author: Thompson, J.

text:
    *Imlay against Sands.
    Probable cause of seizure is no justification for a collector of the customs or other officer making seizures under the revenue laws of the United States.
    This cause came before the court on demurrer. It was an action of trespass against the defendant, collector of the customs at the port of New York, for seizing and taking, in April, 1799, the plaintiff’s brig and her cargo, under the act of the 13th June, 1798, (United States Laws,'V. 4, p. 129,) suspending the commercial intercourse between the United States and France, and the dependencies thereof.
    The declaration was in the common form, to which the defendant pleaded, 1st. The general issue ; and, 2d. Actio non, “ Because that at the time when the trespass aforesaid in the -declaration aforesaid mentioned is above supposed to be committed, and long before and afterwards, the said Joshua Sands was collector of the customs of the district of the city of New York, to wit, at the city and ward and . in the county aforesaid ; and the said Joshua further saith, that after the .first day of July, in the year of our Lord one thousand seven hundred and ninety eight, and before the end of the session of congress next after the tenth day of June in the same year, to wit, on the eleventh day of March, in the year of our Lord one thousand seven hundred and ninety nine, upon waters navigable from the sea by vessels of ten or more tons burden, in the district of New York, to wit, at the city and ward and in the county aforesaid, John Lasher, Esquire, surveyor of the customs for the district for the city of New York, by the command of the said Joshua, (he the said Joshua being then and there collector of the customs fort he district of the city of New York as aforesaid,) did seize to the use of the said United States as forfeited, the said brig and the coffee and sugar in the said declaration mentioned, the same coffee and sugar being then and there the cargo of the said brig, for that the said brig after the said first day of July, and before the end of the session of congress next after the thirteenth day of June, in the same year of our Lord one thousand seven hundred and ninety eight, to wit, on the [*■567] first day of September, one thousand seven hundred and ninety-eight, at the city and ward and in the county aforesaid, being then owned by a person resident within the United States of America, to wit, by one John Vaneman, a person residing at Philadelphia, that is to say, at the city and ward and in the county aforesaid, departed on a voyage from the United States, to wit, from Wilmington, in the state of North Carolina, that is to say, from the city, ward and county aforesaid, for the Island of St. Thomas, in the West Indies, and before her return within the United States, to wit, on the first day of January, in the year of our Lord one thousand seven hundred and ninety-nine, was allowed to proceed from thence to a port'in the West Indies under the acknowledged government of France, to wit, to Port Liberty, in the island of Hispaniola, contrary to the form of the act of congress of the United States of America, entitled, An act to suspend the commercial intercourse between the United States and France, and the dependencies thereof; and the said Joshua Sands further saith, that afterwards to wit, on the ninth day of April, in the said year of our Lord one thousand seven hundred and ninety-nine, a libel was filed for and on the behalf of the said United States, in the district court of the said United States, for the New York district, held at the said city, against the said brig and her said cargo, by the attorney of the said United States for the said district, praying that the said brig and her cargo might, for the cause aforesaid, and others appearing, be condemned as forfeited to the use of the said United States, and such proceedings were thereupon had in the said court, that the said brig and her said cargo, afterwards, to wit, on the eleventh day of July, in the same year, were, by the sentence and decree of the same court, at the city and ward and in the county aforesaid, condemned, and adjudged to be forfeited to the use of the said states, which sentence and decree remained in full force and virtue, until the same was, after-wards, to wit, on the first day of September, in the said year of our Lord one thousand seven hundred and ninety-nine, reversed by the judgment *and decree [*568] of the circuit court of the United States, for the district of New York in the eastern circuit, to wit, at the city and ward aforesaid; and the said Joshua further saith, that the seizing of the brig aforesaid, and her said cargo, for the cause aforesaid, is the same taking away of the said . brig, coffee and sugar in the declaration above mentioned, and this he is ready,” &c.
    To this plea was subjoined a notice of giving all the several facts it contains in evidence, and also that the judge of the district did, bn, &c. “ at a district court of the said states held in and for the said district, at the city and ward and in the county aforesaid, certify that the defendant had probable cause for the said seizure.”
    The plaintiff joined issue on the first plea, and to the second demurred generally.

      Hoffman, for the demurrant.
    The only question is, whether the facts set forth on the record be a sufficient justification of Sands, the collector, for the trespass with which he is charged. It has long been settled that probable cause of seizure cannot be urged by a custom-house officer in excuse, if the event prove that .there was no legal and actual reason for the taking. In Leglisle v. Champante, 2 Stra. .820, the defendant had seized several hogsheads of French wines belonging to the plaintiff, under pretence of .their being lees; on an information in the exchequer it was determined against him, and in an action by the plaintiff for the trespass, the court, on debate, held that in these cases the officer seizes at his peril, and that probable cause is no defence. So in Bostock v. Saunders, 2 Bl. Rep. 912, the same principle is recognized and extended; for there the officer acted under a warrant obtained on oath from the commissioners of excise, (10 Geo. I. 6, 10, s. 12 and 13,) who were authorized to grant it on an affidavit of a suspicion that the revenue laws had been infringed. The same case is to be found in 3 Wils. 434, where the court will perceive that the doctrine is a little more strongly laid down. It is there said that notwithstanding the provisions of the 13 and 14 Car. II. c. 11, s. 32, which gives the writ of assistance in revenue cases, and enacts that all per-[*569] sons acting under it shall be *saved harmless, yet if he who enters under it find nothing, he is a trespasser ab initia. To support the grounds of this action is no more than consonant to reason and justice. The court, on viewing the result of a contrary procedure, will certainly strengthen the positions we have taken with all their power. It is peculiarly necessary in this country; we have not a statute like that in England as to seizures on the oath of a third person. Every thing here is left to the discretion c f the custom-house officer, and the property of each individual exposed to the attacks of a collector or other officer who is interested in having it condemned. It is indispensable, therefore, that every legal check should be laid on their proceedings, and if the defendant suffer in this action, he may, perhaps, have redress from the United States.

      Hanson, contra.
    As to the point of probable cause, it may, in general, be a true principle that it is not a justification if there be no real cause. But on recurring to the provisions of the federal law as to the duty of collectors, it will be seen to be specially enacted, (Laws U. S. vol. 4 p. 429, March 2, 1799, c. 128, s. 89,) that wherever a prosecution shall be commenced on account of any seizure if reasonable cause of such seizure appear to the court before which the prosecution is tried, the court shall cause a proper certificate or entry to be made of it, and in such case the person who made the seizure, or the prosecutor for such seizure, shall not be liable to action, suit or judgment on account thereof. That this has been literally done is not insisted, but whenever sentence has been passed, and the property condemned, it is tantamount .to a certificate. For it is the judgment of the court that there was real cause. But it is not on this that it is intended to rest our defence; we mean to consider the case on its merits. In this view, therefore, the court will consider whether the facts actually on the record, and now before the court, do not plainly show a forfeiture under the. act of congress suspending the intercourse with France. The words of that act expressly declare “ That no ship or vessel, owned, hired or employed., wholly or in part by any person resident within the United States, and which shall depart therefrom after the first day of July next, (July 1798,) shall be allowed to proceed directly, or from any intermediate port or place, *to any port or [*570] place within the territory of the French Republic, or the dependencies thereof, or to any place in the West Indies, or elsewhere, under the acknowledged government of France, or shall be employed in any traffic or commerce with or for any person resident within the jurisdiction or under the authority of the French Republic, and if any ship or vessel in any voyage thereafter commencing, and before her return within the United States shall be voluntarily carried or suffered to proceed to any French port or place as aforesaid, or shall be employed as aforesaid, contrary to ihe intent thereof, every such ship or vessel, together with her
      cargo, shall be forfeited, and shall accrue the one half to the use of the United States, and the other half to the use of any person or persons, citizens of the United States, who will inform and prosecute for the same; and shall be liable to be seized, prosecuted and condemned in any circuit or district court of the United States, which shall be holden within or for the district where the seizure shall be made ”
    It is further enacted, “ That after the first day of July next, no clearance for a foreign voyage shall be granted to any ship or vessel owned, hired or employed, wholly or in part, by any person resident within the United States, until a bond shall be given to the use of the United States, wherein the owner or employer, if usually resident or pre sent where the clearance shall be required, and otherwise his agent or factor, and the master or captain of such ship or vessel for the intended voyage shall be parties, in a sum equal to the value of the ship or vessel and her cargo, and shall find sufficient surety or sureties to the amount of one half the value thereof, with condition that the same shall not, during her intended voyage, or before her return within the United States, proceed, or be carried directly or indirectly to any port or place within the territory of the French Eepublic, or the dependencies thereof, or any place in the West Indies, or elsewhere, under the acknowledged government of France, unless by distress of weather, or want of provisions, or by actual force or vio[*571] lence to be fully proved and manifested *before the acquittance of such bond; and that such vessel is not, and shall not be employed during her intended voyage, or before her return as aforesaid, in any traffic or commerce, with or for any person resident within the territory of that republic, oi in any of the dependencies thereof.”
    All these facts, thus set forth in the act as working a forfeiture of the vessel and cargo, are expressly stated in the plea. The vessel is alleged to be the property of Vaneman, a person resident in Philadelphia; to have been x.luntarily carded k> Port Liberty, in Hispaniola, a port under the acknowledged government of France ; in short, every circumstance specified by the act is spread on the record, and consequently the vessel must be liable to seizure. .If this appears fully to the court, it is enough, and the forfeiture is an inference of law which they are, from the pleadings, authorized to draw. If so, the statement of a contradictory sentence is immaterial, and makes no difference in the reasoning. If the defence is sufficient, without the sentences, it is enough. On the facts taking place the forfeiture attached; and these appearing on the pleadings are data for the court to go upon, and preclude all argument against there not being an actual and real cause of seizure. ' In Lockyer v. Offley, 1 D. & E. 252, the court, on the circumstances in the case, drew the inference that a forfeiture had attached, and decided accordingly. So in Wilkins v. Despard, 5 D. & E. 112, the fact of forfeiture being admitted by the pleadings, the court would not allow the legality of the seizure to come in question on the record. The subsequent matter of condemnation is immaterial, and of course the reversal; because there is a perfect evidence previously on the record that shows a forfeiture. For the doctrine as to averments and allegations the court will see sufficient authority in Williamson v. Allison, 2 East, 452. It is there said by Lawrence, J. “ With respect to what averments are necessary to be proved, I take the rule to be, that if the whole of an averment may be struck out without destroying the plaintiff’s right of action, it is not necessary to prove it, but otherwise, if the whole cannot be struck out without getting rid of a part essential to the cause of action; for then, though the averment be more particular than it need have been, the *whole must be prove'd or the plaintiff cannot f*572] recover.” Apply this doctrine to the pleadings; strike out all beyond the facts, and the defence Is complete; therefore, the residue need not be maintained, and th<5 court will go on what is sufficient for the defence. It may be said that Vaneman did not send the vessel; but this, if material, ought to have been stated, for it might have varied the case.

      Hoffman, in reply.
    We do not disagree on general principles; that is, though Sands had probable cause of seizure, still he would have been liable to the plaintiff. It is contended that the record sets forth enough to have led to a forfeiture and condemnation, and therefore the court must lay out of the question all beyond the forfeiture, and judge that there was a real, and not a mere probable cause. The court will determine on the whole record, and not take up a part, to say the court of the United States has not decided according to law. This is a question under the laws of the United States. To them the defendant applied to be judged; we pursue that judgment through his own tribunals, the courts of his own chasing; and they decide against him. This decision is pronounced in a court of exclusive and adequate jurisdiction. It would be nugatory to make any determination contrary to the judgment of the federal courts, because even now the present suit may be carried up to them. If the effect of the statute is to be considered, that might have been done, and the plaintiff punished under it. The court will see in the second section the penalty of the bond is the consequence of certain infringments, that may have been pronounced, and the vessel declared not forfeited. If the judgment was wrong, Sands might have appealed further, but he has himself acquiesced.

      Harison.

    We do not consider ourselves concluded by the decision of the United States’ court. Suppose the evidence there in our favor was defective, and we afterwards acquire full proofs in our justification, shall we not use them ?

      Hoffman.

    You should then have stated them in your plea; that merely follows the words of the act, and nothing further is to be intended.
   Thompson, J.

delivered the opiiyon of the court.

The facts detailed *in the defendant’s plea are ad- [*573] mitted by the demurrer to be true; and the question then arises whether those facts will afford a justification to the defendant. It is said that the sentence of condemnation in the district court evinces that there was probable cause for this seizure, and will afford grounds of justification for the defendant, who was acting as a public officer. 'Admitting there was probable cause for the seizure, still this will not shield the defendant from responsibility. In the case of Leglise v. Champante, 2 Stra. 820, it was expressly decided, that in such cases the officer seizes at his peril, and that a probable cause is no defence. This point seems fully settled in a variety of cases. The officer here is a mere volunteer, and acts at his peril, and his justification depends on the event. 3 Wil. 440. 2 Black. Rep. 912. It is not like the case of a ministerial officer who acts under process which he is bound to execute. That there was no real ground for the seizure appears by the defendant’s own showing. He states that the sentence of condemnation pronounced by the district court was, on appeal, reversed by the judgment of the circuit court. The act of congress under which the seizure was made, makes no provision for the exoneration of the custom-house officer. Nothing appears but that the defendant acted in good faith, and although it would seem reasonable that where the officer acted bona fide, and according to his best judgment, he ought to be protected, yet we are bound to pronounce the law as we find it, and leave cases of hardship, where any exist, to legislative provision. Lord Kenyon, in the c$se of Warne v. Varley, 6 D. & E. 448, treats this question as long since at rest in England. He says that custom-house officers were, until a late act of parliament, (19 G. II. c. 34, s. 16,) was passed to protect them, liable to an action for seizing goods if it ultimately turned out that the goods were not the- subject matter of seizure, even though there was a probable cause for seizing them.

We are therefore of opinion, the plaintiff ought to have judgment.

Judgment for the demurrant.

         The supreme court of the United. States has determined that a commander of a United States ship is liable to damages for captu. ing a vessel when there is not a probable cause for seizure; Maley v. Shattuck, 3 Cranch, 458, though he has acted bona fide, and from a belief that it was his duty to send her in; Murray v. Charming Betsey, 2 Cranch, 64, and that the instructions of the president are no justification any further than those instructions are warranted by law. Little v. Barreme, 2 Cranch, 70. In this last case whether probable cause of seizure be a justification is queried.


source: Caselaw Access Project

author: Livingston, J.

license: Public Domain

text:
    Leavenworth against Delafield. The Same against Dale.
    Wages and provisions, during the detention of a vessel captured and carried in for adjudication, are subjects of general average. If a vessel be captured during her voyage, in settling the proportion of average, the freight will be chargeable up to the day of capture. The amount on which a general average in cases of capture is to be calculated is, 'the cargo on its first cost or invoice price, and charges at the port of departure; the vessel on four-fifths of its value at the same place; the freight at one half agreed to be paid.
    These were two actions on policies of assurance [*574] from *Hew York to Havre de Grace. The first on the freight valued at 2,000 dollars; the other on the ship valued at 7,000 dollars.
    The facts, as they appeared from the case, were these : 23d July, 1801 — The vessel sailed from'Hew York on the voyage insured.

      4th Sept. 1801 — She was captured in the British channel and carried into Ramsgate.
    12th ¡Nov. 1801 — An abandonment was made on both policies to the defendants in the two causes, which they refused to accept.
    4th Jan. 1802 — She was liberated, and afterwards sailed for Havre, where she arrived and delivered her cargo.
    ¡November, 1802 — The defendants accepted the abandonments, and consented to verdicts against them, subject to calculations as to the amount to be recovered against them on incidental causes.
    It was agreed that the court charges and other expenses attending the reclamation of the property, including port charges, and exclusive of wages and provisions, amounted to 4,121 dollars and 24 cents.
    That the ship’s crew consisted of a captain, mate, seamen, a cook and boy, whose monthly wages amounted to 221 dollars, their provisions to 110 dollars and 50 cents.
    That the vessel had performed 8-9ths of her voyage, as to distance, when she was captured.
    Upon the above facts and admissions the following questions were raised for the consideration of the court.
    1st. Whether the wages and provisions of the crew are to be brought into general average, or to be a charge on the freight only ?
    2d. If on the freight only, whether,
    1st. The plaintiff is entitled to recover the whole from the underwriters on freight ? or,
    2dly. Whether the underwriters on the vessel shall pay the whole ? or,
    3dly. Whether the plaintiff is to recover part from *the underwriters on the freight, [*575] and the residue from the underwriters on the vessel ?
    3d. If the latter is to be the result, then whether,
    1st. The underwriters on the freight are to pay eight-ninths of the expenses, for wages and provisions, and those on the ship the other ninth ?
    2dly. Or, are the underwriters on the freight to pay so much as accrued up to the 12th of November, 1801, the day of abandonment, or the 4th of September, the day of capture; and the underwriters on the vessel what was incurred from that day to the 4th of January, 1802, when the property was liberated ? or,
    3dly. What other rule of apportionment is to be adopted.
    4th. In calculating the general average, is the cost o the cargo here, or v^lue at the port of destination, to be the sum on which the estimate is to be- made.
   Livingston, J.

delivered the opinion of the court. It is matter of surprise that questions, which must frequently have occurred in so commercial a country as Great Britain, and where so large a capital is employed in insurance, have not been decided in any of her courts. We must therefore, endeavor to discover what is reasonable and most conformable to the ancient laws and usages of other commercial nations; for, where precedents are not to be found, the practice of such countries may be deemed the best guide on the subject of maritime law.

We are, then, first, to determine whether wages and provisions, during a detention after capture, form a general average, or fall on the freight only ?

When it is considered that capture is a disaster which generally happens without fault of the owner of goods or vessel, but by superior force, against which no human precaution can always provide, and that the expenses, here in dispute, are incurred in consequence of this vis major, or casus fortuities, and for the common benefit of all, it is not easy to assign a reason why they should be borne by one of the' parties in misfortune rather another. Of little advantage would it be to claim a valuable property, after ^capture, unless the mariners remained for [*576] the purpose of proceeding to the port of discharge in case of liberation. It would otherwise, if acquitted, be exposed to perish, or be sold at great disadvantage. It was said on the argument, that the master was not obliged to detain his - crew. Whether it be compulsory on him. to Eo so or not, is of no moment. It is sufficient that he has done it in the present ease; that he has acted with good faith, and that such detention was manifestly for the general weal. It may well be doubted, however, whether it be not obligatory on him to keep them, at least, a reasonable time; for, idle would it be, in many cases, to labor for a recovery of the property unless it could afterwards be conveyed to its intended port. The cargo, in this case, might have been sacrificed in England, if the crew had been immediately discharged. Nor is it just, as it- respects this useful class of men, instantly to dismiss them in a foreign country after an accident of this kind, without affording them an opportunity of knowing the fate of the property, and a chance of defending and receiving their wages. At any rate, the objection comes awkwardly from any of those who have arrived a certain benefit from the detention of this crew, without which there would probably have been a total instead of a partial loss. But without recurring to first principles, or searching for precedents, it is not matter of contract between the different classes of underwriters to regard expenses of this kind as a subject of general contribution ? • Every policy contains a clause that in case of loss or misfortune, if it shall be necessary for the assured, his factors, servants or assigns, to sue, labor and travel for, in and about the safeguard and recovery of the property,” the several underwriters “ promise to contribute to the charge thereof, according to the quantity of the sum by them insured.” Now, if a charge for exiru wages and provisions be one, as it certainly is, which accrues in', consequence of the labor and travel thus enjoined, and be' absolutely necessary to give effect to such pursuit, the parties to the differ en tinsurances have consented to its being apportioned among them.

In conformity with this_ stipulation is the practice of most of the commercial nations whose usages are known to us.

*Bicard, who treats of the commerce of Amsterdam, and after him Beawes, in his Lex Mercatoria, says, If a ship be taken by force and carried into some port, and the men remain on board to take care of and reclaim her, the wages and expenses of the ship’s company, during the arrest, shall be brought into general average.” Page 150. For this rule the author just cited assigns this very obvious reason: “ As the crew,” says he, “ remained on board, during an endeavor to reclaim her, these expenses were occasioned with the sole view of preserving the ship and cargo for their proprietors.”

In England it is settled, that if a ship be obliged to put into port to repair, and this be necessary for the safety of all, the charges of unloading, reloading and taking care of the cargo, and also the wages and provisions of the workmen hired to repair her, become a general average. Da Costa v. Newman, 2 D. & E. 407. The accident in the case of Da Casta v. Newman had happened to the ship alone, and might, ;n some measure, have been owing to her feeble or impaired condition. It would have been more reasonable, therefore, that her owner, or underwriter, should have defrayed all these expenses himself, than in cases where the peril falls at once, as well on the goods as on the vessel, without room to impute fault or neglect to the owner of either. In such a case, then, it can hardly be doubted that the court of king’s bench, to be consistent, would consider every consequential expense for the preservation of the whole, a general average. In Da Costa and Newman, the crew having been dismissed before the vessel was repaired, it became unnecessary to decide by whom a charge for seamen’s wages and provisons was to be borne.

In France the extra wages of a crew, when a vessel puts into port and remains there to avoid an enemy, are a gross average. 1 Bmerig. 556. The same author informs us that all bona fide expenses, to obtain the release of a vessel, become a general average, (Vandenheuvel v. United, Ins. Co., 1 Johns. Rep. 406,) if the property be released ; and, after quoting the same passage from Ricard, which has been cited from Beawes, he observes that in ^France, [*578] the question has • uniformly been thus decided whenever it occurred. Ibid. 631.'

As we are of opinion, therefore, that the sums expended in this way, during a detention which follows a capture, are to be reimbursed ratably by all, the second question may be considered as also disposed of, and we will next Bee,

If, in the present instance, the underwriters on 1ke freight are to pay eight ninths of the sum assessed on that article, and those on the ship the other ninth; or,- whether the former are to pay such part as accrued before the abandonment, and the latter what arose between the abandon ment and the time of her release ?

According to a decision of this court, in the ease of the United Insurance Company against Lenox, the underwriters on the freight are entitled, in virtue of the abandonment, to all the Sophia’s earnings previous to her capture; that is, to eight ninths," and those on the ship to the remaining ninth. Hence a difficulty is supposed to occur to apportion the part of the average which falls on the freight, among those two classes of assurers. The apportionment, although a little more complex, is, nevertheless, easily made. As all freight would probably have been lost, in consequence of the capture, if the property had been condemned, the underwriters on freight and on vessel being severally entitled to eight ninths and one ninth thereof, such was the ratio of their respective interests in this subject while in the admiralty. It therefore follows, that in the same proportion should they contribute, as it respects the freight, to the expenses of reclaiming it, regardless as to how much had accrued antecedently, and how much subsequently, to the day of abandonment. By a restoration of the property, the insurers on freight receive eight ninths, and those on the vessel one ninth. Nothing, therefore, can be clearer than that the expenses, as they relate to this article, must be defrayed by them in like porportion.

The last point submitted respects the matter of calculating the average. Is it to be on the first cost of the cargo or on its value abroad, and how are the vessel and freight ■to be appraised?

*It is difficult to adopt any rule, suffieintly cer- [*579] tain and yet free of every exception.

In an average arising from jettisons, the English practice is, to. regulate the contribution by the clear price which the goods would have yielded at the port of destination, “ it being equitable,” says Abbott, “ that the person whose loss has procured the arrival of the vessel should be placed in the same situation with those whose property has reached its. port in safety.” Abbott, 262. If all the goods, as well those which arrive as those which have been cast into the sea, are to be estimated at their foreign value, the result will be nearly the same, provided there be an equal advance on all, as if the first cost be jesorted to as the standard of their worth. I cannot, therefore, perceive much force in the reason assigned by the learned author in favor of this mode. With regard to vessel and freight, various regulations have been established by different states as to the decree in which they shall be liable to contribute, which only show how impossible it is to find any rule that shall operate universally and with equal justice on the different persons concerned. In England, Marshall, following Molloy, and speaking of jettisons,. says, the ship contributes for her full value at her port of delivery, and the freight pays according to its value at the same place, after deducting seamen’s wages and certain other charges. Marshall, 467. I cannot subscribe to the equity of this mode of adjustment, as it relates to the vessel and freight. Pothier, in his Treatise on Maritime Contracts, also exclairns •against it. “ As the freight,” says he, “ is only due to the owner of a vessel, as a kind of indemnity for her deterioration and expenses incurred by the voyage, it is subject ing him to .a double burden to make him contribute for the entire value of the vessel and of the freight. Our ordinance, “ therefore,” says he, “ has adopted the middle course of making him contribute for one half of the value of each.” Vol. 2. n. 119, p. 411, Other states make the vessel contribute for half her value and one third of her freight. Marsh. 467. As the rule is not accurately defined by the law of England, and the one adduced applies to cases of jettison only, we are at liberty to make [*580] one for ourselves. The injustice of *making the ship and freight contribute for their full value has already been stated. The first will be injured by the voyage, and oftentimes the whole freight received will not be equal to the expenses and disbursements to which the owner has been exposed. Valuing the property at the port of discharge is also liable to difficulty and embarrassment. In many cases of a contribution, the vessel may not reach her port, which would have been the case here if she had been condemned; and if she does, the vessel is very rarely sold there, and some calculation must always be necessary, to exhibit what are the net sales of the cargo. It will, therefore, be a rule less liable to objection, will suit the greatest .number of cases, and not be affected by the fluctuations of markets or other contingencies, and certainly most easy of practice, always to value the goods at • the invoice price, that is, at their first cost, without regard to their price abroad. What value to put on the vessel and freight, to do complete justice, is more difficult, perhaps impracticable. To take their full worth will not do. After the best reflection we have been able to bestow on the subject, we are for valuing the vessel at four fifths of her original cost, reckoning nothing for provisions or wages paid in advance; and the freight at one half of the gross sum agreed to be paid. This rule may be deemed arbitrary; so will any other that can be devised; and yet, perhaps, it will come .as near as any other in producing a contribution in pro* portion to the real interest of each which may be in jeopardy. It is seldom a vessel will sell for more, after a voyage, than four fifths of what she cost, and, of course, the owner is not more than that a gainer by her being released: so, neither will his freight clear to him more, if as much, as one half which is contracted to be paid. The same course of adjustment must be pursued between underwriters.

Upon the whole, therefore, our judgment is that the mariners’ wages and provisions, (Penny and Scriber v. N. Y. Ins. Co., 3 Caines’ Rep. 155,) from the time of the Sophia’s capture to the day of her leaving Ramsgate, (it not appearing that she remained there unnecessarily after her liberation,) be added to the other expenses of reclaiming the property ; and that this aggregate sum be paid by the several underwriters on-„the vessel, cargo and freight. That in ascertaining *the proportion or [*581] amount of their respective contributions, the cargo must be valued at its first cost and charges at the port of departure; the vessel at four fifths of her actual value, at the same place, exclusive of outfits and without regard to any valuation in the policy ; and the freight at one half of what was agreed to be paid at Havre. That the underwriters on freight pay eight ninths of the sum which, on this calculation, shall fall on the freight; and those on the ship the whole of the contribution which shall belong to her, and also, one ninth of that which is to be borne by the freight; and those on the cargo the residue.

Judgment accordingly.

         Expenditures during a voyage, bona fide and necessarily incurred for the common benefit of ship, freight and cargo, seem to fall within the principle of voluntary sacrifices for the preservation of all, and to be subjects of general average. It has been strenuously and frequently urged, that wages and provisions are to be charged exclusively to freight; because the freight is calculated on an estimated expense in these items according to the probable duration of the voyage, and is of course a compensation for their .mount. In case of an overvaluation by circumstances which shorten tl:o passage, there is no refunding; therefore, in case it be, from accidents which prolong the voyage, underrated, it has been thought there ought not to be a-, contribution. But this reasoning proceeds on false grounds; the calculation of freight is made upon the supposed length of an uninterrupted voyage; at all events, the inference has been superseded by the equitable rule of qni sentit commodum, sentiré debet et onus. Therefore, for not only wages and provisions, but for the expenses of loading and unloading, including port charges during a hostile detention, ship, freight and cargo must unite according to their several proportions. Sharp v. Gladstone, 7 East, 24 Nor is it to. cases of capture or hostile seizure that contribution for wages and provisions is confined. On the principle above laid down, they are subject's of general average, from the first moment that a vessel, in consequence of injury, from the perils of the sea, bears away for a port of necessity to refit, to the time of her sailing on the voyage of destination, Walden v. LeRoy, 2 Caines’ Rep. 263, and so are loading, unloading, and all other expenditures induced by the necessity. Henshaw v. Mar. Ins. Co., ibid. 274 The person entitled to contribution may recover from the person liable to con'.tibute, Walden v. LeRoy, 2 Caines’ Rep. 263, and he from his insurer; Barber v. Phœnix Ins. Co., 8 Johns. Rep. 307, though the assured may recover in the first instance the whole of his average loss from his own underwriter, and leave him to recover over. Maggrath & Higgins v. Church, 1 Caines' Rep. 196. This rule, however, cannot apply to an assured on a ship, who is owner of vessel and freight, which are not insured; Jumel v. Mar. Ins. Co., 1 Johns. Rep. 412, because he would be immediately liable in an action by the defendant for the amount of average due from the subjects uninsured.
      For wages and provisions during an embargo laid on by the government of the country to which the vessel belongs, there is no contribution, as they fall exclusively on the freight. M-Bride v. Mar. Ins. Co., 1 Johns. Rep. 431. The law is the same as to the extra sum paid by a charterer by the month, during an embargo at a foreign port. Penny & Scribner, v. N. Y. Ins. Co. 3 Caines’ Rep. 155.

       But this rule does not hold when a vessel is sold at a port of necessity, In consequence of being unable to proceed on her voyage from injuries received by a peril of the sea; the amount of what she bona fide, sold for is then the value bn which to calculate her proportion. Bell v. Col. Ins. Co., 2 Johns. Rep. 98.


author: Per Curiam.

text:
    Lyle against Clason.
    Sending a sealed libellous letter to the plaintiff himself] is not a ground for an action by him. Every letter sent is to be presumed to have been sent sealed. In an action for a libellous letter on the plaintiff] publication must be shown. Stating it to have been by means of its being sent to, and received by, the plaintiff, is bad, and as showing on the record itself] no publication, is good cause for arresting the judgment.
    This was an action on the case for writing and publishing a libel.
    The first count of the declaration, after alleging that the defendant “ wrote and published, or caused to be written and published," a certain libel, proceeded thus: “ Which same libel, in the form and manner of a letter subscribed by the said Isaac Clason, on the-day of-, was-wrong fully, falsely and maliciously sent, and caused to be sent, by the said Isaac Clason to the said Robert Lyle, at, &c. and the same was, by means of such sending thereof received and read by the said Robert Lyle, and thereby published by the said Isaac Clason.”
    Judgment having gone by default, the plaintiff sued out and executed a writ of inquiry, on which the jury gave general damages.

      Hopkins;

    for the defendant, now moved in arrest of j udgment. The first count shows no cause of action. The introductory is to be connected with the latter part, and then the allegation of having wrote “ and published,” &e. is so explained as to show there was not any writing and publishing in legal contemplation. The manner in which the injury complained of was perpetrated, is always stated to have been in the hearing, or some other specific mode of communicating the libel, and of making it [*582] known. East. Ent. 13, Went. Plead, titles *SIander and Libels. 1 Com. Dig. tit. Action upon the Case, (G. 4.) Hall v. Hennesly, Cro. Eliz. 486. Kellan v. Manesby, Cro. Jac. 39. 3 Cro. 199. These cases all turn on the general principle, that the -gist of the action must be stated in express terms, for generals will not do. In assault and battery, prosecutions for conspiracy, &c. the same rule holds. The present action is for damages to compensate for an inj ury sustained in the opinion of others. If others knew not of the libel, no injury could have been sustained, Hicks's Case, Hob. 215. Poph. 139, S. C. Barrow; v. Lewellin, Hob. 62. Edwards and Wooten, 12 Rep. 35.

      Harison and Hamilton, contra.
    The second count states that the letter was sent to France open. A publication may therefore be presumed, especially, as by suffering the judgment to go by default, and an inquiry to be executed the defendant has acknowledged a cause of action. On this reason the latter part even of the first count may be rejected as surplusage, and' the first allegation of publishing held to be confessed. It is allowed that by the English law a verdict would have cured the objection: a question, however, may be made, whether the distinction between verdicts and defaults, established by the English code, is known to our jurisprudence. Our act of amendments and jeofails extends to judgments by confession, nil dicil and non sum informatus. Perhaps, then, it may be consistent with our principles to say that on a default the rule is the same. It is not law to say, the mode in which a libel is made known ought to appear on the declaration. That it was published is enough. So in assault and battery, that he assaulted and beat, without the addition of knives, stoves, &c. is well. Saying he published, is, therefore, saying the libel was made known. Besides, the suit itself shows it has been communicated. The expressing in the count that it was made known to others is super-6 nous. Bell v. Stone, 1 Bos. & Pull. 331. At all events, the second count states a possible publication to the person by whom, sent, and we are entitled to a venire de nova. But it is strange to say the letter was not published, when the very cases adduced, by the counsel for the defendant, show an indictment would have lain. The mere writing libellous words gives a right of action to the party [*583] against *whom they are written. On the execution of the writ of injury, the plaintiff might have abandoned his first count, and proceeded on the second; shis, therefore the court may now well intend to have been done.

      Troup, in reply.
    It is not pretended that after judgment by default, a motion in arrest of judgment may not be made. 2 Burr. 899. Collins v. Gibbs. See ante, 104, Callagan and others v. Hallet and Bowne, If a libel, or slanderous word reach only the ears or eyes of the person libelled or slandered, no action lies. If a man, after receiving a libellous letter, makes it known, he is the publisher, and volenti non fit injuria. To the authorities cited we may add Lake v. King, 1 Mod. 58. In addition .to this, there is no rule better established, than that where a declaration contains good and bad counts, and a general verdict is given, the judgment must be arrested; because .it is not known to which the verdict can be applied.

      fa) Smart v. Dr. Easdale. After verdict, its not being alleged to be “in the hearing” of any one, in an action for words, no cause to arrest the judgment.

      а) In that-case the letter was to a third person, and so staled in the declaration.

   Per Curiam.

We agree with the counsel for the defendant, that the first count is to be considered, when taken together, as stating no other publication than the sending a letter sealed up from the one party to the other. A letter is always to be understood as sealed, unless otherwise expressed, and the law is too-well settled to be now shaken, 'that sending a letter is no publication on which to ground a private suit. The basis of the action is damages for the injury to character in the opinion of others. This cannot arise but from publication. A criminal prosecution for sending a libellous letter is not founded on publication, but on the inducement which it produceth to a breach of the peace. The provocation is the same in the breast of the party libelled, whether the libel be or be not published to the world. The first count, therefore, does not state a cause of action, and the damages being general, the judgment must be arrested, unless the plain-' tiff wishes for a writ of inquiry de nova, which he is entitled to, on payment of costs agreeable to the decision in the case of Hopkins v. Bedle. Ante, 347.

Judgment arrested nisi.

        Hicks's case, in Hob, 215. Poph. 139. S. C. Hob. 62. 12 Co. Ed wards and Wooten, Cro. Eliz. 487. Phillips v. Jansen, 2 Esp. Rep. 625, per Kenyon, Ch. J.; S. P. Wms. n. (2). Lake v. King, 1 Saund. 132. 2 Bl. 1038, 1 D. & E. 110.

         S. P. by Lord Kenyon, in Phillips v. Jansen, 2 Esp. Rep. 625. The contrary is, however, inadvertently stated by Williams, Serjeant, in note (2), to Lake v. King, 1 Saund. 132. But the cases cited do not bear out the position. In the first (Baldwin v. Elphinston, 2 Bl. Rep. 1037,) the court decided that “printing" was prima facie evidence of publishing; and “ causing to be printed " confirmed the fact of publication, because it called “in a third pen-son." The second was the case of a letter written to a third person, Weatherston v. Hawkins, I D. & E. 110, but not applicable to the principle for which adduced. While making this observation, I feel, from conscious inferiority, ashamed at writing, what may seem a criticism, on so truly learned an annotator. See also to the same effect Waistell v. Holman, 2 Hall, 172.

       This is the reason why a libel is a crime. Its falsity is not the offence,


author: Kent, J.

text:
    Livingston against Rogers.
    In assumpsit on mutual promises they must be laid in the declaration aa concurrent. If stated to be “afterwards, to wit, on the same day,’’ it is bad, and the promise a nudam pactum. If, however, there be one good count, and the damages entire, it may be amended. If the court of errors award a venire de nova, it must be sued out to warrant a second trial. If the cause is tried without, it is a defect of record, not amendable, and fatal in arrest of judgment. But a motion may be made for an award of the venire awarded. The court of errors has not authority to award a venire out of this court.
    This cause came before the court on three several motions, which the counsel upon the argument agreed [*584] should *be taken, and considered together. The 1st was a motion by the defendant in arrest of judgment. The 2d one by the defendant also, for a new trial on the ground of a discovery of evidence. The 3d by the plaintiff, for leave to amend his declaration, by increasing the damages laid, so as to cover the extent of his demand.
    The decision of the court was confined to only the first and third motions; and, as it embraces all the points relied on by the counsel, it is unnecessary to give the arguments used.
    In support, of the motion in arrest they relied on two reasons ;
    1st. That the several assumpsits in the three first counts of the declaration (which was on a stock contract) were void, for want of consideration.
    2dly. That there was no record in the office to warrant the circuit record, by virtue of which the trial was had.
    The counts complained of stated the agreement to deliver and receive the stock, and that in consideration the plaintiff had, at the defendant’s request, promised to perform his part, the defendant, afterwards, to wit, on the same day, promised, &c.
   Kent, J.

delivered the opinion of the court. This is a case of mutual promises, where -the one is intended to be the consideration for the other. It is a well settled rule, that in such cases, the promises must be' stated to have been made at the same time. Esp. Dig. 132. Bull. N. P. 146, 147. Hob. 88. 1 Bac. Abr. 267, (n.) in mar. new-edition. Kirby v. Cole, Cro. Eliz. 137. Otherwise, the-one antecedently made will be without consideration, and conseqenti'y, not sufficient to support the other. The question here is, whether a valid promise is laid, on the part of the plaintiff, so as to form a consideration for that on the part of the defendant. The case in Hobart uses the strong language that the promises must be at one instant, or they are nude pacts. It was once held, in Howlett's Case, Latch, 150, that to lay the defendant’s promise afterwards, on the same day, was sufficient; because the court would not allow of any division in a day. But in other respects that case is not altogether applicablé. There the defendant’s promise was in consideration of an antecedent sale and delivery in part; and the point advanced, of not allowing a division in a day, is repugnant to the case of Cooke v. Oxley, 3 D. & E. 653. It was in *that decided, that [*585].' if one party has till a different time of the same day to assent to the agreement, the other part}-- is not held to his prior promise, and the promises are nuda pacta. It is clear, therefore, from this last decision, and from the reason of the thing, that mutual promises, where one is the consideration of the othér, must be made not only on the same-day, but at the same time: they must be concurrent engagements The plaintiff’s promise is here stated to have been made at the request of the defendant. If, instead of a naked promise, the plaintiff had, at the defendant’s request, done an act which was either a damage to himself or a benefit to the defendant, it would have been sufficient to have supported the defendant’s promise. An assumpsit founded on a past consideration of beneficial" service rendered to the defendant at his request is good. Such are the cases of Franklin v. Bradell, Hutton, 84. Church v. Church, T. Raym. 602, and Stile v. Smith, 2 Leon. 111. Vide also Cro. Eliz. 282. The reason that a past consideration, beneficial to the defendant, must be laid to have been done upon request is, that it is not reasonable that one man should do another a kindness, and then charge- him with a recompense. This would be obliging him whether he would or not, and bringing him under an obligation without his concurrence. In many cases a request may be implied from the beneficial nature of the consideration, and the circumstances of the transaction. But in the present case the plaintiff’s promise being laid to have been made upon request, gives it no validity from that circumstance; for the request alone creates not, of itself, any consideration. In addition to the request, there must be something made or done between the parties, beneficial to the one, or onerous to the other. There must either be a consideration executed, or executory. Even one executed will do if' laid to have been done upon request. The plaintiff’s promise in the present case can be valid only because made in consideration of the defendant’s promise; and if the latter was not made at the same time, but at a subsequent period, the plaintiff’s promise was without consideration, and void. We are of opinion this is the just and necessary conclusion in this case; for the promises are not laid as •concurrent, but as made at different times. The [*586] case of * Hayes v. Warren, 2 Stra. 933, is perfectly in point. That was an action on the case upon promises, and after judgment by default, and entire damages, it was alleged, in error from the common pleas to the king’s bench, that on the fourth count, which was for work and labor done, the consideration was laid as past and executed, and not to have been done upon request. Although the work and promise were both laid on the same day, it was held that it must be taken to be a past consideration, as it was stated that “postea” he promised, and the judgment was reversed. The work and labor here were beneficial to the defendant, but not being laid to have been done upon request, the court would not declare it so. They seemed, however, to doubt whether a request might not be inferred from some other expressions in the count, and rather intimated that had the judgment been after verdict, the request might have been inferred. But there appeared to be no doubt that the defendant’s promise, by being laid as being made afterwards, although upon the same day, was to be deemed subsequent, so as to render the plaintiff’s act a past and executed consideration. In a case in Burrow, Pillans v. Van Mierojp, 3 Burr. 1671, this decision is pronounced by Wilmot, J. to be absurd. It was not, however, on the ground that the consideration was not justly deemed as executed, but because, in his opinion, according to the cases mentioned, a past beneficial consideration, with circumstances to imply a request, was sufficient to support the promise. The case, therefore, for the purpose that it is cited, stands unimpeached, and is conclusive on the question. If we consult the precedents of declarations, (3 Morg. Y. Mec. 142; 2 Rich. C. P. 73,) upon mutual promises, they uniformly state the promises to be concurrent; that when the plaintiff had promised, the defendant, in consideration thereof, then and there assumed upon himself. From hence we conclude that the promises in the three first counts of the declaration are not laid as a sufficient consideration for each other: because they are not stated to have been made concurrently, or at the same time, but at different times of the same day. According to the decision in Strange, and according to common understanding, the meanings of the expressions “ afterwards,” and “at the same time,” are totally distinct. The [*587] *last count is good, but the damages being entire, (3 .Wils. 185, Cowp. 276,) the judgment must be arrested. The case of Groshy v. Adams and Belrnny, decided in this court in July term, 1795, and afterwards reversed upon error, is stated also to be in point. The counts in that cause were precisely the same as to laying the time of the mutual promises; and if. the court of errors went upon the same objection that we have been considering, as was suggested in the argument of this cause, that decision is sufficient to uphold this opinion. Though it is not now necessary to consider the want of a record authorizing the trial, which was urged as another ground for arresting the judgment, yet, as connected with the other, it may not be inexpedient to notice it. It appears from the record, that on the first trial a verdict was given for the defendant, and an exception taken to the opinion of the judge. That upon the removal of the cause into the court of errors, the j udgment of this court in favor of the defendant was reversed, a venire de nova ordered, and the record was remitted back to this court. This order of the court above was correct. Hot having the record before them, but only a transcript of it, they could not of themselves award a venire de nova, but, agreeable to the English precedents, they very properly adjudged that the court below should make such an award. This is all that appears before us. This court never has made an award of a venire de nova in pursuance of the direction of the court of errors. The second trial was consequently, without any authority, and in our opinion, altogether null and void. There certainly never was an instance of a new trial had without ■ any award by the court for the same, and without any record of such award, and su<?h new trial held good, merely in consequence of the appearance of the defendant. A defect of record is moveable in arrest of judgment, 1 Roll. Abr. 200, pi. 27, Bac. Abr. tit. Amendment, (D.) 4. Ib. tit. Juries, J. and is a deficiency that is not in any shape amendable Irregularities in the contents, or in the execution of j ury process are amendable. The process is amendable by the roll, and the circuit record is amendable by the issue roll. So mere continuances may be entered after judgment, but no case ever came up to the present. In this there was a trial without any award for it whatsoever, either upon the record or the minutes of the court. The circuit judge had no authority to try a ^second time the matter in [*588] issue on the issue roll, without an award of a venire de nova by the court. There are cases where a trial has been held' void, because the venire was not warranted by the roll, and the cause was tried by a different jury than that which the record directed. Taylor v. Tolwin, Latch, 194; Banks v. Parker, Hob. 76. To hold this amendable in the present case would be unprecedented, and in our opinion, would tend to the abolition of all regularity, form and order in our practice and judicial proceedings. We hold it essential that it should be made to appear that, previous to the last trial, there was an order for a venire de nova, the court of errors not having of themselves made such an order, and not having the authority to do it. As, then, the second trial was without any award of a venire, it was an absolute nullity: the judgment must be arrested, unless the party choose to move to award a new venire. As there is one good count in the declaration, the plaintiff may, if he choose, on the first ground, sue out a venire de nova, and may also amend his three first counts by striking (Maddock v. Hammet, 7 D. & E. 56) out the words “ afterwards to wit,” being the ground on which the judgment ought to Tje arrested. This however, must be on payment of costs since declaring. On the point of amending by enlargement of the damages laid, the court is divided, consequently, the plaintiff in this respect takes nothing by his motion.

Judgment arrested nisi

       See also Porter v. Rose, 12 J. R. 209.

        а) And must be so laid. Comstock v. Smith, 7 Johns. Rep. 87. The latter part of the judgment in which, states a principle not necessary to the decision, and upon which very great doubt may well be entertained. It is very questionable whether, on a moral obligation, a request or consideration can be implied. For though a moral obligation containing legal considerations, the remedy for which has been lost, will support assumpsit on an express promise, it will not ut sernb. on an implied one. Seo a very able note upon this subject in Wendell v. Adney, 3 Bos. & Pull, note (a).

       See 1 Saund. 264, note 1, by Williams, Serjt., who has collected the law on the subject of assumptions laid upon req rest. See also 1 Fonb. 336, and Hob. 106.

      а) By Benson, who was at that time on the bench.

       2 Saund. 101, v. 1 D. & E. 783. 4 Bro. Parl. Cas. 288. 1 Lill. Ent 243. Yelv. 76. Cro. Jac. 206. 1 Salk. 403. 1 Ld. Raym 10. Carth. 319. Skin. 514. 2 H. BL 211.

       Venires are now abolished except in the case of foreign juries. See ! Rev. Stat. 410, sec. 9.

         Consisting of only Kent and Thompson, Justices, no others giving anj opinion.


text:
    Rathbone against Blackford, manucaptor of Murray.
    If commissioners of bankruptcy in their declaring a man a bankrupt, specify the day when he became so, it is not conclusivo as to the time, they having no authority to decide it. If a man go to prison on the first of the month, continue there 60 days, in the course of which lime he is fixed as bail for another, and at the expiration of that period be declared bankrupt on a commission duly sued out, he will be exonerated from his recognizance, and an execution taken out upon it be set aside. In such a case the plaintiff may prove his debt under the commission.
    Motion to set aside a fi. fa. issued in this cause under the following circumstances:
    In July term, 1801, judgment was entered against Murray, for whom the defendant was special bail. In the same term a copáis ad satisfaciendum was returned non est against Murray, and thereupon a copias in debt on the recognizance of bail was issued against Blackford, which was also served and returned on the 8d of July, being the last day of the term. A judgment was obtained against him in the October term following..
    Blackford was committed to prison on mesne process on the 1st of July, 1801, and continued there 60 days without finding bail. A commission of bankruptcy issued against him the 20th November, 1801, and the commissioners declared he became a bankrupt on the 1st of July, 1801; and he *was regularly discharged under the [*589] bankrupt act. Since his discharge the present execution was sued out, and his goods levied upon, under it.
   Per Curiam.

A motion is now made on the part of the defendant to set aside this execution, and to stay all further proceedings against the defendant. He contends that his act of bankruptcy was not complete till the expiration of sixty days after his confinement, or until the first of September, 1801; and that, inasmuch as he was not fixed as Murray’s bail on the 31st of July, 1801, this debt could have been proved under the commission, and that, therefore, the present proceedings are irregular.

This naturally produces an inquiry,

First, as to the time of Blackford’s becoming a bankrupt; and,

Secondly. Whether this demand could have been proved under the commission against him, for if so, it is not denied that he is entitled to relief.

By the first section of the act of congress establishing a uniform system of bankruptcy,” the remaining in prison two months, or more, on being arrested for debt, is made an act of bankruptcy. Blackford went to jail on the 1st of July, 1801, and continued there above sixty days; the plaintiff insists that by relation he became bankrupt on the day he went into confinement, and that not being then fixed for Murray’s debt, the present demand was not provable under the commission. The commissioners, it is true, have undertaken to fix that as the day on which he became a bankrupt; but in this, if they have not exceeded their powers, they have at least done a nugatory act which is binding on no one. They are to declare the party a bankrupt ; but no authority is given to ascertain the day of his beaming so. Nor would it have been discreet to have vested such power in them; for their proceedings being somewhat ex parte, and very summary, so important a fact in which many, who had no opportunity of being heard might be interested, should not, unless absolutely necessary, have been left to be settled by them. Thus, in England, the cominis. sioners being satisfied of the debt, the trading and act of bankruptcy, declare and adjudge, that the party [*590] became bankrupt *generally before the date oi the commission, without a more precise specification of time. Fixing the time even thus far is merely discretionary, and for caution, the English statutes having nowhere directed them to do it; nor is their declaration, as to the period, ultimately binding on any one. Cull. Bank. Laws, 77. Without any doubt, therefore, it is competent to the defendant to controvert this act of the commissioners so far as it respects the fixing on the day of his becoming a bankrupt, and to say that it was not till long after he became so. It becomes necessary, then to determine whether the act of bankruptcy shall relate back to the time of the party’s going to jail, or whether it be only inchoate on the arrest, and not complete till the sixty days expire. English decisions on this point will afford us but little aid, because it is provided by their law, that if a man “ lie in prison two months he shall be accounted a bankrupt from the time of his first arrest21 Jac. I. c. 19, § 1. This i.s thought to be reasonable from a presumption that no man will lie so long in prison without paying his debts or procuring bail, unless he he insolvent at the time of the arrest. Coppendale v. Bridgen, 2 Burr. 819. However strong this presumption, as the legislature of the United States have thought proper not to adopt this provision of the British statutes, we are at liberty to apply a construction of our own. This relation to the moment of committing an act of bankruptcy is considered as one of the hardest cases of which the English law admits, but was thought necessary to secure creditors against fraudulent dispositions of their property by bankrupts, whether by their own acts, or un der color of legal process. Per Lord Hardwicke, in Billion v. Hyde, 1 Ves. 828. It is certain that men in tottering circumstances have too much temptation, as well as oppor tunity, of defeating their creditors of an equal distribution of their effects. But while interposing checks against practices of this kind, we should be careful not unnecessarily to adopt fictions which may operate with severity on other persons as well as the bankrupt: and, therefore where it is impossible any fraud can be practised in creating a debt to injure other creditors, and where the evidence of it is matter of record, and the transaction is evidently bona fide, I would not exclude it from proof under a ■^commission by fictitious relations, provided it [*591] fell due, or the contingency on which it was payable happened, at any time previous to the expiration of the sixty days It is hard that the future industry of a bankrupt, after a fair surrender of his property, should be taxed or burdened with claims which were in a state of maturity at the time of issuing the commission ; and it is equally so on a creditor of this description to be denied any part of his estate, and to be compelled to. trust for pay-' ment to the precarious profits of his subsequent exertions. Without, therefore, prescribing a general rule, which is not necessary, we only say that in this case, the act of bankruptcy should not be regarded as consummated until the lapse of sixty days. We are now to see

Whether the plaintiff’s demand, on this principle, could have been proved against the estate of Blackford.

The 34th section of the bankrupt law provides, “ that the bankrupt shall be discharged from a.11 debts by him due or owing at the time he became bankrupt, and all which were or might have been proved under the commission.” But for this provision the certificate would operate unequally, for if creditors whose debts arose subsequent to the bankruptcy, were permitted to share with those whose demands accrued before, the latter would be exposed to the hardship of having only a dividend under the commission, while the former, beside an equal dividend, would retain a remedy for the residue against the bankrupt himself and his future property. The privilege, therefore of creditora' to prove, and of the bankrupts to be discharged from debts, is wisely made co-extensive and commensurate. 1 Atk. 119. Still difficulties must occur in the application of this rule as to the time when a debt shall be said to accrue. To aid in solving these difficulties, debts have been classed into such as are absolute or certain, that is, payable ceriairily and at all events, and contingent or payable only on the happening of some uncertain event or contingency.

The demand against Blackford is of the latter kind. Murray did not pay the condemnation money, or render himself to the sheriff for the same: Blackford contracted to pay it for him. If the contingency of Murray’s [*592] not paying *the money, or not surrendering himself, had happened at the time of the bankruptcy, the debt as against Blackford could certainly be proved.

■ Without examining-how long after the return of a ca. sa. and of a writ on the recognizance, the bail may surrender, it is sufficient, as it respects the present inquiry, to say, that after the return of non est inventus, on a copias ad satisfaciendum, the condition of the recognizance is broken, and the bail are regarded as fixed in law ; if the principal dies after that day, and before a surrender, they are fixed beyond relief; and were the plaintiff to apply to prove his debt while the bail were in that situation, the assignees would have no right to say that the bankrupt, ex gratia, might yet surrender the principal, and thus defeat the claim. He might with propriety answer that what the bankrupt would do he could not tell, but that until a surrender was made, which he would not compel the bail or his principal to make the possibility of such an event ought not to be alleged against proving an existing demand, which accrued the moment the recognizance was forfeited.

In our judgment, therefore, Blackford was sufficiently fixed as the bail of Murray at the "time of his bankruptcy to confer on the plaintiff a right to prove his debt under the commission against him, and that the fieri facias issued since his discharge must accordingly be set aside with costs.

Motion granted,


text:
    Governeur and Kemble against The United Insurance Company. The Same against The Same.
    If a commander of a convoy make a friendly capture of one of his convoy, it will not exonerate the underwriter, being a case of abandonment as for a total loss.
    These were two causes, the one a policy on the cargo of the ship Indiana, the other on a similar policy on that of the barque Bekkeslcow; verdicts having been rendered for the plaintiffs, two questions were submitted without argument.
    1st. Whether the verdicts for the plaintiffs were agreeable to evidence.
    2nd. Whether they were agreeable to law.
    The material facts in both cases were the same. The vessels and cargoes were Danish, insured ,as such at war premiums, *at a time of actual hostility [*593] subsitsing between Denmark and Great Britain.
    The circumstances on which the question submitted arose were, that these policies were affected for account of a Mr. Murphy, a merchant of the island of St. Thomas, on voyages from thence to the United States. That Captain Barry, commander of the American ship of war United States, being on the West India station, for the protection of the American commerce, was requested by Mr. Murphy, on whose account the insurances were made, to take both vessels under his care, and protect them all in his power. That for this purpose Captain Barry, when at sea took from the masters of both vessels their papers, : gainst their opinion and consent, and put on board of them p*ize masters, ordering them for the United States, as prizes to his ship. That after parting from the ship United States, they were severally captured, the one carried into Halifax, and there acquitted on payment of costs; the other into Bermuda, and there condemned as good and lawful prize.
   Per Curiam.

The conduct of Captain Barry was cer- • tainly not authorized by the request of Mr. Murphy. He acted however, with the best intentions; and his measures appear to me rather to have lessened than to have increased the risks. The acquittal of the one vessel was probably owing to them; for their papers, showing the property to be Danish, must have insured the condemnation of both. I can see no reason, therefore, why the underwriters should not be held to their responsibility, at d am of opinion the verdicts are neither against law n r evidence.

Judgment for the plaintiffs.


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    Delamater against Borland.
    In a suit to recover a stake deposited on a wager, evidence of money due on a note of hand cannot be given. If the declaration be for ten dollars an<j the judgment for fifteen, it is fatal on error from a justice's court.
    In error, on a certiorari, from a justice’s court. The declaration was for ten dollars deposited in the hands of the defendant below as a stake on a wager. The evidence at the trial was of 25 dollars due on a note, upon which five had been paid, and the judgment was for fifteen dollars.
   Per Curiam.

It appears that the plaintiff below declared for one thing, and gave evidence of anothei totally variant. *To this the defendant made an [*594] objection, which was overruled. In the next place, the declaration is for ten dollars, and the judgment for fifteen. Both errors are fatal, and there must be a reversal, with costs.

Judgment reversed.

         The multiplicity of cases from the justices’ courts will excuse the inser> tian of the following determination, by which it was decided that they have no jurisdiction under the joint debtor act.
      Jones and Crawford against Reid.
      January Term, 1799.

        Per Owriam. It is a clear and salutary principle that inferior jurisdictions, not proceeding according to the course of the common law, are confined strictly to the authority given them. They can take nothing by implication, but must show their power expressly given them in every instance.
      The sound rule of construction, in respect to justices’ courts, is accordingly this: to be liberal in reviewing their proceedings as far as respects regularity and form, and strict in holding them to the exact limits of jurisdiction prescribed to them by the statute.
      To apply these principles to the present case:
      The act making joint debtors answerable to their creditors separately and giving a new mode of proceeding, is posterior to the act granting civil jurisdiction to justices of the peace, and makes no mention of them. It directs that process shall issue against the joint debtors in the manner then in use, and if either be taken and brought into court, lie shall answer. This act contemplates, in every instance, a compulsory process on which the defendant is taken and brought into court, and until that be done the court cannot proceed in the cause; whereas, the ten pound act, giving civil authority to justices, intends only a summons in the first instance against freeholders and inhabitants, having families, and if the summons was personally served, and the defendant does not appear, the justice cannot compel him, but is to proceed and try the cause without his either being taken or brought into court. The joint debtor act accordingly gives a power ana jurisdiction different from and unknown to the ten pound act. So in respect to executions the joint debtor act directs that the execution shall be against all the debtors; but shall not, however, issue against the body or sole property of the one not taken and brought into court. Whereas, by the ten _pound act, execution is directed to go against the entire goods and chattels of the person against whom it is granted, and for want of sufficient goods of such person, to take his body. Here are new powers and new modes of proceedings, applicable to the courts of common law, and contrary to the express forms and directions given to the justices’ courts, and in which no mention is made of them.

        We are therefore of opinion that, according to the settled rules of interpretation, justices of the peace have no jurisdiction in the case of joint debtors, unless both are duly served with process, and, therefore, that the judgment in this case must be reversed.

      By the 18th section of the revised act, (Rev. L. N. Y. 509,) in cases of joint debtors where one is not served, jurisdiction is given to justices of the peace, similar to that exercised by the supreme court under the lStl^section vf the statute for the amendment of the law.