
domain in its favor, cannot arbitrarily
exclude persons from its benefits. 3 Paige,
75; Sanford v. Catawissa R.R., 24 Penn.
St. 378; Twells v. R.R., 3 Am. Law Reg
N. 8. 728; Shipper v. Pa. R.R., 47 Penn. St
338. See Lumbard v. Stearns, 4 Cush
60; Gaslight Co. v. Colliday, 25 Md. 1
16; Shepard v. Milwaukee Gaslight Co
6 Wis. 539; 15 id. 318.
[ 613 ]
* 459
[PART VI.
OF REAL PROPERTY.
be injurious, and operate fraudulently upon the grant. The com-
mon law contained principles applicable to this subject, dictated
by sound judgment and enlightened morality. It declared all such
invasions of franchises to be nuisances, and the party aggrieved
had his remedy at law by an action on the case for the disturbance,
and in modern practice he usually resorts to chancery, to stay the
injurious interference by injunction. (a) ¹ We have nothing to do
1
(a) 22 Hen. VI. 14, b. Paston, J.; Bro. action sur le case, pl. 57, tit. Nuisance, pl.
12; 2 Rol. Abr. 140, pl. 20, 140, pl. 1, 2, 3, 191; F. N. B. 184; Yard v. Ford, 2 Saund
172; 2 Bl. Comm. 37; 3 id. 218, 219; Tripp v. Frank, 4 T. R. 666. Lord Holt, in the
case of Keeble and Hickeringall, Holt, 20; Newburgh Turnpike Company v. Miller,
5 Johns. Ch. 111; 4 id. 160, s. p. Dartmouth College v. Woodward, 4 Wheaton, 518;
Huzzy v. Field, 2 Cr., M. & R. 432. It has been usual in the grant of a franchise
to exclude in express terms all interference within specified distances. This practice
has become highly expedient, considering the doctrine established in the cases referred
to in a subsequent part of this note. By a general act in Illinois (Revised Laws of
Illinois, 1833), a ferry or toll bridge privilege, created by statute, excludes all other
establishments of the kind within three miles of the same. So, the act of Georgia, of
21st of December, 1835, creating the Chattahoochee Railroad Company, excludes for
twenty-five years all other railroads running parallel thereto within twenty miles.
This is in affirmance of the common law rule, and it is the wisest course, for it pre-
vents all uncertainty and dispute as to what are reasonable distances in the given case,
and what would amount to an unlawful interference. In Dyer v. Tuscaloosa Bridge
Company, 2 Porter (Ala.) 296, it was held, after an elaborate discussion, that the erec-
tion of a toll bridge under legislative grant, within a short distance of a ferry pre-
viously held under a county court license, so as to prove a great injury to it, was not
an unconstitutional act, nor an exclusive grant of a ferry, and that the license was
taken subject to the paramount discretion of the legislature. Other ferries may be
established alongside of ferries opposite to towns, in the discretion of the court, and in
like manner bridges may be established alongside of ferries. The statute law of
Alabama only provided that no ferry should be established within two miles of another
ferry already established. The exception to the exclusive privilege is, when the ferry
is situate at or near the town, when one ferry might not be sufficient. Jones v.
Johnson, 2 Ala. 746. So, one toll bridge cannot be established within three
miles of another toll bridge. The case above cited was deemed to be warranted by
statutory construction, otherwise it would seem to be hardly consonant with general
principles.
But the case of Charles River Bridge v. Warren Bridge (11 Peters, 420), is of more
momentous import, and contains and establishes a doctrine subversive of that in the
text, and which goes very far to destroy the security and value of legislative franchises.
The court declared, by Mr. Chief Justice Taney, that public grants were to be con-
strued strictly, and that nothing passed as against the state by implication, in diminu-
tion of the legislative powers requisite to accomplish the end of their creation. It was
1 Raritan & D. B. R.R. v. Delaware
& R. Canal, 3 C. E. Green, 546, 1 C.
E. Green, 321. See Auburn & C. Plank
R. v. Douglass, 5 Seld. 444, cited and
remarked upon, 3 C. E. Green, 571; Fort
Plain Bridge Co. v. Smith, 30 N. Y. 44.
See also Ferrel v. Woodward, 20 W`s.
458.
[614]
LECT. LII.]
* 460
OF REAL PROPERTY.
with a great proportion of the franchises that occupy a large
space in the treatises on English law; and whoever claims an
exclusive privilege with us, must show a grant from the legisla-
ture. Corporations, or bodies politic, are the most usual franchises
known in our law; and they have been sufficiently considered in
a former volume. These incorporated franchises seem, indeed,
with some impropriety, to be classed by writers among heredita-
ments, since they have no inheritable quality, inasmuch as a
corporation, in cases where there is no express limitation to its
continuance by the charter, is supposed never to die, but to be
clothed with a kind of legal immortality. (b) Special privileges,
conferred upon towns and individuals in a variety of ways, and
for numerous purposes, having a connection with the public
interest, are franchises.
* 5. Of Annuities. —An annuity, says Lord Coke, (a) is * 460
a yearly sum stipulated to be paid to another, in fee, or for
life, or years, and chargeable only on the person of the grantor.
If it be agreed to be paid to the annuitant and his heirs, it is a
personal fee, and transmissible by descent like an estate in fee,
accordingly decided, that the grant by statute to the Charles River Bridge Company
of the right founded on a valuable consideration, to build a bridge over that river, and
to take toll, contained no engagement from the State of Massachusetts, nor any implied
contract, that the privilege to erect another bridge contiguous thereto, and on the same
line of travel, and which might create competition, and diminish or destroy its income,
should not be granted within the period of the operation of the grant;. that as no
grant of any such exclusive privilege, or any contract of the kind was expressed, none
was to be intended or inferred. There was no constructive franchise or privilege
admitted, and the decision rested on legislative sovereignty and its all surpassing
powers. Mr. Justice Story dissented from this extraordinary doctrine and decision,
and with his customary learning and ability. The same latitudinary doctrine was
declared, after a very elaborate discussion, in the case of Tuckahoe Canal Co. v.
Tuckahoe Railroad Co. in the Court of Appeals in Virginia, 11 Leigh, 42. As there
was no express provision in the charter against the exercise of legislative power to
charter other and rival companies for transportation along the same line, parallel and
contiguous, it was held, that the legislature might lawfully, and in their discretion,
exercise the power, though it might in effect impair or annihilate the profits of the
prior company. This, I apprehend, may now be considered as a prevalent principle
in American constitutional law, and, in my humble opinion, it is deeply to be regretted.
[Ante, i. 419, n. 1.]
(b) They are, nevertheless, deemed incorporeal hereditaments; and shares in a
railroad incorporated company have, in Kentucky, been adjudged to be real estate,
which descends as realty, and of which a widow might be endowed. Price v. Price,
6 Dana, 107.
(a) Co. Litt. 144, b.
[ 615 ]
• 460
[PART VI.
OF REAL PROPERTY.
1
and forfeitable for treason as an hereditament, (b) and for that
reason it belongs to the class of incorporeal hereditaments. (c)
It is chargeable upon the person of the grantor, for if the annuity
was made chargeable upon land, it would then become a rent
charge, and descend to the heirs as real property. (d)¹ The
remedy for a failure in the payment of the annuity was anciently
by the original writ of annuity, but now the remedy is by a personal
action of debt or covenant on the instrument by which the annuity
is created. Unless the grantor grants the annuity for himself
and his heirs, the heirs of the grantor are not bound, for the law
presumes, by the omission to name them, that he did not intend
to include them in the obligation. (e)
6. Of Rents. Rents are the last species of these incorporeal
hereditaments, and they form a very important and interesting
title under this branch of the law.
(1) of the Various Kinds of Rents. Rent is a certain yearly
profit in money, provisions, chattels, or labor, issuing out of lands
and tenements, in retribution for the use, and it cannot issue out
of a mere privilege or easement. (f) There were, at common law,
according to Littleton, (g) three kinds of rent, viz., rent service,
(b) Co. Litt. 2, a; Nevil's Case, 7 Co. 34, b.
(c) An annuity in fee is personal estate sub modo. It has none of the incidents and
characteristics of real estate, except that of descending to the heir, and not forming
assets in the hands of the executor. The husband is not entitled to his curtesy, nor
the wife to her dower, in an annuity. It cannot be conveyed by way of use, and it
is not within the statute of frauds, and may be bequeathed and assigned as personal
estate. Stafford v. Buckley, 2 Ves. 170; Aubin v. Daly, 4 B. & Ald. 59.
The per-
sonal nature of an annuity is discussed with learning and ability in the article entitled
Personal Hereditaments," in the American Law Magazine, for October, 1843.
(d) Co. Litt. 144, b.
(e) Ib. Mr. Ellis, in a recent treatise, entitled "The Law of Fire and Life Insur
ance and Annuities," has collected and arranged all the law on the subject of annuities
for lives. An annuity, as well as a judgment, is presumed to be satisfied after twenty
years, if nothing has been done under it.
(ƒ) 2 Bl. Comm. 41; Gilbert on Rents, 9; Co. Litt. 142, a; Buszard v. Capel, 8
B. & C. 141.
(g) Sec. 213.
1 Sollory v. Leaver, L. R. 9 Eq. 22.
But an annuity charged on the real and
personal estate of a testator which was
expressed to be left to A. B. "forever,"
without mention of heirs, was held to pass
to the personal representative of A. B.
<<
Taylor v. Martindale, 12 Sim. 158. So,
when annuities charged in like manner
were left to the testator's children, or
their heirs," the next of kin of a deceased
child took. Parsons v. Parsons, L. R. 8
Eq. 260.
[ 616 ]
LECT. LII.]
461
OF REAL PROPERTY.
rent charge, and rent seck. Rent service was where the
tenant held his land by * fealty, or other corporeal service, * 461
and a certain rent; and it was called rent service, because
there was some corporeal service incident to the tenancy, as
fealty, homage, or other service. A right of distress was insep-
arably incident to this rent. (a) Rent charge, or fee-farm rent, is
where the rent is created by deed, and the fee granted; and as
there is no fealty annexed to such a grant of the whole estate,
the rent charge was not favored at common law. The right of
distress is not an incident, and it requires an express power of
distress to be annexed to the grant, which gives it the name of a
rent charge, because the lands are, by the deed, charged with a
distress. (b) Rent seck, siccus, or barren rent, was rent reserved
by deed, without any clause of distress, and in a case in which
the owner of the rent had no future interest or reversion in the
land. The owner of the rent was accordingly driven to the slow
and tedious remedy by a writ of annuity, or a writ of assize. (c) ¹
Kenege v. Elliot, 9 Watts, 258.
1
(a) Litt. s. 215; Co. Litt. 142, a;
(b) Litt. s. 217; Co. Litt. 143, b; Gilbert on Rents, 155. In the case of Ingersoll
v. Sergeant, 1 Wharton, 337, the law on this head is learnedly reviewed and discussed
by Mr. Justice Kennedy; and it is declared, that the statute of Quia Emptores (18 Edw.
I.) was never in force in Pennsylvania, and that a rent reserved to grantor and his
heirs, in the grant of lands in fee, is a rent service and not a rent charge. The release
of part of the ground from the rent does not therefore extinguish the whole, and the
remainder of the land remains subject to a due proportion of the rent.
(c) Litt. s. 213, 217, 218, 235, 236; Co. Litt. 150, b, 160, a; Gilbert on Distresses, 6.
1 Rent. (a) From what Rent issues.
It has been said that a rent may issue out
of lands and their furniture, such as live
stock, &c.; and it has been held that a right
of distress may be incident to a rent pur-
porting to issue out of both; Mickle ".
Miles, 31 Penn. St. 20; and that such a
rent may be apportioned. Newton v.
Wilson, 3 Hen. & M. 470. But see Sutliff
v. Atwood, 15 Ohio St. 186; Fay v. Hol-
loran, 35 Barb. 295. It would seem that
the Pennsylvania case might have been
put on the 3d resolution of Spencer's Case,
5 Rep. 16, that "the rent did not issue out
of the stock or sum, but out of the land
only."
(b) Rents Service and Rents Charge.
Although a rent reserved to the grantor
and his heirs upon a conveyance of lands
in fee is held to be a rent service in Penn-
sylvania, it has been held in an interesting
case that ownership of land in that state
is allodial. A party who had conveyed
land in fee, reserving a ground rent, after-
wards obtained the deeds and fraudulently
altered them, whereupon the purchaser
refused to pay the rent any longer. It
having been held that the remedies for
the rent on the deed were gone (Arrison
v. Harmstad, 2 Barr, 191; Wallace v. Harm-
stad, 15 Penn. St. 462), the grantor dis-
trained, and took the ground that the rent
was an estate which vested in him before
the alteration, and was not devested by
that, and that it was a rent service to
which distress was incident as of common
[ 617 ]
* 462
[PART VI.
OF REAL PROPERTY.
But the statute of 4 Geo. II. c. 28, abolished all distinction between
the several kinds of rent, so far as to give the same remedy by
distress in cases of rents seck, rents of assize, and chief rents, as
in the case of rent reserved upon a lease. The statute of New
York (d) has not adopted that provision in so many words, but
it gives the remedy by distress in all cases where any certain
services, or certain rents reserved out of lands or tenements,
remain due. The remedy is extended equally to the grantees
and assignees of the lessor, and to the heirs, executors, and
administrators of the party entitled. (e)
There is, therefore, the same universal remedy by action and by
distress, for every species of rent or service lawfully due,
*462 when the same is certain. (f) The tenancy that will
*
(d) New York Revised Statutes, i. 747, sec. 18, 20, 21, 22.
(e) The relations of landlord and tenant have been very materially altered in the
state of New York since the last edition of this work. In the new (perhaps the better
expression would be the newest) constitution of New York, which took effect on the
first of January, 1847, it was provided, that "no lease or grant of agricultural land for
a longer period than twelve years, thereafter made, in which should be reserved any
rent or service of any kind, should be valid." (Const. art. 1, sec. 14.) By a law of
the New York legislature, passed May 13th, 1846, distress for rent was abolished; and
the provisions of the Revised Statutes, i. 476, giving preference to landlords' claims
for rent over judgment creditors, were repealed. (Laws of sess. 69th, ch. 274.) It
will be perceived that these are momentous changes in long established law.
(ƒ) Cornell v. Lamb, 2 Cowen, 652; Smith v. Colson, 10 Johns. 91. The case of
Cornell v. Lamb assumes that a reversionary interest must be subsisting in the person
who distrains; but that case arose prior to the New York Revised Statutes, and when
the extended provision in those statutes had not been adopted. The restriction as
to the necessity of a reversionary interest mentioned in that case seems to be now
removed by the 18th section of the statute above cited. A doubt was suggested, in
right apart from the deed. But the court
held that although the rent was a rent
service, there might be a rent service
without tenure; that the right of distress,
unless derived from a deed, was incident
to tenure only; and that there were no
tenures in Pennsylvania since the Rev-
olution, in spite of the statute Quia Emp-
tores not being in force. Wallace v. Harm-
stad, 44 Penn. St. 492.
It is now held in New York that a rent
purporting to be reserved in fee upon a
conveyance of lands is a rent charge, not
a rent service; but that the right of
reentry may be created by deed, and is
valid in favor of the grantor of the land,
his heirs, devisees, and assigns, against
the grantee, his heirs, and assigns. Van
Rensselaer v. Barringer, 39 N. Y. 9, and
cases cited; Van R. v. Dennison, 35 N. Y.
393; Van R. v. Slingerland, 26 N. Y. 580;
Van R. v. Hays, 19 N. Y. 68; Van R. v.
Ball, ib. 100; Hosford v. Ballard, 39 N. Y.
147; Cruger v. McClaughry, 51 Barb. 642;
8. c. 41 N. Y. 219. So, the covenants.
Van Rensselaer v. Read, 26 N. Y. 558;
Tyler v. Heidorn, 46 Barb. 439.
Lyon v. Chase, 51 Barb. 13; Hunt .
Thompson, 2 Allen, 341.
See
[ 618 ]
LECT. LII.]
* 463
OF REAL PROPERTY.
authorize a distress does not necessarily require a formal lease,
and it may be implied from circumstances, and a parol lease will
be sufficient. (a)
The best way of reserving perpetual rents, if it be intended that
rents should always be of the same value, is to stipulate that the
payment be in kind, such as wheat or other produce, or in cattle
or poultry. This was the almost universal practice in ancient
times, and a great proportion of the ancient leases in New York,
in the manor counties, were of that description. By the statute
of 18 Eliz., one third part of the rent upon college leases was
directed to be reserved in corn, to be paid either in corn, or at the
current prices at the nearest public market. We have an instance
in New York of the same provident foresight in the act
instituting the University, (b) *and limiting its annual *463
income to 40,000 bushels of wheat. This arrangement
saves the interest of the persons in whose favor rent is reserved
from sinking by the depreciation of money, owing to the augmen-
tation of gold and silver, and the accumulation of paper credit.
The rents which have been reserved in corn, says Dr. Smith,
have preserved their value much better than those which have
been reserved in money. (a)
In the feudal ages, a great proportion of the produce of the
the case of Cornell v. Lamb, whether the right of distress could exist in those cases
where the land was allodial, without an authority for that purpose in the lease or
contract. To establish the right of distress at common law, without any power in
the lease, there always existed a rent due, a reversionary interest in the landlord,
and fealty due as incident to the tenure of free and common socage. To remove this
doubt, it was declared by the New York Revised Statutes, i. 718, sec. 3, rendering
all lands in the state allodial, that the abolition of tenures should not take away or
discharge any rents or services certain, which had been or might be created or
reserved. This was intended to subject allodial lands to the incidents which before
applied to socage tenures.
(a) Knight v. Bennett, 3 Bing. 361; Cornell v. Lamb, 2 Cowen, 652; Jacks v. Smith,
1 Bay, 315. It was to be presumed, that in those states in which the English law of
distress for rent has been essentially preserved, the remedy had equally been extended
to every kind of rent. But I should infer that this was not the case in Virginia; for
in the American Jurist, No. 8, the question is raised, and discussed with much acute-
ness and research, whether in Virginia, on the conveyance of land in fee-simple, reserving
rent, the feoffor, without an express stipulation to that effect, has a right of distress. The
writer concludes in the affirmative, and that on a feoffment in fee, with a reservation of
rent, the feoffee thereby becomes a tenant, and the feoffor a landlord, with the remote
reversionary interests called a reverter.
3) Laws of New York, sess. 36, c. 69, sec. 1.
(a) Smith's Wealth of Nations, i. 34, 187
[ 619 ]
464
[PART VI.
OF REAL PROPERTY.
land went as rent to the landlord. The cultivators of the soil
were generally bondsmen, or tenants at will, whose labors in peace
and services in war were equally at the command of the landlord.
In modern times, the rent of land has been tripled and quadru-
pled; but the produce of the land, in the progress of improve-
ment, has been increased in a much greater proportion, and the
amount of the yearly produce of land is several times greater
than the amount of the yearly rent. (b)
(2) When and how far not Payable.—1. (Of eviction.) — It
is a rule of law, that the rent must be reserved to him from whom
the land proceeded, or to his lawful representatives, and it cannot
be reserved to a stranger. Thus, if A. leases a lot or parcel of
land to B., on a certain rent, the payment of that rent cannot be
reserved to C.; and the reason is, that the rent is payable as a
return for the possession of the land, and it must, therefore, be
rendered to the person from whom the land passed. (c) It was
also, on the same ground, decided, in Prescott v. De Forest, and
afterwards in Cornell v. Lamb, (d) that the right of distress for
rent was incident to the reversion, and that no other person
*464 could distrain *but he who owned the reversion. The
person who distrains must have some reversionary interest
to sustain the right. (a) If the landlord dies before the rent
becomes due, it goes to the heir as incident to the reversion; but if
he dies after the rent had become payable, it goes to the executor
or administrator as part of the personal estate, and the executor or
administrator has the same remedy by action or by distress, for
the recovery of all such arrears, that the testator or intestate
might have had if living. (b) If the tenant be evicted from the
lands demised to him, by a title paramount, before the rent falls
due, he will be discharged from the payment of the rent, for the
obligation to pay ceases when the consideration for it ceases, and
which was the enjoyment of the land. (c) But if the lawful evic-
(3) Smith's Wealth of Nations, i. 333.
(c) Litt 8. 346; Co. Litt. 143, b.
(d) 16 Johns. 159; 2 Cowen, 652.
(a) This is altered in New York by statute. Vide supra, 461.
(b) 1 Saund. 287, n. 17; Strafford v. Wentworth, Prec. in Ch. 555; Rockingham v.
Penrice, 1 P. Wms. 177; Laws of New York, sess. 36, c. 63, sec. 18; New York
Revised Statutes, i. 747, secs. 21, 22; 2 Dana (Ky.) 54. A purchaser of the rever-
sion at sheriff's sale is entitled to the rent becoming payable after the execution of the
deed. Bank of Pennsylvania v. Wise, 3 Watts, 394. [Martin v. Martin, 7 Md. 368.]
(c) 2 Roll. Abr. tit. Rent, O.; 1 Saund. 205, n.
[ 620 ]
LECT. LII.]
* 464
OF
OF REAL PROPERTY.
tion by paramount title be of part only of the demised premises,
the rent is apportionable, and the eviction a bar pro tanto. (d) 1
(d) Stevenson v Lambard, 2 East, 576; Lansing v. Van Alstyne, 2 Wend. 561.
• Eviction. A wrongful eviction of a
tenant by his landlord (post, 470) from a
part of the premises demised by a written
lease for one entire rent, is a bar to any
claim either for rent under the lease, or
for use and occupation. Leishman v.
White, 1 Allen, 489; Christopher v.
Austin, 1 Kern. 216; Shumway v. Collins,
6 Gray, 227. So is a refusal to admit the
tenant to a portion of the premises. Mc-
Clurg v. Price, 59 Penn. St. 420. See
Reed v. Reynolds, 37 Conn. 469; Greton
v. Smith, 33 N. Y. 245. But after admis-
sion nothing less than an eviction will
suspend rent either in whole or in part.
Fuller v. Ruby, 10 Gray, 285. But see
Rogers v. Ostrom, 35 Barb. 523. And a
partial eviction does not put an end to
the tenancy, or discharge the covenants
relating to the condition of the premises.
Morrison v. Chadwick, 7 C. B. 266; New-
ton v. Allin, 1 Q. B. 518. The tenant
must be deprived of part of that for which
he pays the rent; he will not be dis-
charged by being deprived of the use of a
mere easement. Williams v. Hayward,
1 El. & El. 1040, 1046; or by his landlord's
breach of covenant; ib.; Kelsey v. Ward,
38 N. Y. 83; or by his landlord's erecting
a building on adjoining land which dark-
ens his windows. Palmer v. Wetmore, 2
Sandf. 316; Myers v. Gemmel, 10 Barb.
537; Royce v. Guggenheim, 106 Mass.
201, 204. And the eviction must be
something more than a mere trespass or
act interfering with the beneficial enjoy.
ment of the demised premises. It is
something done by the landlord indicating
his intention that the tenant shall no
longer continue to hold the premises.
Upton v. Townend, Upton v. Greenlees,
17 C. B. 30, 64, 68; Lounsbery v. Snyder,
31 N. Y. 514; Gilhooley v. Washington,
4 Comst. 217; Peck v. Hiler, 31 Barb.
117; Edgerton v. Page, 1 Hilton, 320, 20
N. Y. 281. Thus, where two adjoining
tenements, which were let by separate
leases, were destroyed by fire, and the land-
lord in rebuilding intentionally changed
the plan of the tenements, making one
larger and the other smaller than before,
it was held an eviction as to both. Upton
v. Townend, &c., sup. But see Campbell
v. Shields, 11 How. Pr. (N. Y.) 565;
Blair v. Claxton, 18 N. Y. 529. Any act
of a grave and permanent nature done by
the landlord with the intention and effect
of depriving the tenant of the enjoyment
of any portion of the demised premises
is an eviction in the modern sense which
suspends the entire rent while it lasts.
The question whether the act is of that
character and done with that intent is for
the jury. Upton v. Townend, Upton v.
Greenlees, 17 C B. 30; Royce v. Guggen
heim, 106 Mass. 201.
There is another class of cases, at
least in America, besides those of actual
eviction which have been mentioned, in
which, without any substantial change
being made in the subject matter of the
demise, there is a diminution of beneficial
occupation, as shown in note (f), suf-
ficient to justify the tenant in leaving,
and which he may turn into an eviction
by doing so; but he must actually quit
the premises. Cohen v. Dupont, 1 Sandf.
260; Edgerton v. Page, 20 N. Y. 281, 1
Hilton, 320; Greton v. Smith, 33 N. Y.
245, 249; Rogers v. Ostrom, 35 Barb. 523;
Jackson v. Eddy, 12 Mo. 209 But where
the tenant did not leave the premises, the
following acts have been held not to
amount to an eviction: the erection of a
fence so that the tenant could only reach
the premises over land of another; Boston
& W. R.R. v. Ripley, 13 Allen, 421; &i-
lowing waste pipes to leak into the prem-
ises; Edgerton v. Page, 20 N. Y. 281;
cutting holes through floors and ceiling
[ 621 ]
* 465
[PART VI.
OF REAL PROPERTY.
So, if there be an actual expulsion of the tenant from the whole,
or a part, by the lessor, before the rent becomes due, and it be
continued until after the rent becomes due, the entire rent is
suspended; (e) but no offensive or outrageous conduct on the
part of the landlord, as by erecting a nuisance in the neighbor-
hood of the demised premises, will be sufficient. (ƒ)
* 465
*2. (Destruction of the premises.) — The cases have
afforded a full discussion of the interesting question, how
far a tenant is excused from the payment of rent, when he is
deprived, even by inevitable necessity or misfortune, and with-
out any default on his part, or on the part of the laudlord, of the
enjoyment of the premises. In Taverner's Case, (a) which arose
in 34 and 35 Hen. VIII., a man made a lease of land, and of a
(e) Salmon v. Smith, 1 Saund. 202, 204, note 2; Co. Litt. 148, b; Ascough's Case,
9 Co. 135; Page v. Parr, Style, 432; Timbrell v. Bullock, ib. 446; Pendleton v.
Dyett, 4 Cowen, 581; Bennett v. Bittle, 4 Rawle, 339. The same principle applies if
the tenant has been obliged to pay rent to a person having a prior and better title to
it. Sapsford v. Fletcher, 4 T. R. 511. The interference of the landlord with the pos
session deliberately, by entry, eviction, or disturbance of the possession, and depriving
the tenant of the beneficial enjoyment of the premises, will suspend or extinguish the
rent. Ogilvie v. Hull, 5 Hill (N. Y.), 52.
(f) Pendleton v. Dyett, ub. sup. But this decision was reversed in the New York
Court of Errors, as, see s. c. 8 Cowen, 727; and the latter doctrine is, that if the
landlord, by indecent and outrageous conduct, as by bringing habitually a lewd woman
into the house, or by habitually using indecent familiarities with the tenant's wife,
induce the lessee and his family, in order to escape from such a nuisance, to quit the
premises, it amounts to a constructive eviction, and bars the landlord from his action
for rent. Gunning v. Burdell, N. Y. Marine Court, Sept. 1843, s. P. It is an implied
condition in leasing a house, that it be fit for the purpose of occupation; and if it be
infected with a nuisance, the lessee is not bound to stay in it, and is discharged from
Smith v. Marrable, 1 Carr. & Marsh. 479; s. c. 11 M. & W. 5. This last
case was considered by the court, in Sutton v. Temple, and Hart v. Windsor, 12 M.
& W. 52, 68, as very limited and questionable; and again, in Surplice v. Farnsworth,
7 Man. & Gr. 576, the Court of C. B. followed these latter decisions, and decided that
the tenant is not entitled to quit until the tenancy is regularly terminated, although
the premises be out of repair, and the landlord is bound to repair, and does not.
(a) Dyer, 56, a.
rent.
for belts for machinery; Elliot v. Aiken,
45 N. H. 30; piling firewood on the prem-
ises; Lounsbery v. Snyder, 31 N. Y. 514.
See also Cram v. Dresser, 2 Sandf. 120.
Acts not amounting to an eviction
might nevertheless affect the amount to
be recovered for use and occupation.
Boston & W. R.R. v. Ripley, 13 Allen,
421; Gilhooley v. Washington, 4 Comst.
217; Cowie v. Goodwin, 9 C. & P. 378;
and would even be allowed to be set up by
way of recoupment in an action for rent,
in some jurisdictions where that doctrine
has been extended in modern times.
Kolsey v. Ward, sup.
[622]
LECT. LII.]
* 466
OF REAL PROPERTY.
flock of sheep, rendering a certain rent, and all the sheep died.
The question was, whether the tenant could have relief from this
calamity, at the expense of his landlord, by an apportionment of
the rent. It was very much debated, and different opinions were
entertained by the sergeants and judges who discussed the sub-
ject. Some of them thought there was good reason and equity
to apportion the rent, or, in other words, to make a proportional
deduction for the loss of the sheep. But others held to the con-
trary opinion, and that though the sea, or an inundation, should
gain upon the land, or part of it be burnt by wildfire, the entire
rent must issue out of the remainder, and that it would be different
if part of the land should be recovered from the tenant by a title
paramount to that derived from his landlord. The point was left
unsettled by this early decision; but the opinion of those who
were for the payment of the entire rent gained a decided superi-
ority in the course of the subsequent century.
In Paradine v. Jane, (b) an action of debt was brought for rent,
upon a lease for years, and the defendant pleaded, by way of
excuse for the nonpayment of the rent, that he had been driven
from the premises by public enemies, viz., by Prince Rupert and
his soldiers. The case was fully and ably argued before the
King's Bench, during the time of the civil wars, in the reign of
Charles I. It was insisted, that by the law of reason, a man ought
not to pay rent when he could not enjoy, without any
default on his part, the land demised * to him, and that the *466
civil and common law exempted the party in such a case.
But Rolle, J., (the same person who was author of the Abridg-
ment,) overruled the plea, and held, that neither the hostile army,
nor an inundation, would exempt the tenant from paying rent.
The same doctrine has been continued to this day; and it is well
settled, that upon an express contract to pay rent, the loss of the
premises by fire, or inundation, or external violence, will not
exempt the party from his obligation to pay the rent. The case
of Hallet v. Wylie (a) was decided on that principle, and the prin-
cipal English authorities were reviewed. Since that decision, the
point has been presented and decided the same way in the Eng-
lish C. B., in Baker v. Holtzapffell; (b) and the unsettled ques-
tion, whether a court of equity would grant relief to the tenant
(a) 3 Johns. 44.
(b) Aleyn, 26; Style, 47.
(b) 4 Taunt. 45.
[ 623 ]
467
[PART VI.
OF REAL PROPERTY.
against the landlord's claim at law for rent, has also been put at
rest by the decision in Hare v. Grove, (c) in the English Ex-
chequer, and of Holtzapffell v. Baker, (d) in the English Court of
Chancery. In both of these cases, the court of equity refused to
interfere in favor of the tenant, who was considered as having no
equity against the effect of his own express agreement to pay the
rent. The same rule prevails equally in England and in this coun-
try, in the case of an express covenant to pay rent; (e) but it is
understood that, by the civil law, the prætor would exempt the
tenant from paying the rent, or modify the obligation, according to
equity, when the property was destroyed by fire, inunda-
*467 tion, or violence, * or the crops failed by a bad season. (a)
So, Lord Northington, in Brown v. Quilter, (b) thought it
very clear, that a man should not pay rent for what he cannot
enjoy, if occasioned by an accident which he did not undertake
to meet. But I apprehend that the law, as it is now settled on
that point, rests on solid foundations of justice and policy. It is
to be observed, that the case only applies to express agreements
to pay; and if a party will voluntarily create a duty or charge
upon himself, he ought to abide by it when the other party is not
in fault, and when he might have provided, if he had chosen,
against his responsibility in case of such accidents. The loss of
the rent must fall either on the lessor or lessee; and there is no
more equity that the landlord should bear it than the tenant,
when the tenant has engaged expressly to pay the rent, and when
the landlord must bear the loss of the property destroyed. The
calamity is mutual; and there is much weight in the observation
of the counsel, in one of the cases referred to, that these losses
by fire may often proceed from the carelessness of tenants; and
(c) 3 Anst. 687.
(d) 18 Ves. 115. See also, to the same point, Leeds v. Cheetham, 1 Sim. 146, and
Lamott v. Sterett, 1 Harr. & J. 42.
(e) Pollard v. Shaaffer, 1 Dallas, 210; Fowler v. Bott, 6 Mass. 63; Wagner v.
White, 4 Harr. & J. 564; Leeds v. Cheetham, 1 Sim. 146, contra; Ripley v. Wight-
man, 4 M'Cord, 447; Gates v. Green, 4 Paige, 355; Linn v. Ross, 10 Ohio, 412.
(a) Dig. 19. 2. 15. 2; ib. 50. 17. 23; Code, 4, 65, 8; and see the copious annota-
tions in the Elzevir edition of the Corpus Juris Civilis, annexed to the article in the
Code. The doctrine of the civil law is also followed in the French law, and in the law
of other countries which follow the civil law. Code Civil, n. 1722, 1733; 1 Bell's
Comm. 452; Civil Code of Louisiana, art. 2667. Puffendorf (b. 5, c. 6, sec. 2) con-
siders the rule of the civil law to be just and equitable.
་
(b) Amb. 619.
[ 624 ]
LECT. LII.]
* 468
OF REAL PROPERTY.
if they can escape from the rent, which they may deem incon-
venient, by leaving the property carelessly exposed, it might
very much lessen the inducements to a reasonable and necessary
vigilance on their part. (c)
* 468
Inevitable accident will excuse a party from a penalty, but will
not relieve him from his covenant to perform. Thus, in a case as
early as 28 and 29 Henry VIII., (d) the party covenanted to sus-
tain and repair the banks of a river, under pain of forfeit-
ure of 107, and the banks were destroyed suddenly *by a
great flood. The court held, that he was bound to repair,
but was not subjected to the penalty. And in the modern
cases, (a) it has been held, that the lessee or the assignee of a
lease, in which the lessee covenanted for himself and his assigns,
absolutely to repair, was bound to repair, notwithstanding the
buildings were accidentally destroyed by fire. And if the prem-
ises be out of repair, the tenant cannot make repairs at the ex-
pense of the landlord, or deduct the amount of them out of the
rent, unless there be a special agreement for that purpose between
the tenant and his landlord. (b) But if the tenant be not under
any agreement to repair, and the premises become unsafe and
useless from want of repairs, the tenant from year to year may
quit without notice, and he would not be liable, in an action for
use and occupation, for any rent after the occupation had ceased
to be beneficial. (c) ¹
1
(c) In Hart v. Windsor, 12 M. & W. 79, 85, the authorities are all cited by the
counsel and Mr. Baron Parke, in favor of the binding force of the contract to pay
rent on a demise of land, though occupation becomes impracticable by calamity or
vis major, provided the estate continues.
(d) 1 Dyer, 33 a.
(a) The Earl of Chesterfield v. Duke of Bolton, Comyns, 627; Bullock v. Dom-
mitt, 2 Chitty K. B. 608; s. c. 6 T. R. 650.
(b) Mumford v. Brown, 6 Cowen, 475.
(c) Edwards v. Hetherington, cited in Salisbury v. Marshall, 4 Carr. & P. 65. The
English doctrine is, that to enable a tenant to avoid his lease, there must be a default
on the part of the landlord, as where there was either error or fraudulent description
of the premises, or they were rendered uninhabitable by the wrongful act or default
of the landlord. Izon v. Gorton, 5 Bing. N. C. 501; Arden v. Pullen, 10 M. & W. 321.
1 (a) Destruction of Premises. — Accord- is let and afterwards burned. But when
ing to the doctrine of the later American the land itself is let, the rent issues from
cases, when the premises out of which the land, and of course none the less for
the rent issued are destroyed, the liability the destruction of a house upon it. Graves
terminates, although there be an ex- v. Berdan, 26 N. Y. 498; s. c. 29 Barb.
press covenant as where a single room 100; Womack v. McQuarry, 28 Ind. 103;
[ 625 ]
VOL. III.
40
469
[PART VI.
OF REAL PROPERTY.
When rent is due, a tender upon the land is good, and prevents
a forfeiture. The tenant is not bound to go and seek the land-
lord, provided the contract be silent as to the place of payment;
and yet a personal tender to the landlord, off the land, is also
good. (d) The time of payment depends upon the contract;
and if there be no special agreement to the contrary, the payment
would be due either yearly, half-yearly, or quarterly, according
to the usage of the country, and the presumed intention to con-
form to it. If there be no usage in the case, the rent is due at
the end of the year. But in the city of New York, it is provided
by statute, that, in the absence of any special agreement, the rent
is payable quarterly, and the hiring terminates on the first of May
thereafter. (e)
* 469
*3. (Of apportionment.) — On the subject of the appor-
tionment of rent, there are several distinctions to be noticed.
There are two modes of apportioning rent. The one is, by grant-
ing the reversion of part of the land out of which the rent issues;
(d) Walter v. Dewey, 16 Johns. 222; Gibbs, C. J., Soward v. Palmer, 8 Taunt.
277; Hunter v. Le Conte, 6 Cowen, 728.
(e) New York Revised Statutes, i. 744, sec. 1.
Stockwell v. Hunter, 11 Met. 448; Kerr
v. Merchants' Exch. Co., 3 Edw. Ch. 315;
Winton v. Cornish, 5 Ohio, 477; Ains-
worth v. Ritt, 38 Cal. 89; McMillan v.
Solomon, 42 Ala. 356; Buerger v. Boyd,
25 Ark. 441. Contra, Izon v. Gorton, 5
Bing. N. C. 501; sup. n. (c); Helburn v.
Mofford, 7 Bush, 169.
Other cases in which the principle of
Paradine v. Jane was applied to covenants
in leases are Leavitt v. Fletcher, 10 Allen,
119; Kramer v. Cook, 7 Gray, 550; Tilden
v. Tilden, 13 Gray, 103, 109. But there
is a tendency to relax the strictness of the
general doctrine as to contracts there laid
down, in many cases, some of which will
be found ante, ii, 468, n. 1; 591, n. 1.
Dexter v. Norton, 47 N. Y. 62.
(b) Unfitness of Premises.-With regard
to the existence of any condition in the
lease of a house that it is fit for occupa-
tion, or duty to disclose its state, it is to
be observed that Smith v. Marrable, ante,
464, n. (ƒ), was the lease of a furnished
[ 626 ]
house ready for immediate occupation.
See Howard v. Doolittle, 3 Duer, 464;
Dutton v. Gerrish, 9 Cush. 89, 94. The
general rule is the other way in the ab.
sence of active deceit or express warranty.
Keates v. Cadogan, 10 C. B. 591; Foster
v. Peyser, 9 Cush. 242; Welles v. Castles,
3 Gray, 323; Cleves v. Willoughby, 7
Hill, 83; Elliot v. Aiken, 45 N. H. 30, 36.
See Hazlett v. Powell, 30 Penn. St. 293.
As to duty to repair, see iv. 110, n. 1.
(c) Place of Tender. With regard to
the place of tender, there is no doubt
that at common law the lessor must
demand the rent upon the land on the day
when it becomes due, at a convenient time
before sunset, but not earlier, in order to
reënter for breach of condition upon non-
payment. Acocks v. Phillips, 5 H. & N.
183. But a covenant for payment, like
other contracts of that kind, is not per-
formed unless the tenant seek the landlord.
Haldane v. Johnson, 8 Exch. 689.
Cf. solem collocare of Salic Law (Merkel),
§ 50. 1.
LECT. LII.]
* 470
OF REAL PROPERTY.
the other by granting part of the rent to one person, and part to
another. (a) It is laid down as a general rule, in the more
ancient cases, that if the owner of a rent service purchased part
of the land out of which the rent issued, the rent was to be
apportioned according to its just value, and the tenant was dis-
charged of the rent, in a ratio to the land purchased. But if a
man had a rent charge, and purchased or released part of the
land out of which the rent issued, the whole rent was held to be
extinguished. (b) The objection to the doctrine of the apportion-
ment of rent was, that it exposed the tenant to several suits or
processes of distress, for a thing which was originally entire, and
he ought not to be obliged to pay his rent in different parcels,
and to several landlords, when he contracted to pay, in one entire
sum, to one person. But the convenience of mankind dictated
the necessity of an apportionment of rent in a variety of cases.
Though it was a principle of the common law that an entire con-
tract could not be apportioned, yet the apportionment of rent was,
under certain circumstances, allowed by the common law, either
on severance of the land from which it issued, or of the reversion
to which it was incident. A person has a right to sell the whole
or any part of his reversionary interest in land. It may be neces-
sary to divide his estate out on rent among his children, or to
sell part to answer the exigencies of the family; and it would
be intolerable if such a necessary sale worked an extinguishment
of the whole rent. The rent passes as an incident to the pur-
chaser of the reversion, and the tenant may always avoid
several suits and distresses by a punctual payment * of his *470
rent. The rent is to be apportioned among the several
owners of the reversion of the rent, according to the value of the
land; and whenever the question becomes a litigated one in a
court of justice, it is the business of the jury, upon evidence pro-
duced, to apportion the rent to the value of the land. These
(a) Abbott, C. J., 5 B. & Ald. 876.
(b) Litt. sec. 222; Co. Litt. 147, b, 148, a; Talbot's Case, 8 Co. 104, 106; Gilbert
on Rents, 152, 163, 164.
1 Apportionment.
The text is con-
firmed by Van Rensselaer v. Gallup, 5
Denio, 454. But an annuity charged
upon fluctuating incomes of different
funds was contributed for according to
the actual income de anno in annum, and
not in proportion to the capitalized value.
Ley v. Ley, L. R. 6 Eq. 174.
When a rent charge of the kind de-
scribed as existing in New York, ante,
[ 627 ]
* 471
[PART VI.
OF REAL PROPERTY.
things are now generally regulated by the agreement of parties,
whenever a sale of part only of the demised premises is made;
and the tenant has no concern with the transaction, since he pays
no more than his stipulated rent, and to the claimants in the pro-
portions settled by themselves. There is no doubt, therefore,
that a rent charge may be apportioned, whenever the reversioner
or owner of the rent either releases part of the rent to the tenant,
or conveys part of the land to a stranger. (a) The rent is also
liable to apportionment by act of law, as in cases of descent and
judicial sales. (b) If the landlord enters upon part of the demised
premises by wrong, the better opinion is, that it suspends the
payment of the whole rent until the tenant be restored to the
whole possession, for the lessor ought not to be able so to appor-
tion his own wrong as to oblige the tenant to pay any thing for
the residue ; (c) but the rule is otherwise in the case of a lawful
entry into part of the demised premises, by the authority of the
tenant himself. (d)
The rule at common law was, that neither law nor equity would
apportion rent as to time, and, therefore, if the tenant for life
gave a lease for years, rendering a yearly rent, and died in the
course of the year, the rent could not be apportioned, and the
tenant would go free of rent for the first part of the year.
* 471 The principle was, that an entire contract could not be
apportioned. The imperfect performance of it, depending
on various acts, could not reasonably afford a title to the whole,
(a) Co. Litt. 148, &; Gilbert on Rents, 163; Farley v. Craig, 6 Halst. 262.
(b) Wotton v. Shirt, Cro. Eliz. 742; Litt. sec. 224; 1 Rol. Abr. tit. Apportionment,
D. pl. 3, 4, 5. The judicial sales spoken of in the cases cited were those in which
part of a rent charge was extended on an execution, and it was held good, though the
tenant might be liable to two executions.
(c) 1 Rol. Abr. 940, n.; Gilbert's Law of Executions, 283; Smith v. Raleigh, 3
Camp. 513; Briggs v. Hall, 4 Leigh, 484.
(d) Hodgkins v. Robson, 1 Vent. 276; Vaughan v. Blanchard, 1 Yeates, 176.
461, n. 1, descends, the right of reëntry
attached to it is also apportioned among
the heirs of the owner. Cruger v. Mc-
Laury, 41 N. Y. 219. As to the effect
of an eviction by the landlord, see 464,
n. 1. A rent service is apportioned on a
sale of part of the reversion, and a subse-
quent eviction of the tenant by the pur-
chaser from his portion, even with the
advice and consent of the landlord, will
not suspend the right of the latter to the
residue of his rent. Reed v. Ward, 22
Penn. St. 144; Linton v. Hart, 25 Penn.
St. 193. So as to what are held to be
rent charges in New York, ante, 461, n. 1⋅
Van Rensselaer v. Chadwick, 22 N. Y.
32.
[ 628 ]
LECT. LII.]
*472
OF REAL PROPERTY.
and from the complex nature and uncertain value of part per-
formance, it could not afford a title to any part of the stipulated
consideration. (a) But the statute of 11 Geo. II. c. 19, sec. 15,
supplied the principle, that apportionment should be made of
rent in respect to time in such cases, and that part of the statute
has been reënacted or adopted in this country. (b)
(3) of the Remedy. — The remedy provided by law for the
recovery of rent, depends upon the nature of the instru
ment or contract by *which payment is secured. The *472
suit may be an action of covenant, or debt, or assumpsit,
for the use and occupation of the land. The action of assumpsit
to recover a reasonable satisfaction for use and occupation, was
first given by the English statute of 11 Geo. II. c. 19, and it has
been followed by the N. Y. Revised Statutes, vol. i. 748, sec. 26.
If the tenant never actually went into the possession, the remedy
(a) Bro. Abr. tit. Apportionment. pl. 7, 26; Clun's Case, 10 Co. 127; Jenner v.
Morgan, 1 P. Wms. 392. The Master of the. Rolls, in Hay v. Palmer, 2 id. 502;
Cutter v. Powell, 6 T. R. 320; [Stillwell v. Doughty, 3 Bradf. (N. Y.) 359; Marshall
v. Moseley, 21 N. Y. 280.] Annuities and servants' wages, like rents, were not in gen-
eral apportionable at common law, and the rule seemed to be applicable to all periodi-
cal payments becoming due at fixed intervals. If a servant was hired for the month
or year, and the service ceased within the time, there was no apportionment of wages
for the actual time of service, though the rule operated in some cases most unjustly.
Bro. Abr. tit. Apportionment, pl. 13, 22, 26. Countess of Plymouth v. Throgmorton,
1 Salk. 65. But the old rule is now held to be relaxed, and wages, it is understood,
may be apportioned, upon the principle that such is the reasonable construction of
the contract of hiring. Lawrence, J., 6 T. R. 326; M'Clure v. Pyatt, 4 M'Cord, 26;
Bacot v. Parnell, 2 Bailey (S. C.), 424. And though annuities are not subject to appor-
tionment, like rent, under the statute of 11 Geo. II., yet, if the annuitant dies
within the quarter or year, as the case may be, and the annuity was given for main-
tenance in infancy, or for the separate maintenance of a feme covert, equity will appor-
tion the annuity up to the day of the annuitant's death, on the principle that the
allowance was necessary. Hay v. Palmer, 2 P. Wms. 501; Pearly v. Smith, 3 Atk.
260; Howel v. Hanforth, 2 Wm. Bl. 843; 17 Serg. & R. 173, s. P. [Blight v. Blight, 51
Penn. St. 420. But not law. The Queen v. Lords of the Treasury, 16 Q. B. 357, 363.]
Dividends, or moneys invested in stock, are also held not to be, as a general rule,
apportionable, either in law or equity. Wilson v. Harmer, 2 Ves. 672; Rasleigh v.
Master, 3 Bro. C. C. 99.
(b) N. Y. Revised Statutes, i. 747, sec. 22; 17 Serg. & R. 171; Ex parte Smyth,
1 Swanst. 337. The editor has annexed a learned note to the last case, on the doc-
trine of apportionment, as existing both before and since the statute of 11 Geo. II.
The statute of 4 William IV. c. 22, in amendment of the Act of 11 Geo. II., declared
that all rents service, rents charge, and other rents, annuities, dividends, and all other
payments of every description, made payable at fixed periods, should be apportioned, and
it provided for the recovery of the apportioned parts from the last period of pay
ment.
[ 629 ]
* 472
[PART VI.
OF REAL PROPERTY.
must be upon the lease or agreement; and if the tenant once
entered into possession, the recovery may be, under the English
statute, for the whole term; but in New York it is doubted
whether the recovery could be had beyond the period of actual
occupation. (a) The landlord may also reënter, or recover pos-
session of the land, by the action of ejectment, for nonpayment
of rent, provided half a year's rent or more be in arrear, and no
sufficient distress can be found; and if the tenant, in such a case,
does not redeem within six months after execution issued, the land
will be deemed discharged from the lease or contract. (b) But
the more usual, prompt, and effectual remedy is by distress, which
was provided by the common law, and has been regulated and
greatly improved by statute in England and in this country. (c)
In New York we have adopted the common law on the subject
of distress for rent, and we have likewise reënacted the substance
of the English statutes of 52 Hen. III., 3 Edw. I., 13 Edw. I., 21
Hen. VIII., 17 Car. II., 2 W. and M., 8 Anne, and 4 and 11 Geo.
II., (d) and which statutes were made on purpose to control abuses,
and mitigate the rigor of the common law, as well as render more
certain and effectual the right of reëntry on the part of the land-
lord. (e) The English common and statute law, in relation to
distress for rent, and the relief of landlords, has been generally,
and I apprehend essentially, adopted in several of the other states
as, for instance, in New Jersey, (ƒ) Pennsylvania, (g) Delaware,
Indiana, (h) Illinois, (¿) Maryland, Virginia, (j) Kentucky, (k)
(a) Wood v. Wilcox, 1 Den. 37.
(b) This was the provision of the statute of 4 Geo. II., and it is adopted in New
York (N. Y. Revised Statutes, ii. 505), and probably in several of the other states.
(c) The summary proceedings by distress, in its two branches for damage feasant
for cattle, and for arrears of rent, have come down from the Anglo-Saxon times, as is
shown by Sir Francis Palgrave, in his Rise and Progress of the English Common-
wealth, c. 6.
(d) N. Y. Revised Statutes, i. 747, secs. 18-24; ib. ii. 500-505.
(e) In New York, by statute of 13th May, 1846, c. 274, the remedy of distress for
rent is abolished, and the right of reëntry reserved to the landlord by lease or grant,
in default of goods, was regulated. The reëntry can be made only upon fifteen days'
previous notice thereof.
(ƒ) Elmer's Dig. 134. 302; R. S. of New Jersey, 1847, tit. 4, c. 3.
(g) Purdon's Penn. Dig. 870-878; Quinn v. Wallace, 6 Wharton, 452.
(h) In Indiana, the landlord cannot distrain in person or by his bailiff; but under
(i) Revised Laws of Illinois, ed. 1833.
(j) Act of 1792; Revised Code of Virginia, i. 214.
(k) Statute of Kentucky, 1811.
[630]
LECT. LII.]
* 473
OF REAL PROPERTY.
Mississippi, (1) South Carolina, and Georgia; (m) but the whole
law has been judicially declared in North Carolina to be
irreconcilable with the spirit of their laws and govern- *473
ment, and to be of no force in that state. (a) It is deemed
*
to be equally objectionable, in the opinion of judicial authority, in
South Carolina, and fit to be abolished, as being an unreasonable
and oppressive relict of the feudal system, and repugnant to the
policy of our institutions. (b) The common law method of distress
for rent is expressly abolished by statute in Alabama. (c) In
Louisiana, the English remedy for rent essentially prevails, for
the lessor has a right of pledge on the movable effects of the
lessee found upon the premises, and also on the movable effects
of third persons being in a house or store on the premises by
their consent, express or implied. The right does not extend to
goods transiently or accidentally on the premises, and the lessor
the statute of 1824, he must go before a justice of the peace, and on oath obtain a
warrant to a constable to make the distress; and if the tenant replevies the goods,
he gives bond to prosecute the landlord, and not the officer. Harris v. M'Faddin, 2
Blackf. 71; Statutes of Indiana, 1838, p. 472.
(1) Revised Code of Mississippi, 1824; 3 Howard, 54.
(m) Hartshorne v. Kierman, 2 Halst. 29; Hoskins v. Paul, 4 id. 110; Woglam v.
Cowperthwaite, 2 Dallas, 68; Garrett v. Hughlett, 1 Harr. & J. 3; City Council of
Charleston v. Price, 1 M'Cord, 299; Dorsey v. Hays, 7 Harr. & J. 370; Neale v. Clau-
tice, ib. 372; Smith v. Meanor, 16 Serg. & R. 375; Ridge v. Wilson, 1 Blackf. 409;
Wright v. Matthews, 2 id. 187; Mayo v. Winfree; 2 Leigh, 370; Jones v. Murdaugh,
ib. 447; Cripps v. Talvande, 4 M'Cord, 20; Burket v. Boude, 3 Dana (Ky.), 209;
Walker (Miss.), 170, 349; Hale v. Burton, Dudley, 105; Hotchkiss's Code of Statute
Laws of Georgia.
(a) Dalgleish v. Grandy, Cam. & Nor. 22; Deaver v. Rice, 3 Batt. 431.
(b) Youngblood v. Lowry, 2 M'Cord, 39. But, notwithstanding this strong lan-
guage, the law of distress is still in force in South Carolina, and the statute of 1808
even allows landlords to distrain for double rent from the demand of possession when
the tenant holds over for three months after notice to quit. Talvande v. Cripps, 3
M'Cord, 147; Reeves v. McKenzie, 1 Bailey, 497. The statute of 11 George II., c. 19,
relative to pleadings in replevin in cases of distress for rent, has been adopted in prac-
tice. Moorhead v. Barrett, 1 Cheeves Law Rep. in S. C. 99. But the statute of 32 Hen.
VIII., c. 37, giving the power of distress to executors, &c., was never in force in South
Carolina. Bagwell v. Jamison, ib. 249. It is worthy of notice, that the process of
distress and the taking of pledges was the Anglo-Saxon mode of enforcing the appear-
ance of the defendant in suits at law. No other process was originally known to the
common law. The free and sturdy Saxons would not submit to personal arrests.
Palgrave's Rise and Progress of the English Commonwealth, ii. 133.
(c) Aikin's Dig. 2d ed. 357. In Tennessee and Ohio it is stated that the law of
distress for rent does not exist. Treatise on Landlord and Tenant, by John N. Taylor,
New York, 1844, p. 230, and which is a learned and valuable digest of the American
law on the subject.
[ 631 ]
*474
[PART VI.
OF REAL PROPERTY.
may exercise his right of seizing the goods while on the land,
or within fifteen days after they are removed, provided they con-
tinue to be the property of the lessee. (d) In the New England
states their law of attachment on mesne process may have super-
seded the law of distress for rent; but under their attachment
laws, the principles of the common law doctrine of distress seem
to have been essentially assumed, subject to the same checks and
limitations which, under the English statute law and modern
decisions, have modified and improved them. (e) I shall, there-
fore, proceed to consider the remedy by distress for rent, upon
the principles of the English common and statute law, as being
incorporated into the jurisprudence of most of the United States.
The exorbitant authority and importance of the feudal aris-
tocracy, and the extreme dependence and even vassalage of the
tenants, was the occasion of introducing the law of distresses,
and which summary remedy is applicable to no other contracts
for the payment of money than those between landlord and
tenant. The nonpayment of rent, or nonperformance
474 of any other stipulated service, was originally, by the
feudal law, a forfeiture of the feud, and the lord was at
liberty to enter and reassume. The severity of those feudal for
feitures was then changed, and intended to be softened into the
right of distress, which was borrowed, as Baron Gilbert sup-
poses, (a) from the civil law, for by that law the creditor had a
right to seize a pledge in order to obtain justice. So, under the
feudal law, instead of insisting upon an absolute forfeiture of the
land, or even of the right of the lord to enter and hold the lands
until the tenant had rendered his service, the law substituted the
seizure of the cattle and other movables found upon the land,
(d) Civil Code of Louisiana, art. 2675-2679.
(e) Potter v. Hall, 3 Pick. 368. The regulation of the law of distress was made by
statute in Massachusetts as early as 1641. Digest of Massachusetts Laws, 1675. The
remedy by the writ of replevin for goods distrained or impounded is regulated by
statute in Connecticut. Revised Statutes, 1821; and by statute in 1838, the writ of
replevin is extended to debts taken by process of foreign attachment. Statutes of
Connecticut, 1838, p. 506. The same remedy was provided for goods impounded or
distrained, by the Plymouth Colony Laws, 1671. See Brigham's ed. 256, 275. See
also Revised Statutes of Vermont, 1839, p. 197. The writ of replevin is given for
goods unduly distrained or attached; but I apprehend the remedy for nonpayment
of rent, in the New England States, is not by distress, but by action of debt or assump
sit. See Mass. R. S. c. 60, secs. 22, 23.
(a) Gilbert on Distresses, 2.
[ 632 ]
LECT. LII.]
* 475
OF REAL PROPERTY.
and allowed them to be detained as a pledge until the damages
were paid. This power of distress, as anciently used, was soon
found to be as grievous and oppressive as the feudal forfeiture.
It was equally distressing to the tenant to be stripped in an
instant of all his goods and chattels, for arrearages of rent, as it
was to be turned out of the possession of his farm. The power
of distraining for rent, and other feudal services, became an engine
of the most insupportable tyranny and oppression. (b) These
abuses were first stated in the statute of 51 Hen. III., De Distric-
tione Scaccarii, wherein it is mentioned, that the commonalty of
the realm had sustained great damage by wrongful taking of dis-
tresses for the king's debts; and it provided, that when beasts
should be distrained and impounded, the owner might feed them
without disturbance; and that the things distrained should not be
sold until the expiration of fifteen days; and that if there were
any chattels to distrain, neither beasts of the plough, nor sheep,
should be distrained; and that the distress should be reasonable in
amount, according to the estimation of neighbors. In the fol-
lowing year, the statute of Marlebridge, in the 52 Henry III.,
was passed, providing more generally against the abuse of
the *right of distress, and that statute stated the abuses *475
of landlords in strong language: Magnates graves ultiones
fecerunt, et districtiones quosque redemptiones reciperunt ad
voluntatem suam. What made the grievance more insupportable
was, that the lords refused to permit the king's courts to take
cognizance of the distresses which they had made at their own
pleasure, and therefore, as Sir Edward Coke observes, they
assumed to be judges in their own causes, contrary to the solid
maxim of the common law. (a) This statute restored the author-
ity of the regular courts, and ordered all distresses to be reason-
able, and that whoever made an excessive distress should be
grievously amerced. The distress was not to be taken or driven
out of the county, and it was not to be made upon a public
highway, and a remedy by replevin was given for a wrongful
distress. By these salutary provisions, the power of distress was
confined to the original intention of the law, which was to seize
the tenant's goods by way of pledge, in order to compel him to
perform his feudal engagements. (b)
(b) Gilbert on Distresses, 3.
(b) Gilbert on Distresses, 4, 34.
(a) 2 Inst. 102, 103.
•
[ 633 ]
• 476
[PART VI
OF REAL PROPERTY.
The common law also imposed several benign restrictions upon
this summary and somewhat perilous authority of distress. It
forbade perishable articles to be distrained, because all pledges
ought to be returned in the same good condition as when taken.
It forbade the tools and implements of a man's trade, as well as
the beasts of the plough, to be distrained, provided other articles
could be found; because the taking of such articles would tend to
produce an utter inability in the tenant to redeem the pledge. (☺)
The goods were also to be put into a pound, and there kept
safely, without being used by the landlord, until they were
redeemed. (d)
*476
* But if the tenant was disposed to controvert the legality
of the distress, either by denying any rent to be due, or
by averring it to be paid, the law provided him with a remedy
by the writ of replevin; which was a writ authorizing the sheriff
to take back the pledge and deliver it to the tenant, on receiving
security from him to prosecute the writ to effect, and to return
the chattels taken, if he should fail in making good his defence. (a)
In modern times, the whole policy of the law respecting dis-
tresses has been changed. It was inconvenient, if not absurd, that
property should be kept in an inactive state in order to compel a
man to perform his stipulated payment. A distress at this day is
no more than a summary mode of seizing and selling the tenant's
property to satisfy the rent which he owes; and the extent and
manner of the operation have been changed, and made entirely
reasonable and just, and equally conducive to the security of the
landlord and the protection of commerce.
When rent is due and unpaid, and when no judgment in a per-
sonal action has been had for the recovery of the same, (b) the
(c) 2 Inst. 132, 133; Gilbert on Distresses, 35, 36.
(d) Cro. Jac. 148. A tender of amends comes too late after the goods distrained
for rent or for trespass are impounded, for they are then in the custody of the law.
Pilkington's Case, 5 Co. 76, a; Ladd v. Thomas, 12 Ad. & El. 117. It is good while
the chattels remain in the custody of the distrainor. Browne v. Powell, 12 Moore,
454; Hilson v. Blain, 2 Bailey (S. C.), 168.
(a) In New Hampshire, judgment for the defendant in replevin is not for the return
of the goods, but for the value of the chattels replevied in damages. Bell v. Bartlett,
7 N. H. 178.
(b) New York Revised Statutes, ii. 500, sec. 2. In Maryland, by statute, in 1832,
the remedy by distress for rent, payable in grain or other produce, was regulated.
In Pennsylvania, judgment in debt for rent, without satisfaction, does not take away
the remedy by distress. Bantleon v. Smith, 2 Binney, 146. The statute of 8 Anne,
[634]
LECT. LII.]
* 476
OF REAL PROPERTY.
landlord, upon demand, may enter immediately, by himself or his
agent, (c) upon the demised premises, and distrain any goods
and chattels that are to be found there, belonging to the tenant
or others, and this right of the landlord to distrain any goods and
chattels upon the premises, is founded upon reasons of public
policy, to prevent collusion and fraud. (d) This was the rule
c. 14, authorized distress during six months after the end of the term, if the lessor's
title and the tenant's possession still continued. This is the statute law also in
Virginia and Kentucky; and the statute in the latter state authorizes the distress,
though the tenant has removed his effects from the land. Lougee v. Colton, 2 B.
Mon. 115.
(c) As a check to abuse in the exercise of the right of distress, the New York
Revised Statutes, ii. 501, secs. 2, 3, 8, require that no distress shall be made for any
rent for which a judgment shall have been recovered in a personal action; and they
also require every distress to be made by the sheriff or one of his deputies, or by a
coustable or marshal of the city or town, and upon the previous affidavit of the land-
lord or his agent, of the amount of rent due, and the time when. So, in Georgia,
the distress warrant is to be granted by a justice of the peace. Prince's Dig. 1837,
687.
(d) Gorton v. Falkner, 4 T. R. 565; Jones v. Powell, 5 B. & C. 647. A stranger's
goods on the land may be distrained even for a rent charge. Saffrey v. Elgood, 1 Ad.
& El. 191. In Virginia, by statute, in 1818, the property of strangers, found upon the
premises, is exempted from distress. 4 Rand. 334. In Gorton v. Falkner, Mr. J.
Ashurst considers the foundation of the principle that the goods of the stranger may
be taken, to be, that the landlord is supposed to give credit to the visible stock on
the premises, and he ought, therefore, to have recourse to every thing he finds there.
But the Chief Justice, in Brown v. Sims, 17 Serg. & R. 138, was of opinion, that the
right of distraining a stranger's goods on the premises, rested on no principle of reason
or justice, and he thought that the constantly growing exceptions to that part of the
law of distress would, in the end, eat out the rule itself. So, again, in Riddle v. Wel-
den, 5 Wharton, 1, the Ch. J. of Pennsylvania looked very unfavorably upon the
extent of the English law of distress; and it was adjudged in that case, that the effects
of a lodger and boarder were exempt from distress for rent due from the keeper of
the boarding house, and it was considered that the whole law of special exemptions
rested on the principle of public convenience. In New Jersey, by statute, the goods
on the premises, not belonging to the tenant, are exempted from distress for rent due
from the tenant. New Jersey Revised Laws, 201, sec. 8; Elmer's Dig. 135; R. S.
New Jersey, 1847. This is also the case in Illinois. Revised Laws of Illinois, 1833.
In Ohio, the writ of replevin lies for goods and chattels wrongfully detained; but I
do not perceive, in the "enacted and revised " laws of Ohio, of 1831, any allusion
specially to distress for rent. The statute law of Missouri allows the writ of replevin,
in the case of goods wrongfully taken or wrongfully detained, but in no other case,
and it is silent as to the remedy by distress for rent. It gives remedy by action for
the recovery of rent. Revised Statutes of Missouri, 376. The Kentucky statute of
1811, on this subject, gives the landlord a right to distrain the goods of his tenant or
subtenant only, and thus exempts from the distress warrant the goods of all other per-
sons, even those bona fide purchased of the tenant, and still remaining on the premises.
And this power of distress for rent does not extend to the interest of a mortgagor, or
[ 635 ]
* 477
[PART VI.
OF REAL PROPERTY.
477 of the common law. (e) But this inconvenient *priv-
ilege is subject to many exceptions. Articles that may be
temporarily placed upon the land by way of trade, and belonging
to third persons, (a) are exempted from distress, on the broad
principle of public convenience, and for the benefit of commerce.
The goods of a guest, (b) or a horse at a public inn, or sent to a
livery stable to be taken care of, or the goods of a boarder at a
boarding house, or corn at a mill, or cloth at a tailor's shop, or
goods delivered to a person exercising a public trade, to be
wrought or managed in the way of his business, or a grazier's
cattle put upon the land for a night, on the way to market, or
goods deposited in a warehouse or with an auctioneer for sale,
or on storage in the way of trade, or goods of a principal in the
hands of a factor, are not distrainable for rent. (c) The exemp-
tion would seem to be general in those cases in which the course
of business necessarily puts the tenant in temporary possession of
the property of his customers. (d) With respect to the cattle
of a stranger found upon the land, there is this distinction, that
if they broke in they are distrainable immediately, but if the
fences were bad they are not distrainable, until the owner, after
his equity of redemption in goods mortgaged. Snyder v. Hitt, 2 Dana (Ky.), 204;
Craddock v. Riddlesbarger, ib. 205.
(e) Beadley on Distress, 106; Butler v. Morgan, 8 Watts & S. 53.
(a) Hoskins v. Paul, 4 Halst. 110.
(b) The property of boarders at taverns and boarding houses is not liable to dis-
tress for rent, although the property be in the possession and actual use of the tenant
by their permission. Stone v. Matthews, 7 Hill (N. Y.), 429.
(c) 2 Saund. 289, a, n. 7; Gisbourn v. Hurst, 1 Salk. 249; 3 Bl. Comm. 8; Gilman
v. Elton, 3 Brod. & B. 75; Co. Litt. 47, a; Thompson v. Mashiter, 1 Bing. 183; Mat-
thias v. Mesnard, 2 Carr. & P. 353; Brown v. Sims, 17 Serg. & R. 138; Youngblood
v. Lowry, 2 M'Cord, 39; Adams v. Grane, 1 Cromp. & M. 380; Riddle v. Welden, 5
Wharton, 1; Connah v. Hale, 23 Wend. 462; [Brown v. Arundell, 20 L. J. N. 8.
C. P. 30; Williams v. Holmes, 22 id. Ex. 283; Cadwalader v. Tindall, 20 Penn. St.
422; Briggs v. Large, 30 id. 287; Allen v. Agnew, 4 Zabr. 443; Marshall v. Vul-
tee, 1 E. D. Smith (N. Y.), 294;] Owen v. Boyle, 22 Me. 47. This last case related
to goods stored in a warehouse for reshipme it, and was decided, after great discussion,
by a majority of the court, not to be distrainable. If a stranger's goods be on the
demised premises without his fault, and he endeavors to reclaim them with due dili-
gence, and without any voluntary delay, they are not in that case and in that plight
distrainable for rent. So, the purchaser of goods at a sheriff's sale must remove them
in a reasonable time (and which is very short), or they will be liable to distress for
rent. Gilbert v. Moody, 17 Wend. 354.
(d) This was a principle declared by the Ch. J. of Pennsylvania, in Brown v. Sims,
17 Serg. & R. 138, and Riddle v. Welden, 5 Wharton, 1, and by Mr. Justice Cowen,
in Connah v. Hale, 23 Wend. 472–477.
[ 636 ]
LECT. LII.]
* 478
OF REAL PROPERTY.
notice, has neglected to take them away. (e) Corn and grass,
whether growing or cut, are seizable by way of distress, and those
articles and caɩtle may be secured or impounded upon the prem-
ises and there sold. (f) The distress must be reasonable,
and it cannot * be made in a public highway, or removed *478
out of the county. (a) The highway, in particular, ought
to be secure to the tenant for the intercourse of commerce, and
the preservation of peace and good order.
Nor can beasts of the plough, sheep, or implements of a man's
trade, be taken for rent, so long as other property can be found;
but they may be distrained if not in actual use at the time, and
there be no other sufficient distress on the premises. (b) In the
case of Simpson v. Hartopp,(c) the question was, whether a
stocking-frame, in the actual use of a weaver at the time, was
distrainable for rent; and after two distinct arguments, at dif-
ferent terms, it was adjudged that it was not. Lord Ch. J.
Willes took an accurate and elaborate view of the law on the
subject; and it was stated that there were several sorts of things
not distrainable at common law. 1. Things annexed to the free-
hold, such, for instance, as furnaces, millstones, and chimney-
pieces. 2. Things delivered to a person exercising a public trade,
to be worked up or managed in the way of his trade, as a horse at
a smith's shop, material sent to a weaver, a horse brought to an
inn; though with respect to a carriage at a livery stable, it has
(e) In South Carolina, estrays, though levant et couchant, are not distrainable for
rent; but the cattle of third persons, put on the premises with the consent of the
owners, are liable to distress. Reeves v. McKenzie, 1 Bailey, 497.
(f) Corn, growing, and sold on fi. fa., and left on the land to be reaped, is not dis-
trainable for rent accruing after seizure on the execution. Wright v. Dewes, 3 Nev. &
M. 790; Peacock v. Purvis, 2 Brod. & B. 362, s. p.
(a) By the New York Revised Statutes, ii. 501, sec. 5, 6, the distress cannot be
driven out of the town, except to a pound within three miles' distance, and within the
same county; and all beasts and chattels taken at one time must be kept, as near as
may be, in the same place. Nor can goods distrained be removed, if tender of the
rent be made before they are impounded or removed. Vertue v. Beasley, 2 Moody &
M. 21. If sufficient distress be made, and afterwards abandoned without any reason-
able excuse, a second distress for the same rent is illegal. Dawson v. Cropp, C. B.
1845. [1 C. B. 961. See Owens v. Wynne, 4 E. & B. 579.]
(b) Gorton v. Falkner, 4 T. R. 565; Fenton v. Logan, 9 Bing. 676; 2 Inst. 132,
133; New York Revised Statutes, ii. 502, sec. 13. In Louisiana, the landlord has a
privilege, by way of pledge, on the tools of a tradesman found on the premises, for
the payment of rent. Parker v. Starkweather, 19 Martin (La.), 337.
(c) Willes, 512.
[637]
479
[PART VL
OF REAL PROPERTY.
since been determined, (d) that it was not privileged from dis-
tress for rent by the lessor of the stable. 3. Cocks or sheaves of
corn. (e) 4. Beasts of the plough and instruments of husbandry.
*
5. Instruments of a man's trade. These two last sorts were
*479 only exempted from distress sub modo; that is, upon the
supposition that there was other sufficient distress. The
court, in that case, held, that the stocking-frame was privileged
from distress while the party was actually using it, even though
there was no other distress on the premises. If it had not been in
actual use, it might have been distrained; and if things in actual
occupancy could be distrained, it would, as Lord Kenyon ob-
served, (a) perpetually lead to a breach of the peace. The case
of Webb v. Bell (b) seems to have laid down a contrary doctrine to
a certain extent; for it was there held, that two horses, and the
harness fastened to a cart laden with corn, might be distrained
for rent. But Lord Ch. J. Willes doubted the law of that case;
and even in the case itself a doubt is suggested, whether, if a man
had been upon the cart, the whole team would not have been
privileged for the time. (c) In Massachusetts, under their law
of attachment upon mesne process, which is analogous to the com-
mon law doctrine of distress for rent, it has been held, that a
stage coach at a tavern, in preparation, and nearly ready to depart,
might be attached; and the court inclined to think, that stage
(d) Francis v. Wyatt, 3 Burr. 1498. This case was questioned as to the accuracy
of the report, by Mr. J. Patteson, in Brown v. Shevil, 4 Nev. & M. 277, where it was
held, that all goods sent to a tradesman to be wrought upon in the trade, were, while
in his custody, protected from distress; and that the rule applied to the case of a
beast sent to a butcher to be slaughtered for the sender. [See Kerby v. Harding, 20
L. J. N. 8. Ex. 163.]
(e) Shocks and sheaves of corn are distrainable in England by statute; but as there
is no such statute in Indiana, the common law rule prevails. Given v. Blann, 3
Blackf. 64.
(a) Storey v. Robinson, 6 T. R. 138; Fenton v. Logan, 9 Bing. 676; Field v. Adames,
12 Ad. & El. 649, s. p.
(b) 1 Sid. 440.
(c) The sheriff, on execution, may seize a horse, though the owner is riding him at
the time, which is not allowed in the case of a distress. State v. Dilliard, 3 Ired. (N. C.)
102. In Muspratt v. Gregory, 1 M. & W. 634, the question as to articles privileged
from distress was discussed with great learning and refinement, and it was held, that
the boat of a manufacturer, placed for receiving and carrying away salt on a canal,
was not privileged, inasmuch as the salt to be conveyed was not privileged on the
ground of the benefit of trade, or within any of the five rules of exemption laid down
by Ch. J. Willes.
[638]
LECT. LII.]
* 479
OF REAL PROPERTY.
coaches, steamboats, and vessels in actual use, might be attached,
though the decision did not go to that broad extent. (d)
(d) Potter v. Hall, 3 Pick. 368. The New York Revised Statutes, ii. 501, 502,
sec. 10, ib. 367, sec. 22, specially exempt spinning wheels, weaving looms, and stoves,
kept for use in a dwelling house, books not exceeding $50 in value, and kept and
used as part of the family library, a pew occupied by the family in a place of public
worship, sheep to the number of ten, with their fleeces, and the cloth manufactured
from them, one cow, two swine, and a few necessary articles of provisions and fur-
niture, as well as wearing apparel and bedding, and owned by a householder, and the
necessary tools of a mechanic to the value of $25, from distress for rent, as well as
from execution. So, certain articles, as looms, spinning wheels, stoves, wool, flax,
&c., to 20 lbs. weight, loaned or furnished to indigent widows and females, are exempt
from distress and from execution. New York Statutes, April 15th, 1814, c. 141. The
exemption of personal property from distress for rent and sale, under execution, was
still further extended in New York in 1842. Laws of N. Y. sess. 65, c. 157. It
exempts necessary household furniture, and working tools, and team owned by any
householder, or having a family for which he provides, to the value not exceeding
$150, provided the exemption be not applied to a demand on execution for the pur-
chase money of such articles. In the case of Quackenbush v. Danks, 1 Denio, 128
it was adjudged that this exemption act of New York of property from distress for
rent and from execution, so far as it affected the remedy on past contracts, was void,
as impairing the obligation of contracts. So, when a man dies, leaving a widow and
minor children, there shall be a like exemption; and so any assignment, sale, or pledge
of property so exempted, the consideration for which was intoxicating liquors, is
declared to be void. But things annexed to the freehold for the purpose of trade or
manufacture, and not fixed into the wall of any building, so as to be essential to its
support, and grain, grass, and roots, whether growing or gathered and remaining on
the land, may be distrained. On the other hand, personal property deposited with,
or hired, or lent to the tenant with the consent of the landlord, cannot be distrained;
nor can the property of others, which accidentally strays on the premises, or is
deposited with the tavern keeper, or the keeper of a warehouse, in the usual course
of their business, or deposited with any person for the purpose of being repaired or
manufactured. Ib. ii. 502, secs. 10, 14. The property of boarders at taverns and
boarding houses is also exempt in New York from distress for rent. Laws of New
York, sess. 56, c. 200. The statute laws of the other states, no doubt, exempt from
attachment, execution, or distress, or other legal process, necessary articles, requisite
to keep families from suffering, including all necessary tools of a man's trade, or for
limited agricultural business. 5 Mass. 313; 4 Conn. 450; 2 Wharton, 26; Acts of
Georgia, December 22d, 1822 and 1834; Act of Maine, 1838, c. 307; Statutes of Ten-
nessee, cited in 1 Humph. 391, 392. The statute of Alabama, in 1832, is exceedingly
liberal on this point. It exempts from all legal process "two cows and calves, 500
lbs. of meat, 100 bushels of corn, all books, a pair of work oxen, all tools or implements
of trade, 20 head of hogs," &c. The statute law of Kentucky, of 1828, exempts from
execution against a housekeeper with a family, one work beast, and no more of that
kind of property; and the statute of Michigan (1839) exempts from execution private
libraries, not exceeding in value, in the whole, $100. The statute law of Georgia, of
December 11th, 1841, exempts from execution founded on contracts in favor of heads
of families, twenty acres of land, and an additional five acres for each child of defendant
under fifteen years of age, provided the land derives its chief value from its adaptation
to agricultural purposes. If the defendant owns more than twenty acres, he is to
[639]
* 480
[PART VI.
OF REAL PROPERTY.
*480
* After the distress has been duly made, if the goods be
not replevied within five days after notice, the statute of
New York has provided, that the goods shall be forthwith ap-
praised, and sold at public vendue, under the superintendence of
a sheriff or constable, towards satisfaction of rent. (a) And this
law of distress is liable to so much abuse on the part of the land-
lord, and tenants are so often driven to desperate expedients to
elude the promptitude and rapidity of the recovery, that the law
has been obliged to hold out the penalty of double damages against
the one, if he distrains when no rent is due, and of treble damages
against the other, if he unlawfully rescues the goods distrained. (b)
If the tenant holds over, the possession may be recovered, in New
York, by the landlord, under a new and summary course of pro-
ceeding. (c) The proceeding applies to tenants for years, and
from year to year, or for part of a year, or at will, or at sufferance,
and to the assigns, under tenants or legal representatives of such
tenant; and it applies to holding over after the expiration of the
term without permission, or after default in the payment of rent
pursuant to contract. This provision was, however, qualified sub-
sequently by statute, in cases where the unexpired term of the
procure twenty acres to be laid off, so as to include the dwelling house and improve-
ments on the tract, not exceeding in value $1200. The exemption is further extended
to one horse and ten head of hogs, &c. By the constitution of Wisconsin, adopted in ·
1846, 40 acres of land, to be selected by the husband, or the homestead of a family
not in any city or village, and not exceeding 40 acres; or city or village lots, being
the homestead of a family, and not exceeding in value $1000, are not to be subject to
sale on execution for debts subsequently contracted, though such exemption is not
to affect any mechanic's or laborer's lien, nor mortgages lawfully obtained, nor shall
such property be alienated by the husband without the wife's consent.
By the Roman law, the landlord's lien for his rent of a farm was confined to the
produce of the field. Neither cattle, nor implements of husbandry, nor furniture, were
included. But the rule varied in the case of houses rented, and the permanent mova-
bles within the house were liable to distress for rent. Dig. 20. 2. 7. 1.
(a) N. Y. Revised Statutes, ii. 504, secs. 24, 25, 26; and within ten days after the
sale, the officer must file; in the office of the town-clerk, the original warrant of
distress, and the original affidavit of the landlord or his agent. Ib. 501, sec. 9.
(b) N. Y. Revised Statutes, ii. 504, secs. 23, 27. Executors and administrators
have, as such, the usual remedy by distress for nonpayment of rent. Ib. i. 747.
(c) Ib. ii. 512, sec. 28. In Connecticut, summary process to obtain possession is
also given in favor of the owner, when the lessee holds over. Revised Statutes of
Connecticut, 1821, p. 307. There is probably a summary remedy to obtain possession
as against a lessee, who ought to quit, given by statute in the states generally. The
statute of 1 and 2 Vict. c. 74, also gives a summary remedy where the tenant holds
over, where there is no rent, or the rent does not exceed £20 a year.
[640]
LECT. LII.]
* 481
OF REAL PROPERTY.
lease exceeds five years at the time of issuing the warrant; (d)
and it gives the tenant, or his representatives, or his judgment
creditor, or mortgagee, one year after possession recovered by
the landlord, to redeem. But in the case of a tenancy
*at will, or by sufferance, one month's previous notice in *481
writing to the tenant to remove must have been given;
and in case the proceeding be for nonpayment of rent, there
must have been a previous demand for the rent, or three days'
notice in writing, to pay or deliver the possession. (a) This sum-
mary remedy for nonpayment of rent applies also where the
tenant has been discharged under any insolvent act, as to his
debts or person, or after the estate has been sold under an execu-
tion against such person. (b) But it does not apply, when it
shall appear that satisfaction for the rent might have been
obtained by distress; and the whole provision is general, and
applies to every part of the estate. At common law, distress
could only be made on the land out of which the rent issues; (c)
but now, by statute, if the tenant carries away his goods, before
or after the rent becomes due, leaving the rent unpaid, the goods
of such tenant are not only liable to be seized wherever found,
at any time within thirty days after the rent becomes due, though
the removal may have been at any time within six months pre-
ceding, but the tenant forfeits double the value of the goods
if the removal was fraudulent. (d) And in order to give
(d) Laws of N. Y., April 12, 1842, c. 240.
(a) N. Y. Revised Statutes, i. 745, secs. 7, 8, 9, ii. 512, sec. 28. A mortgagor,
after forfeiture, is not that kind of tenant who can be dispossessed in this summary
way. Roach v. Cosine, 9 Wend. 227.
(b) N. Y. Revised Statutes, ii. 512, sec. 28. In Pennsylvania, under their statutes,
a summary remedy for recovery of possession is given to the landlord, when the
tenant removes without leaving goods sufficient to pay three months' rent, and the
tenant refuses to give security to pay it. Freytag v. Anderson, 1 Ashmead, 98; Black
v. Alberson, ib. 127. But this remedy does not deprive the landlord of his action for
the rent, though he may have repossessed himself of the premises. Rubicum v. Wil-
liams, ib. 230.
(c) This doctrine was enforced with great strictness in the case of Buszard v. Capel
(8 B. & C. 141; 6 Bing. 150, s. c. on error), where it was decided, that a barge
attached to a wharf by a rope could not be distrained for rent by the lessor of the
wharf, though the land on which the wharf stood was demised; and the use of the land
in the river Thames opposite the wharf, between high and low water mark, was
demised as appurtenant to the wharf, but not the land itself over which the barge floated
when it was distrained. See also Winslow v. Henry, 5 Hill (N. Y.), 481.
(d) N. Y. Revised Statutes, ii. 502. sec. 15; 503, secs. 16, 17. Reynolds v. Shuler,
5 Cowen, 323. The statute of New York goes further than the English statute of 11
VOL. III.
41
[641]
* 482
[PART VI.
OF REAL PROPERTY.
*482 further and effectual * security to the rent of the landlord,
where the rent is certain, (a) the statute of 8 Anne, c. 14,
declared (and that provision has been very generally reenacted in
this country), that no goods of a tenant, or of any other person
being on the premises, and liable to distress, can be taken on an
execution at the instance of a creditor, until arrears of rent due at
the time, and not exceeding one year, be previously deducted. (b)
The sheriff must have notice (and either written or parol is suffi-
cient) of the landlord's claim, otherwise he is not bound to know
who the landlord is, or what rent is in arrear. (c) The one year's
rent to the landlord, in case of execution against the personal
property of the tenant, refers to the last year's rent; (d) and by
the Revised Statutes of New York, if the tenant denies that rent
is due as claimed, he may tender a bond with sureties to the
officer to pay all rent due, not exceeding one year's rent. The
bond is to be executed to the landlord, and delivered to him, and
George II., or the statute of Pennsylvania of 1772, for by them the goods must have
been removed after the rent was due, to authorize the landlord to distrain them.
[Dibble v. Bowater, 22 L. J. N. s. Q. B. 396.] Grace v. Shively, 12 Serg. & R.
217. The Pennsylvania statutes of 1772 and of 1825 (the last being a supplement to
the other) require the removal to be fraudulent. Purfel v. Sands, 1 Ashm. 120. The
law in Louisiana goes beyond the statute in New York, for if the tenant removes his
goods from the premises, and abandons them, he becomes liable at once for the rent
of the whole term due and to become due. The tenant is considered as withholding
from the landlord the pledge he had for the rent, but execution only goes for the rent
actually payable, and so toties quoties monthly during the period of the term. The
doctrine was taken from the Roman law, and the equity of it recommended it strongly
to the Louisiana courts. Christy v. Casanave, 2 Martin (N. s.), 451; Reynolds v.
Swain, 13 La. 193. In Kentucky, where the tenant is about to remove his effects,
attachment for rent lies before it is due, if the rent be payable in money. Poer v.
Peebles, 1 B. Mon. 1.
(a) Risley v. Ryle, 11 M. & W. 16.
(b) N. Y. Revised Statutes, i. 746, sec. 12-17; Russell v. Doty, 4 Cowen, 576;
Statutes of Virginia, Kentucky, &c.; 2 Dana (Ky.), 208; Purdon's Dig. Penn. 378;
6 Rob. (La.) 385. R. S. N. Jersey, 1847, tit. 4, c. 7, has the English statutes and
remedies on the subject of landlords and tenants condensed. Indeed, the statute code
of New Jersey had adhered closely to the rules of the common law and of the English
remedial statutes, and fortunately bears but few marks of the modern presumptuous
spirit of innovation.
Though goods be seized by the sheriff under attachment against an absconding
debtor, it does not detract from the landlord's right of distress. Acker v. Witherell,
4 Hill (N. Y.), 112.
(c) Smith v. Russell, 3 Taunt. 400; Alexander v. Mahon, 11 Johns. 185; N. Y.
Revised Statutes, i. 746, secs. 12, 13; Waring v. Dewberry, Str. 97; Burket v. Boude,
8 Dana (Ky.), 213; Van Rensselaer v. Quackenboss, 17 Wend. 34.
(d) Bradby on Distress, 118.
[ 642 ]
LECT. LII.]
483
OF REAL PROPERTY.
for his use, by the officer, and it is to be received as a substitute
for his lien on the execution. (e)
This power of the landlord does not extend to the seizure of
goods, as a distress for rent, when the goods have been sold
bona fide, and for a valuable consideration, either by the tenant
himself, or by execution, before the seizure was made. (ƒ)
But a mortgage of the goods is said not to be a sale *483
within the provision, so as to protect them from distress. (a)
And if the interest of the tenant in the term has ceased, and the
tenancy ended, and the tenant, with his goods, removed from the
premises, a distress for rent could not formerly be made, though
it be within thirty days from the termination of the tenancy. (b)
The remedy by distress, according to the common law, assumed
the tenancy to continue, and ceased with it; (c) but by a provision
in the statute of 8 Anne, (and which has been adopted in this
country,) (d) the remedy by distress is extended to six months.
after the termination of the tenant's lease, whether the lease be
for life, for years, or at will. It was made necessary, under the
statute, that the landlord's title and the tenant's possession should
equally have continued; but by the New York Revised Statutes,
it is declared generally that the distress may be made upon any
goods remaining or removed, in the same manner, within the
same time, and under the same provisions and restrictions, as if
the tenancy had not ended. (e) The distress may also be made,
(e) N. Y. Revised Statutes, i. 746, sec. 12-17. The process and forms of the
summary proceeding in New York, to oust the tenant wrongfully holding over, are
given in a note to the case of Nicholas v. Williams, 8 Cowen, 1. If the tenant for life
or years, or any other person coming in under or by collusion with such tenant, wilfully
holds after demand and one month's notice to quit, he is chargeable at the rate of
double the yearly value of the land, and the special damages and equity cannot afford
him any relief. N. Y. Revised Statutes, i. 745, sec. 11. Double rent is likewise given
if a tenant gives notice of his intention to quit, and does not remove pursuant to notice.
Ib. sec. 10.
(ƒ) N. Y. Revised Statutes, ii. 503, sec. 16; Neale v. Clautice, 7 Harr. & J. 372,
8. P.; Craddock v. Riddlesbarger, 2 Dana (Ky.), 209, 211.
(a) Reynolds v. Shuler, 5 Cowen, 323.
(b) Terboss v. Williams, 5 Cowen, 407. Goods of a mere undertenant, who removed
from the premises before any rent became due, are not liable to distress. It would be
otherwise if the goods belonged to an assignee of the original tenant. Acker v. With.
erell, 4 Hill (N. Y.), 112. [See Ragsdale v. Estis, 8 Rich. 429.]
(c) Co. Litt. 47, 1; Pennant's Case, 3 Co. 64; Stanfill v. Hickes, 1 Ld. Raym. 280.
(d) N. Y. Revised Statutes, ii. 500, sec. 1.
(e) N. Y. Revised Statutes, ii. 500, sec. 1; ib. 503, sec. 16. The remedy by
distress, if the goods be removed, is confined to thirty days after the removal, and if
[ 643 ]
483
[PART VI.
OF REAL PROPERTY.
under the above limitations, for all the arrears of rent arising
during the tenancy, though the rent of several years should
happen to be in arrear. (ƒ) And in Webber v. Shearman, (g)
remaining upon the demised premises, to six months from the determination of the
lease. Bukup v. Valentine, 19 Wend. 554. The New York statutes have likewise
given a summary remedy to the landlord, with the aid of a magistrate, in cases where
the premises are deserted, and the rent left in the arrear. N. Y. Revised Statutes, ii.
512. A like summary remedy to obtain possession, where there are not goods on the
premises sufficient to pay the rent, is given by statute in Pennsylvania, in 1830.
(ƒ) Braithwaite v. Cooksey, 1 H. Bl. 465; Ex parte Grove, 1 Atk. 104; Wright
v. Williams, 5 Cowen, 501; Blake v. De Liesseline, 4 M'Cord, 496; Sherwood v.
Phillips, 13 Wend. 479. The English real property commissioners, in their report in
1829, proposed that no person should bring any action, or distrain for any arrears of
rent, after six years from the time when the same became due. This provision was
incorporated into the statute of 3 and 4 William IV. c. 27, but it does not apply to
actions of debt for rent upon any indenture of demise: they may be brought in such cases
within twenty years, or when there is a written admission that the rent is due. It was
held, in St. Mary's Church v. Miles, 1 Wharton, 229, that mere lapse of time, without
demand of payment, was no evidence by presumption that the ground rent (which the
case says is favored in law), founded on deed, has been released or extinguished,
though it may raise a presumption that the arrears have been paid.
There is a variety of opinion in the books as to the recovery of interest upon rent
in arrear. In covenant for rent payable in money, interest has been allowed. Clark
v. Barlow, 4 Johns. 183; Obermyer v. Nichols, 6 Binney, 159; 4 M'Cord, 59, s. P.
[Livingston v. Miller, 11 N. Y. 80; Burnham v. Best, 10 B. Mon. 227.] So,
in debt for rent, Dennison v. Lee, 6 Gill & J. 383. On the contrary, in Cooke v.
Wise, 3 Hen. & Munf. 463-501, interest was held not to be recoverable by way of
damages in debt for rent, for the party had his remedy by distress. Not recoverable
in suit in Louisiana, but from the judicial demand. Perret v. Dupre, 19 La. 341. But
all the cases agree that, under the remedy by distress, the rent only, and not interest
by way of damages, is recoverable. Braithwaite v. Cooksey, 1 H. Bl. 465; Lansing
v. Rattoone, 6 Johns. 43; Dennison v. Lee, 6 Gill & J. 383; Sherry v. Preston, 2
Chitty, 245; Vechte v. Brownell, 8 Paige, 212. All the statute provisions relative to
the remedy by distress assume this principle. It is also adjudged that the remedy by
distress exists only in cases where the rent is, by the agreement of the parties, made
certain, either in money or services, or can be reduced to a certainty. Valentine v.
Jackson, 9 Wend. 302. The N. Y. Revised Statutes, i. 747, sec. 18, gives the remedy
by distress, when any "certain services or certain rent," reserved out of land, is due.
They allow the owner of a wharf in the city of New York to distrain for wharfage any
goods and chattels on board of any vessel which has used the wharf, though the vessel
had removed from the wharf to another part of the city. See New York Revised
Statutes (ed. 1813), ii. sec. 212, 217.
Whenever goods are wrongfully distrained, the owner may recover them by an
action of replevin. This action of replevin lies also in other cases, where goods have
been tortiously taken or detained. Pangburn v. Patridge, 7 Johns. 140. See also 6
Binney, 2; 16 Serg. & R. 300; Baker v. Fales, 16 Mass. 147; Pease v. Simpson, 3
Fairf. 261; Seaver v. Dingley, 4 Greenl. 306; 12 Wend. 32; 14 Johns. 84; 15 id. 402;
19 id. 81; 20 id. 467; 1 Wend. 109, to the same point. In Seaman v. Baker & Mc-
(g) 6 Hill (N. Y.), 20.
[644]
LECT. LII.]
* 484
OF REAL PROPERTY.
it was held, that if the tenant remain in the occupation of the
premises for several successive years, under distinct demises from
year to year, from the same landlord, the whole period is to be
ręgarded as one term for the purpose of continuing the right of
distress.
*But the object of this work will not permit me to * 484
descend into greater detail, and I am obliged to be con-
fined to a general view of the law on the subject of rent, and the
remedy to recover it. The contract for rent, and the remedy, are
Whister, in the Supreme Court of Nova Scotia, in July, 1845, replevin was sustained
after a learned discussion, in the case of trespass upon land for stones tortiously taken
from a quarry and worked into grindstones. It was formerly the understanding and
practice in the English courts and books, that replevin was the remedy applied only
to a wrongful distress for rent, but it has lately been considered as applicable to any
wrongful detention of chattels. Dore v. Wilkinson, 2 Stark. 288; 1 Chitty Gen. Pr.
811. [See Mennie v. Blake, 6 El. & Bl. 842; Mellor v. Leather, 1 El. & Bl. 619.] This
is now the prevalent American doctrine. Baron Parke said, in George v. Chambers,
11 M. & W. 149, and the other judges agreed, that replevin was a remedy at common
law in all cases where goods are improperly taken, though not in a case of goods taken
in execution under a court of regular jurisdiction, and only where it has no juris-
diction. Revised Code of Indiana, ed. 1838, p. 476; 2 Blackf. 174, 176, note 3; Stat-
ute of Ohio, 1831. The N. Y. Revised Statutes, ii. 522, have also granted the writ of
replevin whenever goods have been wrongfully taken, or are wrongfully detained.
But the statute provides that replevin shall not lie for goods taken by warrant for any
tax, assessment, or fine, nor for goods seized on execution or attachment, unless they
be goods exempted by law from such process, nor unless the party hath a right at the
time to reduce the goods into his possession.
In Indiana, by statute, 1831, replevin lies for goods unlawfully detained, though
they may have been lawfully taken. 2 Blackf. 176, note 3; 418, note. So, the
writ lies in Michigan, Illinois, Missouri, Delaware, and Arkansas, for goods wrong-
fully taken or detained. Territorial Act of Michigan, April 4, 1833; Revised Laws
of Illinois, ed. 1833, p. 508; Skinner v. Stouse, 4 Mo. 93; Revised Statutes of Arkan-
sas, 659; 3 Harr. (Del.) 113. The decisions in Massachusetts and Maine, that replevin
will lie for goods unlawfully detained, though not preceded by a tortious taking, were
founded upon the statutes of 1789 and 1821. In New Jersey, the statute regulating
the action of replevin, lies for goods taken and wrongfully detained, and it is a close
adoption of the English statute law on the subject. Elmer's Dig. 466. When it is
said in the books that replevin will not lie for goods taken in execution, the rule is to
be taken to be limited to cases in which the writ of replevin is sued out by the defend-
ant in the execution. The taking of the goods of a stranger is a trespass, and replevin
lies, as the cases above cited show, when goods are tortiously taken, and therefore
goods taken in execution may be replevied by a stranger to it. Winnard v. Foster, 2
Lutw. 1191; Rooke's Case, 5 Co. 99; Platt, J., in Clark v. Skinner, 20 Johns. 467 ;
Dunham v. Wyckoff, 3 Wend. 280; Louisville & P. Company v. Holborn, 2 Blackf.
267; Brewer v. Curtis, 3 Fairf. 51; American Jurist, n. 23, art. 4, where this point is
elaborately and ably discussed. In Virginia, by statute, in 1823, the writ of replevin
is confined to the cases of distress for rent. 1 Rob. Pr. 408. This is also the case in
Mississippi. Wheelock v. Cozzens, 6 Howard (Miss.), 279.
[ 645]
* 485
[PART VI.
OF REAL PROPERTY.
in constant use and application; and in the cities and large towns
there are few branches of the law that affect more sensibly the
interests of every class of the people. (a) The law may be
deemed rather prompt and strict with respect to the interests of
the landlord, but I am inclined to think it is a necessary provision,
and one dictated by sound policy. It is best for the tenant that
he should feel the constant necessity of early and punctual per-
formance of his contract. It stimulates to industry, economy,
temperance, and wakeful vigilance; and it would tend to
*485 check the growth and prosperity * of our cities, if the law
did not afford the landlords a speedy and effectual security
for their rents, against the negligence, extravagance, and frauds
of tenants. It is that security which encourages moneyed men
to employ their capital in useful and elegant improvements. If
they were driven in every case to the slow process of a suit at
law for their rent, it would lead to vexatious and countless
lawsuits, and be, in many respects, detrimental to the public
welfare.
(a) The modern regulations on the subject of distress for rent are founded on the
statutes of 2 W. & M. c. 5; 8 Anne, c. 14; 4 Geo. II. c. 28; 11 Geo. II. c. 19; and
those statutes have been reënacted, with some improvements, in New York, and doubt-
less form the basis of our American law on the subject of distress for rent, in all those
states where that remedy prevails. The statute of 11 Geo. II. c. 19, seems to have
been, for instance, very strictly adopted and followed in Pennsylvania and Maryland.
12 Serg. & R. 218; 7 Harr. & J. 372, 373.
[646]
;
LECT. LIK.]
* 488
OF REAL PROPERTY.
LECTURE LIII.
OF THE HISTORY OF THE LAW OF TENURE.
TENURE is inseparable from the idea of property in land, accord-
ing to the theory of the English law. All the land in England is
held mediately or immediately of the king. There are no lands to
which the term tenure does not strictly apply, nor any proprietors
of land, except the king, who are not legally tenants. To express
the highest possible interest that a subject can have in land, the
English law uses the terms fee simple, or a tenancy in fee, and
supposes that some other person retains the absolute and ultimate
right. The king is, by fiction of law, the great lord paramount,
and supreme proprietor of all the lands in the kingdom, and for
which he is not bound by services to any superior. Prædium
domini regis est directum dominium, cujus nullus author est nisi
Deus. (a) So thoroughly does this notion of tenure pervade the
common law doctrine of real property, that the king cannot grant
land to which the reservation of tenure is not annexed, though he
should even declare, in express words, the grant be absque aliquo
inde reddendo. (b) Sir Henry Spelman (c) defines a feud to be
usus fructus rei immobilis sub conditione fidei; vel jus utendi
prædio alieno. The vassal took the profits, but the prop-
erty * of the soil remained in the lord, and the seignory of *488
the lord and the vassal's feud made, together, saith Spel-
man, that "absolute estate of inheritance, which the feudists, in
time of old, called allodium.'
""
This idea of tenure pervades, to a considerable degree, the law
of real property in this country. The title to land is essentially
(a) Co. Litt. 1, b, 65, a; 2 Bl. Comm. 105.
(b) Bro. tit. Tenures, 3, 52; 6 Co. 6, b; 9 Co. 123, a; Wright on Tenures, 137,
188.
(c) Treatise of Feuds and Tenures by Knight Service, c. 1; Glossarium Voce
Feodum.
[ 647 ]
* 489
[PART VI.
OF REAL PROPERTY.
allodial, and every tenant in fee simple has an absolute and perfect
title, yet, in technical language, his estate is called an estate in
fee simple, and the tenure free and common socage. I presume
this technical language is very generally interwoven with the
municipal jurisprudence of the several states, even though not a
vestige of feudal tenure may remain. In many of the states, there
were never any marks of feudal tenure, and in all of them the
ownership of land is essentially free and independent. By the
statute of New York, of the 20th February, 1787, (a) entitled An
Act concerning Tenures, the legislature reënacted the statute of
12 Car. II. c. 24, abolishing the military tenures, and turning all
sorts of tenures into free and common socage. Under that statute,
all estates of inheritance at common law were held by the tenure
of free and common socage; but all lands held under grant of the
people of the state (and which included, of course, all the lands in
the western and northern parts of the state which have been
granted and settled since the Revolution) were declared to be
allodial and not feudal, and to be owned in free and pure allo-
dium. (b) The New York Revised Statutes, which took effect on
the first day of January, 1830, went the entire length of abolish·
ing the existing theory of feudal tenures of every description,
with all their incidents, and declaring all lands within the state
to be allodial, and that the entire and absolute property was
vested in the owners, according to the nature of their respective
estates, subject only to the liability to escheat. (c) But
*489 though the distinction, *in this country, between feudal
and allodial estates, either does not exist at all, or has
become merely nominal, it will be impossible for the student to
understand clearly and accurately the doctrine of real propert
and the learning which illustrates it, without bestowing some
attention to the history and character of feudal tenures.
1. Of the Origin and Establishment of Feudal Tenures on the Con-
tinent of Europe. Some writers have supposed that the sources
of feuds were not confined to the northern Gothic nations
who overturned the western empire of the Romans; and that
(a) Laws of New York, sess. 10, c. 36.
(b) This is precisely the statute law of New Jersey. Elmer's Dig. 82.
(c) New York Revised Statutes, i. 718, sec. 3. In Maryland, it is declared that
lands became in effect allodial after the Revolution, subject to no tenure, nor to any of
the services incident thereto. Matthews v. Ward, 10 Gill & J. 443. [See 461, n. 1, (b) ]
[ 648 ]
LECT. LIII.]
* 490
OF REAL PROPERTY.
an image of feudal policy had been discovered in almost every
age and quarter of the globe. (a) But the resemblances
which have been suggested are too loosely stated, and are too
faint and remote to afford any solid ground for comparison.
The institutions which seem to have been most congenial to the
feudal system, were to be found in the Roman policy. The
relation of patron and client resembled, in some respects,
the * feudal lord and vassal; and Niebuhr, in his His- *490
tory of Rome, (a) declares that relation to have been
the feudal system in its noblest form. (b) The grants of forfeited
lands, by the Roman conquerors to their veteran soldiers, as a
recompense for past service, and more especially the grants of the
Emperor Alexander Severus, and in the time of Constantine, on
the condition of rendering future military service, afford the most
plausible argument for deducing the feudal customs and tenures
from the Roman law. There were, however, strong and essential
marks of difference between the two systems. The connection
between the patron and client was civil, and not military, and
(a) Voet, in his Digressio de Feudis, sec. 1, and Mr. Hargrave, in note 1 to lib. 2,
Co. Litt., have referred to the several authors by whom this opinion has been advanced,
and also by whom it has been refuted. I would further add, that the feudal policy is
declared, by Dr. Robertson, to have existed in its most rigid form among the ancient
Mexicans; and the government of the Burman empire is said to exhibit, at this day,
a faithful picture of Europe during the feudal ages. The same resemblances have
been traced among the Mahrattas, and the Rajpoots in Hindostan, and also in the
island of Ceylon. Robertson's History of America, b. 7, ii. 280; Col. Symes's
Embassy to Ava, ii. 356; Asiatic Annual Register for 1799, tit. Miscellaneous Tracts,
116; Col. Tod's Annals of Rajpootana, reviewed in Edinburgh Review, n. 103. Mr.
Prescott, in his History of the Conquest of Mexico, i. 26-28, recognizes several features
of the feudal system in the Aztec monarchy. The country was occupied by numerous
powerful chieftains, who lived like independent princes on their domains, and held
them from the monarch, under various tenures. Some of them were entailed on the
eldest male issue, and most of them were burdened with the obligation of military
service. Niebuhr says, the feudal system was obstinately preserved among the states
or cities of the Etruscans, prior to the dominion of the Romans. The governments
were rigid aristocracies, with kings elected for life, and the laboring classes were serfs.
History of Rome, i. 99, 101. Gibbon discovered in the governments of the ancient
Parthian and Persian empires, the essence of the feudal system, in grants, by the king,
to the nobles, of lands and houses, on condition of service in war. Gibbon's History,
i. 329, 343.
(a) Vol. i. 99.
(b) Mr. Spence, in his Equitable Jurisdiction, i. 28–49, considers the feudal relation
of lord and vassal much more congenial with the aristocratic principle that prevailed
in the relation of patron and client, and patron and freedman, in the Roman dominion,
than with the free condition of the ancient Germans. He has examined, with much
research and minute erudition, the usages and institutions of the Anglo-Saxons.
Part 1, b. 1, c. 1-15.
[649]
* 490
[PART VI.
OF REAL PROPERTY.
the Roman estates and military grants were stable, and of the
nature of allodial property. The leading points of difference
between the Roman and feudal jurisprudence, in relation to land,
have been abundantly shown, by the most able and the most
learned of the modern legal antiquaries. (c)
(c) Hargrave's note 1 to lib. 2, Co. Litt.; Butler's note 77 to lib. 3, Co. Litt.; Sul-
livan's Treatise on the Feudal Law, lect. 3. Mr. Spence, in his work entitled An
Inquiry into the Origin of the Laws and Political Institutions of Modern Europe,
London, 1826, pp. 5, 32, &c., has examined the Roman policy on this subject, and
studied the Roman laws, and particularly the Theodosian code, with the utmost atten-
tion. He has drawn from that copious source of legal antiquities a body of facts to
sustain and illustrate the theory, that the barbarians adopted in a great degree the
laws and institutions of the Romans, as they found them in the provinces which they
invaded and subdued. His conclusion would apply better to France than to any other
part of Europe. In Spain, it is said, that the early Spanish lawgivers disliked the
Roman laws, and drove them from their tribunals. The Visigoths prohibited the use
of them. See Institutes of the Civil Law of Spain, by Asso & Manuel, Pref. A his-
torian more learned, even in the antiquities of Spain, than probably either of those
Spanish doctors, admits that the Visigoths of Spain indulged their subjects at first
with the enjoyment of the Roman law, but at length they composed a code of civil
and criminal jurisprudence, which superseded those foreign institutions. Gibbon's
History of the Roman Empire, vi. 378. The Gothic King of Spain, Recesvinto, pro
hibited the use of the Roman law in the courts, and the Visigothic code (of which the
Fuero Juzgo was a Spanish translation) was the civil and criminal statute law of Spain
during the Gothic ages, and prior to the Partidas; and the civil part of that code con-
tained strong marks of the influence of the Roman law infused into it by the Spanish
clergy. See Edinburgh Review, xxxi. art. 5, on the Gothic laws of Spain, in which
the subject is handled with profound learning.
On the other hand, the Theodosian code, and the books of the jurisconsults author-
ized by that code, were the law of Gaul, when it was conquered by the Visigoths,
Burgundians, and Franks; and those laws continued to be almost universally observed
under the kings of the first race, and the Breviarium contributed to preserve the
knowledge and use of the Roman law among the West Goths. But eventually the
use of the Roman law was interdicted in the West Gothic empire. The Emperor
Charlemagne, in the year 788, caused the Theodosian code to be transcribed from the
abridgment of it in the edition of Alaric, King of the Visigoths; and that abridgment
of the code, which is sometimes called the Anian Breviary, or the Lex Romana of
the Visigoths, was the only one from which a knowledge of the civil law was gained
by the jurists of Gaul, prior to the recovery of the Pandects. Histoire du Droit Fran-
çais, par l'Abbé Fleury, c. 6, 11. The Breviarium Aniani, so called after Anian, the
first minister of Alaric, was published at the beginning of the sixth century, by order
of Alaric, and it was compiled essentially from the Theodosian code, and partly from
the codes of Gregorius and Hermogenes, and the writings of Roman jurisconsults; and
it was, in its turn, superseded by the more popular and vigorous doctrines of the feu-
dal system. Its poverty is incredible, says Savigny, when viewed in connection with
the rich materials from which it was formed. There is no doubt that villanage, or
the servitude of the glebe, existed in the Roman provinces before the German con-
quests. This appears from the contents of the Code de Agricolis, et Cencitis, et
Colonis. Code, lib. 2, tit. 47;. and Montesquieu has justly and sagaciously inferred,
[650]
LECT. LIII.]
* 192
OF REAL PROPERTY.
* The better and the prevailing opinion [is], that the *491
origin of the feudal system is essentially to be attributed to
the northern * Gothic conquerors of the Roman empire. It *492
was part of their military policy, and devised by them as
the most effectual means to secure their conquests. It was the
law of military occupation, and the great purpose of the tenure
was defence. The chieftain, as head or representative of his
nation, allotted portions of the conquered lands, in parcels, to
his principal followers, and they, in their turn, gave smaller par-
even from the laws of the Burgundians, that predial servitude existed in Gaul before
it was invaded by those barbarians. Esprit des Loix, liv. 30, c. 10. But this humble
service bore no resemblance to grants by military chiefs to their freeborn soldiers and
companions, on condition of rendering future military service. M. Savigny, in his
History of the Roman Law during the Middle Ages, vol. i. (translated from the Ger-
man by E. Cathcart,) contends, from a full examination of original documents, that
the Roman law was kept up after the German conquests, by the aid of Roman judges,
and that the former inhabitants in the provinces continued in the possession of their
personal freedom and property to a considerable degree. It was the policy of the
Teutonic conquerors to govern their Roman subjects by the Roman law. They pre-
served their separate manners and laws, and there arose a system of personal rights and
laws. The Roman and his German conqueror resided in the same city or place, each
under his own laws. It often happened, said Bishop Agobard, in his letter to Louis
le Débonnaire, that five men, each under a different law, might be found walking or
sitting together. At first, only two laws were admitted; the law of the victors, which
was properly a territorial law, and the law of the vanquished provincials, which was
personal. In process of time the laws of other German, races conquered by the
Franks were acknowledged along with the laws of the victor and of the vanquished
Romans. In the Burgundian collection of laws, it was declared, that Inter Romanos,
Romanis legibus præcipimus judicari. Ib. i. 100, 103. With the Burgundians, the Roman
lands were divided between the Burgundians and Romans. The former took half of
the house, and two thirds of the cultivated lands, and one third of the bondsmen.
The West Goths also deprived the Romans, by allotment or partition, of two thirds
of their lands. Ib. 279, 283. In Italy, the East Goths, under Odoacer, took one third
of the land. Ib. 315, 316. Mr. Finlay, in his interesting History of Greece under
the Romans, London, 1844, says, that the Ostrogoths, after the conquest of Italy,
allowed the Romans to retain two thirds of their landed estates, and all their movable
property. The government of Theodoric was impartial and wise, and Italy was still
a Roman land, and the Romans formed a large majority of the middling classes. The
senate of Rome, the municipal councils of the other cities, and the old courts of law,
and in short the civil laws and institutions, existed unchanged. Finlay's Hist. p. 291.
But the Lombards, who succeeded to the Greek dominion in Italy, took only one
third of the produce of the Roman estates, and the Romans were apportioned among
the Lombards as their hospites, or guests, and were chargeable with the above tribute.
M. Savigny insists, that the Roman civil institutions in the provincial cities were
generously allowed by the Burgundians, West Goths, Franks, and Lombards to be
retained by the vanquished. Ib. 387-434. In like manner, after the conquest of Lom-
bardy by Charlemagne, it was left to the inhabitants to choose whether they would
be judged by their own, the Roman, or the French law.
[651]
494
[PART VI.
OF REAL PROPERTY.
*
cels to their subtenants or vassals, and all were granted under
the same condition of fealty and military service. (a) The rudi-
ments of the feudal law have been supposed, by many modern
feudists, to have existed in the usages of the ancient Germans,
as they were studied and described by Cæsar and Taci-
*493 tus. (b) But there could not have been any thing more
among the ancient Germans than the manners and state of
property fitted and prepared for the introduction of the feudal
tenures. Land with them was not subject to individual owner-
ship, but belonged as common property to the community, and
portions of it were annually divided among the members of each
respective tribe, according to rank and dignity. (a) The German
nations beyond the Rhine and the Danube prescribed limits to the
march of the Roman legions; and while the latter successfully
established the government, arts, institutions, and laws of their
own country in Spain, Gaul, and Britain, the free and martial
Germans resented every such attempt, and preserved unimpaired
their native usages, fierce manners, and independent
* 494 genius. (b) *The traces of the feudal policy were first
distinctly perceived among the Franks, Burgundians, and
Lombards, after they had invaded the Roman provinces. They
(a) Craig's Jus Feudale, lib. 1, Dieg. 4, sec. 4, De Feudorum Origine et Progressu;
Wright on Tenures, 7.
(b) Sir Henry Spelman on Feuds and Tenures by Knight Service, c. 2; Glossa-
rium, voce Feodum; Grotius, de Jure Belli et Pacis, lib. 1, c. 3, sec. 23; Wright on
Tenures, c. 1, pp. 6, 7; Sullivan on Feudal Law, lec. 3; Dalrymple's Essay on Feudal
Property, c. 1. Hic contractus (scilicet feudalis) proprius est Germanicarum gentium,
neque usquam invenitur, nisi ubi Germani sedes posuerunt. This is the language of
Grotius, and that of Craig is to the same effect: Hæc sunt juris feudalis prima cuna-
bula, hæc feudorum infantia ab usu et consuetudine ferocissimarum gentium, quæ ab
Aquilone in Romanum orbem incurrerant, primum nata et introducta. Jus Feudale,
1, 4, 5. In a few passages of Cæsar and Tacitus, concerning the customs of the Ger-
mans, may be seen, says Dr. Sullivan, the old feudal law, in all its original parts, in
embryo.
(a) Cæsar, de Bel. Gal. b. 6; Tacitus, Mor. Ger. c. 5, 11, 26. [See iv. 441, n. 1.]
(b) Velleius Pater. b. 2, c. 117, 118, It was their custom, said the Germans to
Julius Cæsar, delivered down to them from their ancestors, to oppose, not to implore,
those who made war upon them. Cæsar, de Bel. Gal. 4, 6. The German tribes had
national institutions before their conquests, and they were societies of freemen, who
possessed, in their collective capacity, all powers, legislative and judicial. The nobles,
as to power, were merely freemen. The land was divided into districts, and the judi-
cial power was in all the freemen of the district, and the count presided at the pub-
lic meetings, and commanded the tribes in war. The other classes, distinct from the
freemen, were bondmen and slaves. Savigny's History of the Roman Law during
the Middle Ages, i. c. 4.
[652]
LECT. LIII.]
* 495
OF REAL PROPERTY.
generally permitted the Roman institutions to remain in the cities
and towns, but they claimed a proportion of the land and slaves
of the provincials, and brought their own laws and usages with
them. (a) The crude codes of the barbarians were reduced to
writing after they had settled in their new conquests, and they
supplanted, in a very considerable degree, the Roman laws. (b)
The conquered lands which were appropriated by the military
chiefs to their faithful followers, had the condition of future mil-
itary service annexed, and this was the origin of fiefs and feudal
tenures. The same class of persons who had been characterized
as volunteers or companions in Germany, became loyal vassals
under the feudal grants. (c)
These grants, which were first called benefices, were, in their
origin, for life, or perhaps only for a term of years. (d)
* The vassal had a right to use the land and take the profits, *495
(a) The barbarian conquerors of Gaul and Italy generously allowed every man to
elect by what law he would be governed. Esprit des Loix, b. 28, c. 2; Hallam on the
Middle Ages, i. 83. But Savigny insists, that the law by which every man was to be
governed, was determined by birth, and not by election or free choice, and he enters
into an elaborate and critical discussion on the point. History of the Roman Law,
i. 134-150.
(b) Esprit des Loix, b. 28, passim ; ib. b. 30, c. 6, 7, 9. Montesquieu has given a very
interesting account of the institutions and of the character of the laws of the northern
nations, which they introduced and established in France, Spain, and Italy, and the
struggle which those laws and usages maintained with the provincial laws of the
Romans. See also Spence's Inquiry, b. 3, c. 2, 3.
(c) Esprit des Loix, b. 3, c. 16; 2 Bl. Comm. 45, 46.
(d) Hallam on the Middle Ages, i. 89, insists, in opposition to most of the writers
on the feudal system, that these beneficiary grants were never precarious and at will.
He controverts on this point the position of Craig, Spelman, Du Cange, Montesquieu,
Mably, Robertson, and all the other feudists. It is worthy of notice, that Lord Ch.
B. Gilbert, in his Treatise on Tenures, 2, 8, considered feuds to have been originally
for life. Sir Francis Palgrave says, that the feudal benefice was never held for a
shorter term than the life of the grantee, and that the Teutonic nations took their
plan of the beneficiary or feudal tenure from the Roman beneficiary system, which
consisted in the assignment of a particular portion of land as the price of military
service. The Rise and Progress of the English Commonwealth, i. 495–501. The
uncertainty that pervades this subject seems to be the necessary result of the unfixed-
ness, disorder, and chaos into which every thing was thrown during the transition
state from the migratory and predatory life of barbarians to the settled life of cultiva-
tors. This is the view of the subject taken by M. Guizot, in his History of Civiliza-
tion in Europe; and he says that benefices for years, for life, and hereditary benefices,
existed together at the same time, and that even the same lands passed, in a few years,
through these different stages. Even the institutions of monarchy, of the feudal rela-
`tion of lord and vassal, and assemblies of freemen, existed at the same time, and were
continually (onfounded and continually changing.
[653]
* 495
[PART VI
OF REAL PROPERTY.
and he was bound to render in return such feudal duties and
services as belonged to a military tenure. The property of the
soil remained in the lord from whom the grant was received.
The right to the soil, and to the profits of the soil, were regarded
as separate and distinct rights. This distinction continued when
feuds became hereditary. The king or lord had the dominium
directum, and the vassal or feudatory, the dominium utile; and
there was a strong analogy between lands held by feudal tenure
and lands held in trust, for the trustee has the technical legal title,
but the cestui que trust reaps the profits. The leading principle
of feudal tenures, in the original and genuine character of feuds,
was the condition of rendering military service. (a) Prior to the
introduction of the feudal system, lands were allodial, and held
in free and absolute ownership, in like manner as personal prop-
erty was held. Allodial land was not suddenly, but very grad-
ually supplanted by the law of tenures, and some centuries elapsed
between the first rise of these feudal grants and their general
establishment. (b)
They were never so entirely introduced as to abolish all vestiges
of allodial estates. Considerable portions of land in continental
Europe continued allodial; and to this day, in some parts of it,
the courts presume lands to be allodial until they are shown to be
feudal, while, in other parts, they presume the lands to be feudal
until they are shown to be allodial. (c)
(a) The definition of a fief, according to Pothier, and which he took from Dumou-
lin, is an estate in land held under the charge of fealty, homage, and military service.
Traité des Fiefs, part 1, c. prelim. sec. 1, 3.
(b) Hallam, i. 97, 112, says, that five centuries elapsed before allodial estates had
given way, and feuds had attained to maturity; and he considers that the establish-
ment of feuds on the continent was essentially confined to the dominions of Charle-
magne, and that they had not great influence, either in the peninsula or among the
Baltic powers.
(c) Voet, in his Digressio de Feudis, sec. 4, Com. ad Pand. lib. 38, says, that if it
be uncertain whether an estate be feudal or allodial, the presumption is in favor of its
being allodial, as being the free and natural state of things. And in Germany allo-
dial estates are prevalent even to this day. Heinec. Elem. Jur. Germ. vi. 230, 231.
The feudal tenures and services existed in France down to the period of the late revo-
lution; but in those parts of France governed by le droit écrit, all lands were presumed
to be allodial until the contrary was shown; while in the pays coutumiers the rule was,
that there was no land without a lord, and those who pretended their lands were free,
were bound to prove it. Inst. au Droit Français, par Argou, i. 195. But now, in
France, the feudal law, with all its rights and incidents, is abolished, as being incom-
patible with freedom and social order. Toullier, Droit Civil Français, iii. 64; ib. vi.
[ 654 ]
LECT. LIII.]
* 497
OF REAL PROPERTY.
*The precise time when benefices became hereditary is *496
uncertain. They began to be hereditary in the age of
Charlemagne, who facilitated the conversion of allodial into feudal
estates. (a) The perpetuity of fiefs was at last established by a
general law, which allowed fiefs, in imitation of allodial estates, to
descend to the children of the possessor. (b) The perpetuity of
fiefs was established earlier in France than in Germany; but
throughout the continent, it appears, they had become hereditary,
and accompanied with the right of primogeniture and all the other
incidents peculiar to feudal governments, long before the
era of the Norman Conquest. (c) The right of primo- *497
geniture, and preference of males in the line of succession,
became maxims of inheritance, in pursuance of the original mil-
itary policy of the feudal system. It was the object of these rules.
to preserve the fee entire and undivided, and to have at all times
*
192. So, in the United Netherlands, feudality was abolished, and all fiefs declared
allodial, when the government was revolutionized by the French arms.
(a) Craig, Jus Feudale, lib. 1, Dieg. 4, sec. 10. The Abbé de Mably, in his Obser-
vations sur l'Hist. de France, b. 2, c. 5, note 3, says, that Louis le Débonnaire, the son
and successor of Charlemagne, first rendered fiefs hereditary in France; but a greater
authority says, that hereditary benefices existed under the first race of French kings,
or before Pepin, the father of Charlemagne. Hallam on the Middle Ages, i. 91.
(b) This was by a capitulary of Charles the Bald, A.D. 877. Esprit des Loix,
b. 31, c. 25.
(c) Craig, in his Jus Feudale, lib. 1, Dieg. 4, De Feudorum Origine et Progressu,
has given an interesting summary of the history of feuds. He traces them from their
infancy, when they were precarious, or at will, to their youth, when they were for life,
or descended to the sons only, between the year 650 and the ascension of Charlemagne,
in the year 800; and to their advancement towards maturity under the reign of the
Emperor Conrad II., when they descended to grandchildren and to brothers in the
case of paternal feuds; in feudo paterno, et non in feudo noviter acquisito. The last step,
in the advancing progress of feuds, was when they were clothed with the general
attributes of hereditary estates. See, also, Consuetudines Feudorum, b. 1, tit. 1, 8;
b. 2, tit. 11; Esprit des Loix, b. 31, c. 28, 29, 31, 32; Inst. au Droit Français, par
Argou, i. b. 2, c. 2, Des Fiefs; Hallam on the State of Europe during the Middle Ages,
i. 91, 96. The Book of Fiefs, under the title of Consuetudines Feudorum, is supposed
(Spelman's Glossary, Voce Feodum) to have been compiled by two Milanese lawyers,
A.D. 1170, from the law of fiefs in Lombardy; but Voet, in his Digressio de Feudis,
sec. 2, says, that it is uncertain who were the authors of the collection. This code of
feudal law is usually annexed to the Corpus Juris Civilis, and therefore conveniently
accessible to the American lawyer. It is the source from which modern lawyers and
historians have drawn much of their knowledge of the feudal jurisprudence of con-
tinental Europe. Mr. Butler says, it attained more authority in the courts of justice
than any other compilation, and was taught classically in most of the academies of
Italy and Germany. It has justly, according to Craig, the force and authority of law
by the consent of almost all nations; ex consensu pene omnium gentium.
[655]
* 498
[PART VI.
OF REAL PROPERTY.
a vassal competent, from his sex and age, to render the military
services which might be required. The practice of subinfeuda-
tions, or arrière fiefs, by the higher ranks of feudal vassals, grew
with the growth of tenures, and they were created on the same
condition of military service by the inferior vassals to their
immediate lords. The feudal governments gradually assumed the
appearance of combinations of military chieftains, in a regular
order of subordination, but loosely connected with each other, and
feebly controlled by the monarch, or federal head.
It would appear, at first view, to be very extraordinary, that
such a free and rational species of property as allodial, and
which was well calculated to meet the natural wants of
*498 *individuals, and the exigencies of society, should ever,
in any one instance, have been voluntarily laid aside, or
exchanged for a feudal tenure. As a general rule, the allodial
proprietor had the entire right and dominion. He held of no
superior to whom he owed homage, or fealty, or military service.
His estate was deemed subservient to the purposes of commerce.
It was alienable at the will of the owner. (a) It was a pledge
to the king for the good behavior of the subject, and was liable
to forfeiture for crimes against the state. It was a security to
individuals for the performance of private contracts, and might
be taken and sold for debt. It passed to all the children equally
(a) The term allodial is said to have been derived from al, which signifies integer,
and od, which signifies status, or possessio; so that al-od, or allodium, signified integra
possessio, or absolute dominion. This etymology of the word, Dr. Gilbert Stuart says,
was communicated to him by a learned Scotch judge. Stuart's View of Society in
Europe, 205. Whether this idea be well founded, or be merely ingenious (for Dr.
Robertson, in his View of Society, prefixed to his History of Charles V. note 8, quotes
a German Glossary, which makes allodium to be compounded of the German particle
an and lot, i.e. land obtained by lot), it at least corresponds with the character of allo-
dial estates. Mr. Crabb, in his History of the English Laws, p. 11, gives another
origin of allodium. He says it was derived from a, privative, and lode, or leude, a vassal,
that is, without vassalage. This he took from Spelman, who, in his Glossary, voce
Allodium, mentions the same derivation. Mr. Hallam says, that allodial lands are
commonly opposed to beneficiary or feudal, and in that sense the words continually
occur in ancient laws and documents. But it sometimes stands simply for an estate
of inheritance, and hereditary fiefs are frequently termed allodia. See his View of the
State of Europe during the Middle Ages, i. 80, a work which appears to be equally
admirable for vigor of mind, for profound research, for manly criticism, and for the
spirit of freedom. In the French law, Franc-aleu signifies allodial land, or an estate
entirely free, and not holden of any superior, and wholly exempt from all seignorial
rights and services. Inst. au Droit Français, par Argou, i. 194. Allodium est proprietas
quæ a nullo recognoscitur. Ferrier's Dict. tit. Franc-aleu.
[656]
LECT. LIII.]
• 500
OF REAL PROPERTY.
by inheritance. In these respects allodial estates were the
very reverse of lands held by a feudal * tenure. Land, *499
under that servitude, was locked up from commerce, and
from that control over it by the owner which is so necessary in the
intercourse and business of social life. But it appears to be well
ascertained, that the feudal policy was gradually adopted through-
out Europe, after the overthrow of the western empire, upon the
principle of self-preservation. The turbulent state of society,
consequent upon the violent fall of that empire, and the want of
regular government competent to preserve peace and maintain
order and justice, encouraged and recommended the feudal asso-
ciation. A feudal lord and his vassals, connected by the mutual
obligation of protection and service, acted in concert and with
efficacy. The strength and spirit of these private combinations
made amends for the weakness of the civil magistrate. A proud
and fierce feudal chief was sure to revenge any injury offered to
himself or any of his dependants, by the united force of this
martial combination. Much higher compositions were exacted,
even by law and in the courts of justice, for injuries to vassals,
than to allodial proprietors. (a) The latter were, in some meas-
ure, in the condition of aliens or outlaws, in the midst of society;
and the feudal tenants, united by regular subordination under a
powerful chieftain, had the same advantage over allodial propri-
etors, as has been justly observed by an eminent historian, (b)
which a disciplined army enjoys over a dispersed multitude; and
were enabled to commit, with impunity, all injuries upon their
defenceless neighbors. Allodial proprietors, being thus exposed
to violence without any adequate legal protection, were
forced to * fly for shelter within the enclosure of the feudal *500
association. They surrendered their lands to some power-
ful chief, paid him the reverential rights of homage and fealty,
received back their lands under the burdensome services of a
feudal tenure, and partook of the security of vassals, at the
expense of the dignity of freemen. Allodial estates became
extinguished in this way and from these causes, and the feudal
(a) Montesquieu, in his account of the changes of allodial into feudal estates, says,
it was the privilege of a vassal of the king, by the Salic and Ripuarian laws, that the
slayer was to pay 600 sous for killing a vassal, and 200 sous for killing a freeman or
allodial proprietor, whether Frank or barbarian, and only 100 sous for killing a Roman!
Esprit des Loix, b. 31, c. 8.
(b) Hume's History of England, Appendix, vol. ii.
VOL. III.
42
[ 657 ]
* 501
[PART VI.
OF REAL PROPERTY.
system gradually spread, and was extended over the principal
kingdoms of Europe. (a)
A state of anarchy, according to Mr. Hallam, was the cause,
rather than the effect, of the general establishment of feudal ten-
ures. The original policy of the system was generous and reason-
able, for it had in view public defence and private protection.
Very able and eloquent champions of the cause of civil liberty
have admitted, that the feudal system was introduced and cher-
ished by the spirit of freedom; and that it had a tendency, before
the original design of it was perverted and abused, to promote
good faith, to purify public morals, and to refine and elevate social
sympathies. (b)
But this same loyal association, which was so auspicious in its
beginnings, as in a great degree to destroy the value of allodial
property, degenerated, in process of time, and became
*501 *the parent of violence and anarchy, promoted private
wars, and led to a system of the most grievous oppression.
Except in England, it annihilated the popular liberties of every
nation in which it prevailed, and it has been the great effort of
modern times to check or subdue its claims, and recover the free
enjoyment and independence of allodial estates. (a)
2. Of the History of Feudal Tenures in England. England was
distinguished above every part of Europe for the universal estab-
lishment of the feudal tenures. There is no presumption or
(a) Esprit des Loix, b. 31, c. 8; Robertson's History of Charles V. vol. i. note 8,
annexed to his View of Society; Hallam's View of Society in the Middle Ages,
i. c. 2, 93, 94; Stuart's View of Society in Europe, b. 1, c., 2, sec. 3; Spence's
Inquiry, 346. This last writer shows, from the capitularies of Charlemagne, that in
his time there was scarcely a person in his widely extended empire, who was not the
vassal either of the monarch, or of some bishop, or count, or other powerful indi-
vidual.
(b) Dr. Stuart's View, b. 2, c. 1, sec. 1; Hallam, supra, i. 99, 178, 179. Sir Henry
Spelman, in his Treatise of Feuds and Tenures, c. 2, viewed the feudal law in the
same light. “It was," he observes, "carried by the Lombards, Saliques, Franks,
Saxons, and Goths into every kingdom, and conceived to be the most absolute law
for supporting the royal estate, preserving union, confirming peace, and suppressing
robbery, incendiaries, and rebellions." It became, he says, the law of nations in
Western Europe.
(a) The feudal system still exists in full force and destructive energy in Hungary,
where the entire surface of the soil is possessed by the nobles. They are, themselves,
exempt from taxation, and the peasants have no political rights, and are held under
rigorous feudal subjection. There is likewise a partial continuance of the feudal insti-
tutions in Bohemia, Moravia, and Silesia, and strongly and oppressively in Gallicia,
Turnbull's Austria, ii. c. 15.
[658]
LECT. LIII.]
*501
OF REAL PROPERTY.
admission in the English law of the existence of allodial lands.
They are all held by some feudal tenure. There were traces of
feudal grants, and of the relation of lord and vassal in the time
of the Anglo-Saxons; but the formal and regular establishment
of feudal tenures in their genuine character, and with all their
fruits and services, was in the reign of William the Conqueror. (b)
(b) The ordinances of William the Norman, establishing the feudal tenure of lands,
to be held jure hereditario in perpetuum, are quoted as authentic by the most learned of
the English lawyers (Wright on Tenures, 65–76; Bl. Comm. ii. 50); and they are
collected in Lambard's Archaionomia, 170; L. L. Conq. Wm. I. c. 52, 55. Those
laws purport to have been enacted, per commune concilium totius regni. Sir Francis
Palgrave, in his Rise and Progress of the English Commonwealth, ii. 88, gives the
original text, hitherto unpublished, of the statute or capitular of the laws and customs
granted by William the Conqueror to the English, and professing to be the same as
the laws of Edward the Confessor. It is a curious and interesting monument of the
written Anglo-Saxon law first diffused into the common law. It is devoted principally
to criminal jurisprudence, and relates specially to pecuniary fines, and the efficacy of
frank pledges. Vassals were bound to the soil and could not depart, nor, on the
other hand, could they be expelled by their lords. They were churls or villains, and
not slaves or serfs, and their rents and duties were fixed by custom. No Christian
could be sold to a foreign country, nor especially to infidels. No sales of any chattel,
to the value of four denarii, were good without four witnesses of the burgh or country
village. He granted peace and immunity to the holy church. Death was to be
inflicted for many crimes, but not for slight ones; non enim debet pro re parva deleri fac-
tura, quum ad imaginem suam Deus condidit et sanguinis sui pretio redemit; the force of
Christianity as well as of penal law was thus applied to the preservation of peace and
the security of persons and property. The first act of Saxon legislation was by
Ethelbert, King of Kent, and it was in the imperial style, as that the king decreed or
enacted with the advice of his council or witan. The dignified clergy, who were the
sole depositaries of learning and of rank, with the thanes or nobility, were members
of that council. Spence's Equitable Jurisdiction, i. 12, 13.
It has been a subject of great dispute, and one which has occasioned the most labo-
rious investigations, whether feudal tenures were in use among the Saxons. This is
to us a question of no moment, and it is nowhere any thing more than a point of spec-
ulative and historical curiosity; but even in that view it may command the attention
of the legal antiquarian. Though, in a general sense, military services and feuds
might have been known to the Anglo-Saxons, yet the weight of authority, even in
opposition to such names as Coke and Selden, would rather seem to be in favor of the
conclusion, that hereditary fiefs, with their servitudes, such as aid, wardship, marriage,
and perhaps relief (for Sir Henry Spelman and Mr Hallam differ on that point), were
introduced by the Conqueror. Spelman wrote his great work on Feuds and Tenures
by Knight Service to refute the argument of the Irish judges, and to support the
position in his Glossary that feuds were introduced at the Norman Conquest, and he
insists that feuds were not hereditary in England under the Saxon dynasty. He
declares that there is not a single charter in the Saxon tongue, before the Conquest,
in which any feudal word is apparently expressed. His discussion of the general ques-
tion is distinguished for its acuteness and research, and he has been followed in his
opinion, either wholly or in a great degree, by Sir Matthew Hale, Sir Martin Wright,
Sir William Blackstone, and Mr. Butler. To these great authorities may be added
[ 659 ]
* 502
[PART VI.
OF REAL PROPERTY.
* 502
* The tenures which were authoritatively established in
England, in the time of the Conqueror, were principally of
the equal name of Mr. Burke, who, in his admirable Abridgment of English History,
b. 2, c. 7, maintains the position that the Anglo-Saxons, those ruthless conquerors,
who swept before them the laws, language, and religion of the ancient Britons, and
lived in savage ignorance amid the ruins of Roman arts and magnificence, knew
nothing of hereditary fiefs, or any thing analogous to feudal tenures. Craig, in his
learned and elaborate work on the feudal law, is equally of opinion with Spelman
(and he preceded Spelman in this inquiry.) that the feudal law was first introduced into
England by William the Conqueror. Jus Feudale, lib. 1, Dieg. 7.
Mr. Turner, on the other hand, in his History of the Anglo-Saxons, throws the
weight of his authority, and great Saxon learning, into the opposite scale. He says,
there can be no doubt that the most essential part of what has been called tho feudal
system actually prevailed among the Anglo-Saxons. He admits that though all their
lands were charged with the trinoda necessitas, yet that the military service (the most
material of those three servitudes) might be commuted by a pecuniary mulct, and all
lands were hereditary without primogeniture. These admissions destroy the force of
his conclusion. Turner's History, ii. 541, 542, or Appendix, n. 4, b. 6, c. 3. The
trinoda necessitas, or liability for repairing fortresses and bridges, and for the military
service of the state, was coeval, Mr. Spence thinks, with the Saxon division of the
conquered lands, and was not a feudal obligation. Equitable Jurisdiction, i. 9. In the
recent History of Boroughs and Municipal Corporations in England, by H. A. Mere-
wether and A. J. Stephens, i. 69, they are also of opinion that the material parts.of
the feudal tenure did exist before the Conquest, and that the Normans brought over
only some of the more severe provisions and heavier services of the feudal tenure.
Mr. Reeve and Mr. Hallam perceive, in the dependence in which free. and even noble
tenants, held their estates of other subjects under the Anglo-Saxon constitution, much
of the intrinsic character of the feudal relation, though in a less mature and systematic
shape than it assumed after the Norman Conquest. Reeves's History of the English
Law, i. 9; Hallam on the Middle Ages, ii. c. 8, pt. 1. It would be presumption in
me, even if the occasion called for it, to attempt much discussion of such a question,
inasmuch as I have no means of access to original documents. There is one, and
only one Saxon monument which I have examined, and I would suggest, though
with very great diffidence, that the Anglo-Saxon laws, as collected and translated
from Saxon into Latin, by William Lambard, in his Archaionomia (Wheelock's ed.
Cambridge, 1644), seem to show sufficiently, by their silence on the topic of feuds,
and by the general tenor of their provisions, that the feudal system was not then in
any kind of force or activity. These laws are the crude productions of a semibarba-
rous race. Their chief objects were: (1.) The preservation of the peace. (2.) The
settling the rate of pecuniary mulets or compositions for all sorts of crimes, and when
corporal punishment was resorted to, the prescription was cruel. (3.) The settling of
the ceremonies of religious observances, and the oaths of the purgation and proof in
judicial trials. (4.) The regulation of the fraternities of frank pledges. Those laws
are evidence, however, of the existence and great extent of the evils of predial and
domestic servitude; and they show, also, even amidst their gross superstitions, numer-
ous indications of the civilizing genius of Christianity, and the effect of religious disci-
pline and restraint, in taming savage manners, and inculcating upon the minds of a
rude and illiterate people the obligations of peace, good order, and justice. As the
Anglo-Saxon laws contained very few regulations concerning private civil rights, it
has been supposed that those rights were under the government of Roman laws
[660]
LECT. LIII.]
* 504
OF REAL PROPERTY.
*two kirds, according to the services annexed. They * 503
were either tenures by knight service, in which the services,
*though occasionally uncertain, were altogether of a mili- *504
tary nature, and esteemed highly honorable, according to
remaining with the original natives. An impenetrable obscurity appears to hang over
the subject of the Anglo-Saxon institutions; and the toilsome, deep, acute, and spirited
researches of Sharon Turner and Sir Francis Palgrave, in Anglo-Saxon history,
involve the reader in a labyrinth of investigation, from which he derives little benefit,
and finds it difficult to preserve his courage in the investigation. Sir Francis Palgrave
says, that the laws of Alfred are entirely silent with respect to those institutions, which,
according to later historians, are to be ascribed to his sound policy and wisdom. A
considerable portion of the Anglo-Saxon law was never recorded in writing, and we
have not a single law, and hardly a single document, from which the course of the
descent of land can be inferred. Palgrave's Rise and Progress of the English Common-
wealth, i. 47, 59. The feudal system was created by the union of Roman laws and
barbarian usages; and as to the perplexed question relative to the existence or non-
existence of an Anglo-Saxon feudal system, Sir Francis concludes that the main differ-
ence between Anglo-Saxon feudality and the Norman feudal system consisted in the
establishment in the latter era of a more certain canon of descent and inheritance.
The claim of the heir became an absolute right, and the lord lost any discretionary
power of denying the renewal of the grant. Feudal principles were applied, under
the Saxon king Egbert, to insure the supremacy of the crown. The beneficiary
system had been long before interwoven with the municipal law. It was now enforced
upon the dependants of the crown, and introduced into Germany, where feudality had
become a mighty engine of power in the Carlovingian empire. Id. i. c. 19, 576–
587.
It is worthy of observation, and goes in confirmation of the conclusion, that the
English law of feuds was essentially of Norman, and not of Anglo-Saxon origin,
that allodial lands were changed into feudal throughout the kingdom of Scotland,
and the feudal structure completed there, about the same time with the like revolution
in landed property in England. This event took place under Malcolm III., who
began his reign A.D. 1057. Dalrymple's Essay on the History of the Feudal Property,
20, 21. Though Craig admits that the feudal law was unknown in Scotland before
the year 1000, yet he is of opinion that it was introduced into Scotland before it was
used in England; and he insists that it existed in Scotland, with the incidents of
wardship, marriage, and relief, some time before the Conquest. Jus Feudale, lib. 1,
Dieg. 8.
Another question arising in the ancient history of the English law is, whether the
great similarity between the ancient laws of England and those of the Duchy of Nor-
niandy was produced by the exportation of the English laws into Normandy, or the
importation of the Norman laws into England. Sir Matthew Hale, in his History of
the Common Law, c. 6, will not allow, as Lord Coke had refused to allow before him,
that the English took their laws from the Norman race, and he insists that the laws
of Normandy were, in the greater part thereof, borrowed from the English. He
appeals to the Grand Coustumier de Normandie, and which, he says, was compiled
after the time of King John. This venerable code of Norman laws and usages is
interesting to those persons who are fond of the study of legal antiquities. I am
indebted to the kindness of an English lawyer for the possession of a copy of the
work, in Norman French, with a Latin commentary, neatly printed at Rouen, A. D.
1539.
[ 661 ]
• 505
[PART VI.
OF REAL PROPERTY.
the martial spirit of the times; or they were tenures by socage, in
which the services were defined and certain, and generally of a
predial or pacific nature. (a) Tenure by knight service, in addi-
tion to the obligation of fealty and the military service of forty
days in a year, was subject to certain hard conditions. The
tenant was bound to afford aid to his lord, by the payment of
money, when his lord stood in need of it, on certain emergent
calls, as when he married his daughter, when he made his son a
knight, or when he was taken prisoner. So, when a tenant died,
his heir at law was obliged to pay a relief to the lord, being in
the nature of a compensation for being permitted to succeed to
the inheritance. If the heir was under age, the lord was entitled
to the wardship of the heir, and he took to himself the profits of
the land during the minority. Various modes were devised to
elude the hardships of this guardianship in chivalry, incident to
the tenure by knight service. The lord had also a right to dis-
pose of his infant ward in marriage, and if the latter refused, he
or she forfeited as much as was arbitrarily assessed for the value
*
of the match. If the tenant aliened his land, he was liable
*505 to pay a fine to the lord, for the privilege of selling.
Lastly, if the tenant died, without leaving an heir com-
petent to perform the feudal services, or was convicted of treason
or felony, the land escheated or reverted to the feudal lord. (a)
The greatest part of the lands in England were held by the
tenure of knight service; and several of these fruits and conse-
quences of the feudal tenure belonged also to tenure in socage.
The oppression of the feudal conditions of relief, wardship, and
marriage was enormously severe for many ages after the Norman
Conquest, and even down to the reign of the Stuarts. Upon the
(a) Wright on Tenures, 139-142.
(a) Littleton's Tenures, b. 2; Wright on Tenures, passim; 2 Bl. Comm. c. 5. Mr.
Hallam, i. 101-106, ii. 23, says, that reliefs, fines upon alienation, escheats, and aids
were feudal incidents belonging to feuds, as established on the continent of Europe;
and that wardship and marriage were no parts of the grant or feudal system, but
were introduced into England, and perhaps invented, by the rapacious feudal aristoc-
racy, under the Norman dynasty. He, however, gives instances of their prevalence
afterwards, all over Europe.
The Master of the Rolls, in the great case of Burgess v. Wheate, 1 Eden, 177,
says, that the right of escheat was not founded on the want of an heir, but of a tenant
to perform the services; and that the words had been used promiscuously, because,
before the power of alienation, want of tenant and heir was the same thing, for, at
the death of the ancestor, none but the heir could be tenant.
1
[662]
LECT. LIII.]
* 506
OF REAL PROPERTY.
•
*
506 ·
death of the tenant in capite, his land was seized by the crown,
and an inquisitio post mortem taken before the escheator, stating
the description and value of the estate, and the name and age
of the heir. The adult heir appeared in court and did homage to
the king, and paid his relief and recovered the estate. If the heir
was a minor, the land remained in wardship until he was of age,
and sued out his writ de ætate probanda, and under that process
he procured his release from wardship. The sale of the marriage
of the heir, whether male or female, was a valuable perquisite to
the king or his grantee. The ward was in contempt if he or she
refused the proffered match. In the reign of Henry II., the
crown wards were inventoried * like the slaves of a planta-
tion; and according to the Assizes of Jerusalem, the matron.
of sixty years might refuse a husband without incurring the penal-
ties of a contempt. (a) The abuses of the feudal connection took
place equally in other parts of Europe; but the spirit of rapacity
met with a more steady and determined resistance by the English
of the Saxon blood, than by any other people. This resistance
produced the memorable national compact of Magna Charta, which
corrected the feudal policy, and checked many grievances of the
feudal tenures; and the intelligence and intrepidity of the House
of Commons, subsequent to the era of the great charter, enabled
the nation to struggle with better success than any other people
against the enormous oppression of the system.
A feoffment in fee did not originally pass an estate in the sense
we now use it. It was only an estate to be enjoyed as a benefice,
without the power of alienation, in prejudice of the heir or the
lord; and the heir took it as a usufructuary interest, and in de-
fault of heirs, the tenure became extinct, and the land reverted
to the lord. The heir took by purchase, and independent of the
ancestor, who could not alien, nor could the lord alien the seigniory
without the consent of the tenant. This restraint on alienation
was a violent and unnatural state of things, and contrary to the
nature and value of property, and the inherent and universal love
of independence. It arose partly from favor to the heir, and
partly from favor to the lord; and the genius of the feudal system
was originally so strong in. favor of restraint upon alienation, that
by a general ordinance mentioned in the Book of Fiefs, (b) the
(a) Sullivan's Lectures, lec. 13; Harg. n. 65, to lib. 2, Co. Litt.; Quart. Rev
No. 77, p. 59.
(b) Lib. 2, tit. 55.
[ 663 ]
# 508
[PART VI.
OF REAL PROPERTY.
hand of him who knowingly wrote a deed of alienation was
directed to be struck off.
*
The first step taken to mitigate the severe restriction
507 upon * alienation of the feudal estate was the power of
alienation by the tenant with leave of the lord, and this
tended to render the heir dependent upon the ancestor. The
right of alienation was first applied to the lands acquired by the
tenant by purchase; and Glanville says, (a) that, in his time, it
was, generally speaking, lawful for a person to alien a reasonable
part of his land by inheritance or purchase; and if he had no
heirs of his body, he might alien the whole of his purchased lands.
If, however, he had a son and heir, he could not disinherit him,
and alien the whole, even of his purchased lands. The restraint
was almost absolute when the tenant was in by descent, and quite
relaxed when he was in by purchase; and there was no distinc-
tion on this subject, whether the fief was held by a military or
socage tenure. The free alienation of land commenced with
burgage tenures, and was dictated by the genius of commerce. (b)
The next variation in favor of the tenant was the right to alien
without the lord's license, when the grant was to him and his
heirs and assigns, and the general right of alienation seems to
have been greatly increased and extensively established, in the
age of Bracton. (c) The tenant gained successively the power
of alienation, if the grant was only to him and his heirs; and the
power to charge or incumber the land. The lord's right was
still further affected by acts of Parliament and judicial determi-
nations, for the fee was made subject by elegit to the tenant's
debts, and also by process under the statutes merchant and
staple. (d) It was further, and as early as the reign of Edw.
III., made subject to the dower of the wife. (e) Subinfeuda-
tion was also an indirect mode of transferring the fief,
*508 and resorted to as an artifice to elude the feudal restraint
upon the alienation; and by the time the statute of Quia
(a) B. 7, c. 1.
(b) Dalrymple's Essay on Feudal Property, c. 3, sec. 1.
(c) Bracton, b. 2, c. 5, sec. 4, 7; c. 6, fol. 18, b; c. 27, sec. 1.
(d) West. 2, 13 Ed. I. c. 18; also 13 Ed. I. De Mercatoribus, and 27 Ed. III.
Under the statute of De Mercatoribus, the whole of a man's lands were liable to be
pledged in a statute merchant for a debt contracted in trade, though only a moiety
thereof was delivered over by elegit for any other debt. The statute of 1 and 2 Vict.
c. 110, has now made the whole of the lands liable to the elegit.
(e) Bro. tit. Dower, pl. 64.
[ 664 ]
LECT. LIII.]
* 509
OF REAL PROPERTY.
Emptores, 18 Edward I., was enacted, prohibiting subinfeuda-
tions to all but the king's vassals, this feudal restraint had
essentially vanished, and the policy of that statute was to recall
the stability and perpetuity of landed estates. (a)
Successive improvements in the character of the estate and the
condition of the tenant greatly relieved the nation from some
of the prominent evils of the feudal investiture. But the odious
badges of the tenure still existed; and Lord Bacon, in his speech
at a conference before the Lords, on behalf of the Commons, in the
reign of James I., strongly recommended, by way of composition
with the crown, the abolition of wards and tenures, as having
become troublesome and useless. (b) At length, upon
the
restoration of Charles II., * tenure by knight service, with *509
all its grievous incidents, was by statute abolished, and the
tenure of land was, for the most part, turned into free and com
mon socage, and every thing oppressive in that tenure was also
abolished. The statute of 12 Charles II. essentially put an end
to the feudal system in England, although some fictions (and
(a) The statute of Quia Emptores, 18 Ed. I. c. 1, did not attempt to restrain the
practice of alienation altogether; but its object was to prohibit the practice of sub-
infeudation. A freeman might sell his lands at pleasure; but the will of the donor
should be observed, and the feoffee or purchaser should hold the lands of the same
chief lord of the fee, and by the same services, as his feoffor held them before. The
feoffor could not make himself lord of such an estate. All he could do was to trans-
fer his own tenancy. Sir Thomas Clarke, the Master of the Rolls, in Burgess v.
Wheate, 1 Eden, 191, has given a short but clear view of the progress of the feudal
estate, in its recovery from the feudal restraint of nonalienation. See, also, Mr.
Butler's note 77, lib. 3, Co. Litt., V., n. 6, 7, 8, 9, 10, 11; and see, especially, the able
and learned history of the alienation of land, in Dalrymple's Essay on Feudal
Property, c. 3.
(b) Lord Bacon's Works, iii. 359. It appears, by the directions given by order of
James I. to the Master of the Wards, that the king, while he sought to restrain the
abuses, set a high value on his prerogative rights of wardship and marriage. There
was a yearly inquisition directed to be taken by persons of credit, for each county, of
the persons and lands in wardship, to be certified and returned into the Exchequer ;
and though Lord Bacon declared that the policy, spirit, and utility of the military ten-
ures were entirely gone, yet it appears that the people were grievously oppressed by
feudaries, and other inferior ministers of like nature, by color of the king's tenures;"
and the royal instructions were, that the "vexations of escheators and feudaries be
repressed, which, upon no substantial ground of record, vex the country with inquisi-
tions and other extortions; and that the Master of Wards take special care to receive
private information from gentlemen of quality and conscience in every shire, touch-
ing these abuses." So late as the reign of Charles I., the Earl of Warwick, as grantee
of the wardship of an heiress, extorted £10,000 sterling for his consent to a marriage
on every account desirable. Lord Bacon's Works, iii. 364-368; Sullivan's Lectures
on Feudal Law, lec. 13.
[ 665]
* 510
[PART VI.
OF REAL PROPERTY.
they are scarcely any thing more), founded on the ancient feudal
relation and dependence, are still retained in the socage tenures.
3. Of the Doctrine of Tenure in the United States. Socage tenure
denotes lands held by a fixed and determinate service, which is
not military, nor in the power of the lord to vary at his pleasure.
It was the certainty and pacific nature of the service, duty, or ren-
der, which made this species of tenure such a safeguard against the
wanton exactions of the feudal lords, and rendered it of such ines-
timable value in the view of the ancient English. It was deemed
by them a point of the utmost importance, to change their tenures
by knight service into tenure by socage. Socage tenures are, how-
ever, of feudal extraction, and retain some of the leading proper-
ties of feuds, as has been shown by Sir Martin Wright, in his learned
treatise on tenures; (a) and which work has been freely followed
by Sir William Blackstone, in his perspicuous and elegant, and
we may truly add, masterly disquisitions on the feudal law. Most
of the feudal incidents and consequences of socage tenure were
expressly abolished in New York by the act of 1787; and they
were wholly and entirely annihilated by the New York Revised
Statutes, as has been already mentioned. (b) They were also
*
abolished by statute in Connecticut, 1793; (c) and they
* 510 have never existed, or they have ceased to exist, in all
essential respects, in every other state. The only feudal
fictions and services which can be presumed to be retained in
any part of the United States, consist of the feudal principle, that
the lands are held of some superior or lord, to whom the obliga-
tion of fealty, and to pay a determinate rent, are due. The act
of New York, in 1787, provided that the socage lands were not
to be deemed discharged of " any rent certain, or other services
incident, or belonging to tenure in common socage, due to the
people of this state, or any mean lord, or other person, or the
fealty or distresses incident thereunto." The Revised Stat-
utes (a) also provided that "the abolition of tenures shall not
take away or discharge any rents or services certain, which at
any time heretofore have been, or hereafter may be, created or
(a) Pp. 141-144.
(b) Supra, p. 378.
(c) The statutes of Connecticut, 1838, p. 389, declared, that "every proprietor in
fee simple of lands" had an absolute and direct dominion and property in the same.
They were declared to be "yested with an allodial title."
(a) N. Y. Revised Statutes, i. 718, sec. 4. \
[ 666 ]
LECT. LIII.]
* 511
OF REAL PROPERTY.
reserved." The lord paramount of all socage land was none
other than the people of the state, and to them, and them only,
the duty of fealty was to be rendered; and the quit-rents, which
were due to the king on all colonial grants, and to which the
people succeeded at the Revolution, have been gradually dimin-
ished by commutation, under various acts of the legislature, and
are now nearly, if not entirely, extinguished.
In our endeavors to discover the marks or incidents which with
us discriminated socage tenure from allodial property, we are con-
fined to the doctrine of fealty, and of holding of a superior lord.
Fealty was regarded by the ancient law as the very essence and
foundation of the feudal association. It could not on any account
be dispensed with, remitted, or discharged, because it was the vin-
culum commune, the bond or cement of the whole feudal policy. (b)
Fealty was the same as fidelitas. It was an oath of fidelity to the
lord; and, to use the words of Littleton, (c) when a free-
holder doth * fealty to his lord, he shall lay his right hand *511
upon a book, and shall say, "Know ye this, my lord, that I
shall be faithful and true unto you, and faith to you shall bear, for
the lands which I claim to hold of you, and that I shall lawfully
do to you the customs and services which I ought to do at the
terms assigned: so help me God and his saints." This oath of
fealty everywhere followed the progress of the feudal system, and
created all those interesting ties and obligations between the lord
and his vassal, which, in the simplicity of the feudal ages, they
considered to be their truest interest and greatest glory. It was
also the parent of the oath of allegiance, which is exacted by
sovereigns in modern times. The continental jurists frequently
considered homage and fealty as synonymous; but this was not
so in the English law, and the incident of homage was expressly
abolished in New York by the act of 1787, while the incident of
fealty was expressly retained. Homage, according to Littleton,
was the most honorable and the most humble service of reverence
that a frank tenant could make to his lord; but it is quite too
abject and servile a ceremony of submission, allegiance, and rever-
ence to be admissible at this day.
Lands held by socage tenure (and all lands granted or patented
before the Revolution are so held) (a) would seem, in theory, to
(b) Wright on Tenures, 35, 55, 138, 140, 145.
(c) Sec. 91.
(a) The tenure prescribed in all the early colonial charters or patents was free and
[ 667 ]
* 512
[PART VI.
OF REAL PROPERTY.
have been chargeable with this oath of fealty; and every tenant,
whether in fee, for life, or for years, was, by the English law,
obliged to render it when required, as being an indispensable ser-
vice, due to the lord of whom he held. Fealty was at common
law deemed inseparable from tenure of every kind, except the
tenure in frankalmoign; but a tenant at will was not bound to it,
as his estate was too precarious; and though Littleton says, that a
tenant for years was bound to render fealty to the lessor, Mr. Har-
grave has referred to some cases which raise a doubt upon
*512 that point. (b) He also observes, that no statute has ever
varied the law of fealty, and that the title to fealty still
remains, though it is no longer the practice to exact its perform-
ance. However, if required, it must be repeated on every change
of the lord, and the remedy for compelling the performance of
fealty is by distress. (a) Sir Matthew Hale (b) says, the oath
of fealty may be due to an inferior lord, and then the oath must
have the saving salva fide et ligeantia domini regis. It may be
exacted in England by landlords, and lords of manors, from ten-
ants other than tenants at will, or from year to year. The New
York statute of 1787 saved the services incident to tenure in
common socage, and which it presumed might be due, not only
to the people of the state, but to any mean lord or other private
person, and it saved the fealty and distresses incident thereunto.
But this doctrine of the feudal fealty was never practically
common socage, being “according to the free tenure of lands of East Greenwich, in
the county of Kent, in England; and not in capite or by knight's service." See the
great patent of New England, granted by King James in 1620; the charter of Massa-
chusetts in 1629; the prior charter of Virginia in 1606; the charter of the Province
of Maine in 1639; the Rhode Island charter in 1663; the Connecticut charter in 1662;
the Maryland charter in 1632; the act of the General Assembly of the colony of New
York, of 13th May, 1691; (Bradford's ed. of Colony Laws, printed in 1719;) the charter
of Pennsylvania in 1681; the patent of 1662, of Carolina; the charter of Georgia in
1782. These charters, or the substance of them, are to be seen in most of our early
colonial documentary collections, annalists, and historians; and the substance of them
is accurately condensed and stated in Story's Commentaries on the Constitution of
the United States, vol. i.
(b) Littleton, sec. 117, 130, 131, 132, 139; Co. Litt. 63, a, 67, b; Harg. n. 13 to
lib. 2, Co. Litt.
(a) Harg. n. 20 to lib. 2, Co. Litt. The distress was also the remedy of the feudal
lord for enforcing his claim to relief, and the validity of his title was tried on the part
of the heir in the action of replevin. Case of the Provost of Beverly, 40 Edw. III.
9. By the N. Y. Revised Statutes, i. 747, sec. 18, distress is a remedy given for all
certain services, as well as certain rent reserved out of lands, and due.
(b) H. P. C. i. 67.
[ 668 ]
LECT. LIII.]
* 513
OF REAL PROPERTY.
applied, nor assumed to apply to any other superior than the
chief lord of the fee, or, in other words, the people of the state,
and then it resolved itself into the oath of allegiance which
every citizen, on a proper occasion, may be required to take.
Lord Coke did not designate any very material difference be-
tween the oath of fealty and the general oath of allegiance,
though he raised the question as to the difference which might
exist between them; (c) but Sir Matthew Hale, (d) in a long
and learned dissertation, undertakes to explain the difference
between the oath of allegiance and the oath of fealty. Under the
New York statute of 1787, fealty, in the technical sense of the
feudal law, was a dormant and exploded incident of feudal
*tenure; (a) and by the Revised Statutes even the fiction *513
has become annihilated, unless it may be supposed to be
lurking in the general declaration, that "the people of this state,
in their right of sovereignty, are deemed to possess the original
and ultimate property in and to all lands within the jurisdiction
of the state." (b)
Thus, by one of those singular revolutions incident to human
affairs, allodial estates, once universal in Europe, and then almost
universally exchanged for feudal tenures, have now, after the
lapse of many centuries, regained their primitive estimation in
the minds of freemen. Though the doctrine of a feudal tenure
by free and common socage may be applicable to the real prop-
erty in this country, chartered and possessed before our Revolu-
tion, and though every proprietor should be considered as holding
(c) Co. Litt. 68, b.
(d) H. P. C. i. 62–70.
(a) In Cornell v. Lamb, 2 Cowen, 652, it was declared, by Woodworth, J., that
fealty was not, in fact, due on any tenure in this state, and had become altogether
fictitious. The statute of 1787 would seem, according to the feudal theory, not to
have been penned with philological accuracy, when it declared, that the tenure of all
lands derived from the people of this state should be allodial, and not feudal. Allodial
estates have no mark of tenure, and are enjoyed in absolute right, and tenure signi-
fies the holding of a superior lord. Sir Henry Spelman says, that the first place in
which he met with tenure in a feudal sense, was among the laws of the Saliques and
Germans, in the constitution of the Emperor Conrad, about the year 915, when bene-
ficia, afterwards called feuds, first became hereditary. Spelman's Treatise on Feuds,
c. 3. Tenure est la manière par quoy les ténémens sont tenus des Seigneurs. Cus-
tum. de Norm. cited by Sir Martin Wright on Tenures, 139, note. But the statute
did not commit any mistake, because it used the word, not in a feudal, but in the
popular sense, for right or title, in like manner as in England, the king, whose inherit-
ance cannot possibly import a tenure, is said to be seised in his demesne as of fee.
(b) N. Y. Revised Statutes, i. 718, sec. 1.
[ 669 ]
* 514
[PART VI.
OF REAL PROPERTY.
an estate in fee simple, none of the inconveniences of tenure are
felt or known. We have very generally abolished the right
*514 of primogeniture,* and preference of males, in the title by
descent, as well as the feudal services, and the practice of
subinfeudation, and all restraints on alienation. (a) Socage ten-
ures do not exist any longer, in some of the United States, while
they still exist, in theory at least, in others; but where they do
exist, they partake of the essential qualities of allodial estates.
An estate in fee simple means an estate of inheritance, and
nothing more, and in common acceptation it has lost entirely its
original meaning as a beneficiary or usufructuary estate, in con-
tradistinction to that which is allodial. It was used even by
Littleton and Coke to denote simply an inheritance; and they are
followed by Sir Martin Wright and Sir William Blackstone. (6)
Whether a person holds his land in pure allodium, or has an
absolute estate of inheritance in fee simple, is perfectly imma-
terial, for his title is the same to every essential purpose. The
distinction between the two estates has become merely nominal,
and a very considerable part of Littleton's celebrated treatise on
tenures, on which Lord Coke exhausted his immense stores of
learning, has become obsolete. But those parts of it which have
ceased to be of modern application, will, nevertheless, continue,
like the other venerable remains of the Gothic system, to be
objects of examination and study, not only to the professed anti-
quarian, but to every inquisitive lawyer, who, according to the
advice of Lord Bacon, is desirous "to visit and strengthen the
roots and foundation of the science." (c) 1
(a) By the Revised Constitution of New York of 1846, all fines, quarter sales, or
other like restraints upon alienation, reserved in any grant or lease of land made
thereafter are declared to be void. Art. 1, sec. 15.
(b) Co. Litt. 1; 2 Bl. Comm. 106.
(c) C'est un beau spectacle que celui des loix féodales: un chêne antique s'élève.
il faut percer la terre pour les racines trouver. Montesquieu's account of the feudal
laws is the best and most solid part of his work. He traces them up to the forests of
Germany, and shows that they were suggested by the usages, promoted by the policy,
and matured by the martial genius of the ancient Germans. Those fierce tribes of
barbarians, having long been inured to turbulent warfare, at length broke through
the restraints imposed by disciplined valor, put to flight the Roman eagles in all the
northern provinces of the Empire, and finally prostrated the most extensive and best
cemented monarchy which had ever insulted and enslaved mankind.
1 The subjects dealt with in this chap-
ter are considered, so far as the origin of
individual property in land is concerned,
in the next volume, 441, n. 1. The results
of the more recent investigations there
referred to are not considered with refer-
[ 670 ]
LECT. LIII.]
* 514
OF REAL PROPERTY.
ence to the political institutions of the
Teutonic tribes. It may be mentioned
here that M. Nasse confirms the author's
opinion, and says that it may now be
considered an established fact that the
feudal system did not exist in England
at the Anglo-Saxon period, and was first
imported as an institution by the Normans.
Contemporary Rev. xix. 748.
in the Systems of Land Tenure in Various
Countries (published under the sanction
of the Cobden Club, London, 1870), p.
291, on the authority of Professor Max
Müller. The derivation of feodum is more
uncertain, but it is thought that it is de-
rived from the same root as the Old High
German fihu, cattle, to express the idea
of beneficial as distinct from absolute
But compare Stubbs's Documents il- ownership. Compare the use of the word
lustrative of English History, 13.
chattel in English law. Ib. Cf. Pap. Jurid.
Soc. ii. 420, 421.
The first definition of alodium given
498, n. (a), is confirmed by Morier's Essay
[ 671]
Cambridge: Stereotyped and Printed by John Wilson & Son.
UNIVERSITY OF MICHIGAN
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