author: Mr. Justicé M‘Lean

text:
    Charles L. Williams vs. The Suffolk Insurance Company.
    The government of the United States having insisted, and continuing to insist, through its-egular executive authority that the Falkland islands do not constitute any part.of the dominions within, the sovereignty of Buenos Ayres, and that the seal fishery .at those islands is a trade free and lawful to- the citizens of the' United States, and, beyond the competency of the Buenos Ayres government to regulate; prohibit, or punish; it is not competent for a Circuit Court of the tlnited States to inquire into, and ascertain by other evidence the title of the government of Buenos Ayres to the sovereignty, of the Falk'wad islands.
    When the executive branch of the government, which is charged with the foreign relations of the United States, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department. -
    Where a vessel, insured ■ on a sealing voyage, wag ordered by the 'government of Buettas Ayres not to catch seal off the Falkland islands, and having continued to take seal there the vessel was seized and condemned, under .the authority of the government of Buenos Ayres; the government of the United Stales not having acknowledged, but having denied the right of Buenos Ayres to the Falkland islands; the insurers were liable to pay for the loss of the vessel and cargo: the master, in refusing to obey the orders to leave the island, having acted under a belief that he was bound so to do as a matter of -duty to the owners, and all interested in the voyage, and in vindication of the right claimed by the American government. The master was not-bound to Abandon the voyage under a threat or warning of such illegal capture.
    ON a certificate of division from the Circuit Court of the United States for the district of Massachusetts.
    This was an action brought by the plaintiff, a citizen of the-state: of Connecticut, against the ' Suffolk Insurance Company of Boston, Massachusetts, to recover a loss, on part of the schooner, Harriet,- and part of her cargo, they having been insured by the defendants. There was a similar action against the defendants to recover losses sustained on the'schooner Breakwater and her cargo. Both the cases were brought from the Circuit Court of Massachusetts, on certificates pf division of opinion of the judges, of the Circuit Court. '
    The cases were stated in the record as follows:—
    “ These were actions of assumpsit on policies of insurance, dated' the X9th of August, 1830, whereby the plaintiff caused to be insured by the defendants for nine per cent, per annum premium, warranting twelve per cent, ‘lost or not lost,’ forty-mine hundred and nineteen dollars on fifteen sixteenths of schooner Harriet, and eighteen hundred and seventy-five dollars on board said vessel, at and from Stonington, Connecticut, commencing the risk on the 12th day of August, instant at noon, to the southern hemisphere, with liberty to stop for salt at the Cape de Yerd islands, and to go round Cape Horn, and to. touch at all islands, ports, and places for the purpose of taking seals, and for information and refreshments, with liberty to put his skins on board of any other vessel or vessels until she returns to her port of .discharge in the United States; it being understood that the value of the interest hereby insured, as it relates to this insurance, is not to be diminished thereby. It is understood and agreed, that if the Harriet should not proceed"south-easterly of Cape Horn on a voyage towards the south Shetland islands,, and there be no loss, then the premium is to be six per centum per annum, the assured warranting only nine per cent.: vessel valued at five, thousand dollars; outfits valued at two thousand dollars,
    “ There was a similar policy underwritten by the defendants for the plaintiff on the same day, for the like voyage in all respects, of thirty-five hundred dollafs, on the schooner Breakwater, and two thousand dollars on outfits on board, at the- same premium; the vessel being valued at thirty-five hundred dollars, and the outfits at two thousand dollars, upon which, also, an action was brought.
    “,The declaration upon each policy averred a total, loss, by the seizure arid detention of one Lewis Vernet and other persons, pretending to act by the authority of the government of Buenos Ayres, with force and arms.
    “ The causes came on to be heard together, by the Court, upon certain facts and statements agreed by the parties; the parties agreeing that the verdict should he rendered by. the jury for the plaintiff, arid for the defendants; according to the opinion of the Court upon the matters of law arising upon those facts and statements; and the cause was argued hy C. G. Loring for‘the plaintiff, and by Theophilus Parsons for the defendants. It appeared from these facts and statements, that both of the vessels insured were bound on a sealing voyage, arid proceeded to the Falkland islands in, pursuance thereof; and were there both seized by one Lewis Vernet, acting, as governor • of those islands, under the appointment and authority of the government of Buenos Ayres. The Hárriet was seized-on-the 30th of July, 1831, and was subsequently carried by the captors to Buenos Ayres; where certain proceedings' were had against her in -the -tribunals, and uhder the sanction of the government of Buenos Ayres. She has never been restored to the defendants, but has been condemned for being engaged in the seal trade af the Falkland islands.
    “The Breakwater was seized at the.islands,on or about the'18th day of August, 1831, and was afterwards re-captured by the mate and crew, who remained' on board; and was by them brought home to.the United States; and after her arrival was libelled for salvage in the district Court of Connecticut district, and salvage was aw'arded of one-tbird part of the- proceeds of vessel and property.
    “ Copies of the orders and decrees of the Courts of Buenos Ayres respecting the seal fisheries, of the appointment, of Vernet as governor. of the .Falkland islands, of the proceedings against the Harriet, of the correspondence of the American government with the Buenos Ayrean government, relative to the jurisdiction of the -Falkland islands; were produced and read, de bene esse, in.the ease.”
    The following oints and .questions occurred in the case, on which the judges ot the Circuit.Court were divided in.opinion; and they were stated and ordered to be certified to, the Supreme Court to¡ be finally decided. — =

      1. Whether, inasmuch as the American government has insisted and does still insist, through its regular executive authority, that-the' Falkland islands do not constitute any p rt of the dominions within the sovereignty of the government of'.Buenos Ayres, and that the seal fishéry át those, islands is a trade frée and lawful, to. the, citizens of the United States, and beyond the competency qf the Buenos. Ayrean government to regulate, prohibit,-or punish; it is competent for the Circuit Court in this cause, to inquire 'into and ascertain by other “evidence, the title of said government of Buenos Ayres to the sovereignty of the said Falkland islands; and if such evidence satisfies the Court, to decide against the doctrinesand claims set up and. supported by thé American government on this subject; Or whether the action of the American government on this subject is. bincjing and conclusive on this Court, as .to whom the sovereignty , of those islands belongs.
    2. Whether, if the seizure of the Harriet, by the,authority oi toe. Buenos Ayrean government, for carrying on the s'eal fishery at the Falkland islands, was illegal and contrary.to the law' of nations, on account of 'the said islands not being within the territorial sovereignty of the said Buenos Ayrean government, and-tbe master of the Harriet had warning from the government of the said islands under the government of Bueñps Ayres, that he,should seize the said Harriet' if she should engage in the seal fishery, and after 'such warning, the •piaster of the Harriet engaged in such seal fishery, and the Harriet Was illegally seized and condemned therefor, thp loss by such seizure and condemnation was á loss for which the plaintiff is entitled to recover in this case; if the. master of the Harriet acted, in engaging in such seal fishery bona fide, and with a sound and reasonable discretion, and under a belief that he was bound so to do, as a matter of duty to his owners, and all others interested in' the voyage, and in the vindication of the rights recognised and claimed by'the American government'; of whether he was bound by law to abandon the voyage under sqch a threat and warning of .such illegal seizure.
    The case was submitted to the Court by Messrs; C. G. Loring and E. G. Loring for the plaintiff; and-by Mi Parsons for the defendants.
    The printed argument for the plaintiff coptained a full statement of the case.
    Mr. Parsons, for the defendants, contended,--^-
    • 1. That the Malvinas are rightfully in possession of Buenos Ayres; and that historical evidence, and established principles of the. law of nations show this to be so.
    2. That however this may be,, the Courts of this country will not decide this question against Buenos Ayres, unless authorised to do so by a formal act of our government; Buenos’Ay res being á nation friendly to us, claiming the Malvinas, certainly .under colour of right, and claimipg and exercising that dominion for many yeajs.

      3. That there is,no such act-of our government. An American sloop of war, (the Lexington, captain- Duncan,) arriving- at Buenos Ayres, soon after- the seizure of the Harriet and Breakwater,'proceedéd to the Falklands, and broke up the establishment by violence. The government, of Buenos Ayres complained-urgently of this, and a correspondence ensued, wherein our. Consul, and our Charge d’Affaires at Buenos Ayres, and our Secretary of State, took a part; but the question.remains unsettled between the countries; — and,
    4. By the constitution of this country, it is of vital importance that our Courts call nothing an act of the government but one which passes through.the forms- of the Constitution, and has the force and sanction of regular enactment. No analogies drawn from European nations (if any there be) .can- apply-; because the Judiciary holds no such place, and is intrusted with no such dirties in other nations.
    It would seem difficult to doubt, from the historical evidence,- and the plain principles of territorial and international law,' that- the ancient government of Spain, and the government of Buenos Ayres as their successor, had’-a right, as • owners of the'islands and the coast, to regulate the fisheries thereon, and within a reasonable distance of their shores; and' that the decrees actually passed are therefore justifiable by the laws of .nations; and, consequently, fishing in. violation of those decrees is- an illicit and prohibited trading within the policy.- It follows inevitably that a seizure for that cause is not protected by. the policy, though the condemnation may be informal.
    If it be said, that the trespassers upon these islands and their fisheries appear to have been notified and threatened before, and then permitted to transgress with impunity, and that punishment for the offence-was therefore unlawful; there is surely an obvious and sufficient answer to this. It is, that after mild means had been carried so far as to prove them ineffectual, more positive measures were resorted to. This is a plain and fair statement of the whole case upon this point; and if the whole testimony were, examined, and the indisputable facts of the case considered, they would fully confirm this view. Will the Court then say that forgiveness, with renewed prohibition ánd caution, implies'perpetual forgiveness ? That if the first offence, or any single offence, be pardoned by a nation, ■ or one of its authorities, it shall never be lawful again to punish the offence; how Often soever it be repeated, or howsoever aggravated the circumstances by which if is attended?- It can hardly be expected that such a principle as this can receive the sanction of this "Court; for it seems not more repugnant to law and justice, than to mere humanity.
   Mr. Justicé M‘Lean

delivered the opinion of the Court:—

Two -actions were commenced by the plaintiffs against the defendant, in the Circuit Court of the United States for’ the state-of Massachusetts,.on policies of insurance dated.19th August, 1830; whereby the plaintiffs caused to be insured by the defendants, for nine per centum per annum premium, -warranting twelve per centum lost or. not lost, forty-nine, hundred and nineteen dollars on fifteen-sixteenths of schooner Harriet; and eighteen hundred and seventy- • five dollars on board, said vessel, at and from Stonington, Connecticut,'commencing the risk on the lgth'August instant at noon, to the southern hemisphere; with liberty to stop for salt at the Cape, de Verd islands, and to go round Cape Horn, and to touch at all islands, ports and places, for the purpose of taking seals, and for information-arid refreshments;. with liberty to put -his skins on board of any other vessel or vessels, until she returns, to her port of discharge in the United States: it being understood that the value of the interest hereby insured, as it relates to this insurance, is not to be' diminished thereby, &c. • ...

On the same day there was a similar policy of thirty-five hundred dollars on the schooner- Breakwater; and two thousand dollars on outfits on board, at the samé premium, &c.

.. And on the trial the following points were raised in the case, on which the opinions of the judges were opposed, and on which the' case is certified.to this Court-.

.4. Whether, inasmuch as the American government has- insisted, and does still insist, through its regular executive authority, that the Falkland islands do not constitute any- part of the dominions within the -sovereignty of the government of Buenos Ayres; and that the seal, fishery at those islands is a trade free and lawful to the citizens of the United States, and beyond the competency of the Buenos Ayres government to regulate, prohibit, or punish; it is competent for the Circuit Court-in this cause, to inquire into, and ascertain by other evidence, the title of said govefnment of Buenos -Ayres to the sovereignty of the said Falkland islands; and if such evidence' satis-, fies the Court, to decide against the doctrines and claims set up. and .supported by the American government on this subject: or whether the action of the American-government on this subject is binding and conclusive on this Court, as to whom the sovereignty of those islands belongs.. , . .

2. Whether, if the seizure of the Harriet by the authority of the Buenos Ayrean government,.for carrying on the seal fishery at the Falkland islands, was illegal and contrary to the law of nations, on account of-the said islands not being within the territorial sovereignty of. the said Buenos Ayrean government; and the master of the Harriet had warning from the governor of the said islands under the government of Buenos- Ayres, that he should seize the said. Harriet if-she should engage in the seal fishery; and after such warning the master of the Harriet engaged- in the seal fishery, and the Harriet was illegally seized and condemned therefor; the loss-by such seizure and condemnation was a loss for which the plaintiff is entitled to recover in this case, if the master of the Harriet • acted-.in engaging-in such seal fishery bona fide, and with a sound and reasonable discretion, and undei a belief that he was bound so to do as a matter of duty to his owners and all others interested in the voyage; and in the vindication of the rights recognised and claimed by the American government: or whether he was bound by law to abandon the voyage under ¿rich a threat and warning of such illegal seizure..

.. As the fact is stated in the first point certified, that, there is a com troversy between this government and that of Buenos Ayres, whether the jurisdiction is rightful, which is assumed to be exercised over the Falkland islands by the latter.; and that this right is asserted on the one side and denied by the other, it will not be necessary to look into the correspondence between the two governments on the subject.

To what sovereignty any island or country belongs, is- a question which' often arises before Courts in the' exercise of a maritime jurisdiction ; and also in actions on policies of insurance.

Prior to the revolution in South America, it' is known that the Malvinas, or Falkland islands, were attached to the vice-royalty of La Plata, which included Buenos Ayres.- Arid if this were an open question, wé might-inquire whether the jurisdiction over these islands did not belong to some other part, over -which this ancient vice-royalty extended, and not to the government o.f Buenos Ayres: but we are saved from- this inquiry by.the attitude of our own government, as stated in the point certified.

. And'can there be any doubt, that when the executive branch of the government, which is charged with our foreign relations, shall in its correspondence with a foreign nation assume 'a fact in regard to the sovereignty of. any island or country, it is conclusive on the judicial department ? And in this view it is not material to inquire, nor is it the province of the Court'to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functioris, he has decided the question. Having doné this under the responsibilities which belong to him, it is obligatory on the people and government of the Union.

. If this were not the rule, cases rriight often arise in which, on the most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. By one- of these departments, a foreign island or country might be considered as at peace with the United States; whilst the other would consider it in a state of war! No >vell regulated government has ever sanctioned a principle so unwise, and -so destructive of national character.

In the cases of Foster vs. Neilson, 2 Peters, 253. 307, and Garcia vs. Lee, 12 Peters, 511, this Court .have laid down the rule, that the action of the political branches of the government in' a matter that belongs to them, is conclusive.

And-we think in. the present case, as the executive, in his message,, and in his correspondence with the government of Buenos Ayres, has denied the jurisdiction which it has assuiried to exercise.. oyer the Falkland islands; the fact must bé taken and acted on .by this Court as thus asserted-and maintained.

' The decision of the first point materially affects the second, Which turns upon the conduct of the master.

If these islands are not within the jurisdiction of the Buenos Ayrean government, the power assumed and exercised by Governor Vernet was unauthorized, and.the master was not bound to regard it. He was not necessarily to be diverted iron} the objects of his voyage., and the exercise of rights which belonged ip common to the citizens of the United States by an unauthorized threat of the seizure of his vessel. He might well consider the prohibition of Vernet as influenced by personal and sinister motives, and would not be enforced. If the principle were admitted, that the assured were’ bóund to regard every idle threat of any individual who might assume to exeróise power, as in this case, it would be most injurious, and in many cases destructive, to commercial rights.

The inquiry is, whether the master, under all the circumstances of.the case, acted in good .faith, and with ordinary prudence.

If he acted fraudulently, he was guilty of barratry; and the underwriters are discharged. - ^

In 4 Taunton, 858, Mr. Justice Gibbs, in giving the opinion of the Court, lays down the true rule-. “ The'master,” says he, “ being asked why he had not British colours and British papers, said, I cannot have them, because I have not a British register.' He stands on his strict rights. He says, I will do nothing- to endanger my owners; I am a neutral, and I have a right to enter your port. .The master really communicated the true facts of the case when she was searched; and says,. I cannot go off, because of my charter-party The other says: Then I will seize you. We think, then, each party stands on his strict rights; and we are now to consider the strict .point of law, not the question whether it would have been more prudent for him to go to Tercera, but whether hé acted bona, fide.”

And so in the-present case, the question is not whether the master of the Harriet would-not have acted with more prudence had he yielded to the inhibition of Vernet; but whether, in placing himself upon his-strict rights, he did not exercise a proper discretion.

He violated no regulation which he was bound to respect. In touching at the Falkland islands, for the purpose of taking seal} he acted strictly within the limits of his commercial enterprise; and did not voluntarily incur a risk which should exonerate the insurers.

It was the duty of the master to prosecute his voyage, and attain the objects of it, for the benéfit' of his owners: and, hi doing this,. he was not bound to abandon the voyage by- any threat of illegal seizure. We think, therefore, that the underwriters are-not discharged from .liability, by the conduct of the master, as stated in the second point.

The other case depending upon the same principles, the same certificate will be affixed to that case.

This cause came on to be heard on the transcript of the record from the Circuit Court of thé United States, for the district of Mas-. saehusetts, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were' certified to this Court fpr its opinion, agreeably, to the act of Congress in such case made afid provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, 1st, That, inasmuch as the American government has insisted and still does insist, through its regular' executive authority, that the Falkland islands do not constitute any part of- the dominions within the sovereignty of the government of Buenos Ayres, the action of the American government on this subject is binding on the said Circuit Court, as to'whom the'sovereignty of those islands belongs.- And, secondly: That the seizure .and condemnation of the Harriet was,.a loss for which the plaintiff is entitled to recover in this case, under the-circumstances as stated in the second point certified.- Whereupon, it is ordered and adjudged by this Court that it be so certified to the .-said Ciicuit Court, accordingly.


source: Caselaw Access Project

author: Mr. Justice M'Lean

license: Public Domain

text:
    Barrington Anthony, Marshal of the United States, Plaintiff in error, vs. Cyrus Butler, Defendant in error.
    A mortgage was .execute!! by D. G. as the agent of the Union Steam Mitt Company, conveying to the mortgagee certain lands in Rhode Island, with a wpollen mill and other buildings, with the machinery in .the mill. D. G. was, and had been the general agent of the company,.and as'such, bad made all purchases and sales for the company, and the mortgage, was executed by him, with the consent and authority of the persons, who at the time of its execution were members of the company. The machinery, and other movables, had been taken in execution by the marshal of Rhode Island, under art execution issued on a-judgment obtained after the mortgage against the company. The Court held, that although.the mortgage was not valid as the deed.of the corporation, it Was sufficient to convey a title to the mortgagee in the machinery; and that he could maintain an-action of replevin for them against the marshal.
    The mortgage was recorded by the town clerk of the place, where the property was, he. being tire proper officer to record such instruments, under the statute of Rhode Island. He kept two books,, in one. of which he recorded .mortgages, which included real es-. tate; turd in the other, mortgages upon personal property only. The mortgage in this case, was first recorded .in the book kept for recording mortgages on real estate. And he gave a certificate, “ lodged.in the town clerk’s office to record, November 20,1837, at 5 P. M,, and recorded same day, in the .record of mortgages in East Greenwich, book No. 4,” &e.- The Court held that this certificate was properly- received in evidence, in the Circuit Court.

      It is a. well settled rule, though a very iechnical one, that one partner cannot bind his co-partners by deed. . And it is equally well settled that one partner may 'dispose of the personal property of the firm. ■ One partner may bind his copartner by deed, if he is’ present, and assent to it. The seal of one partner, with the.assent of the copartner, will Bind the firm.
    -Where a statute requires that’ mortgages-oil personal property shall be recorded in a book to be specially kept for the purpose, and says nothing as to the book in which mortgages on real and personal property shall be recorded, and in the conveyance the personal and real property, is so blended as to be inseparable; to require a double record would seem to he an unreasonable construction of the statute. The record of the mortgage in the book kept for recording mortgages on real estate, is within a fair construction of the Rhode Island statute.
    ERROR, to the Circuit Court of the United States, for the district of Rhode Island.
    The'defendant in error, Cyrus Butler, in Í838, instituted an action of replevin against Barrington Anthony, the -marshal of the United States, for the district of Rhode Island, to recover from him certain machinery, and ■ articles' used in the manufacture of goods, which had been the'property of the Union Steam Mill Company, and which were claimed- by the plaintiff, Under a mortgage alleged to have been executed to him by the Union Steam Mill Company, on the 20th of November, 1837, to secure .to him the payment of sixteen thousand four hundred and fifty-nine dollars, loaned to the company, by Cyrus Butler.
    The defendant in -the Circuit Court, the marshal of the district of Rhode Island, ordered the taking of the goods .under an execution, •issued out of the Circuit Court of the United States for that district, on a judgment against Daniel Greene, William P. Salisbury, ■ and Rufus W. Dickinson; which execution had been so levied upo.U, the gbods' as of .^aid Greene, Salisbury, and Dickinson, for the purpose of satisfying the debt and costs.
    The causé was tried, before a jury, in November, 1838, and a verdict, and judgment were rendered for the plaintiff. • The defendant prosecuted this writ». error.
    The matters, of law arising in the case were presented ón a bill of exceptions, taken by. the counsel for the defendant on the trial.
    The bill óf exceptions stated' that the' plaintiff in support of his title to the articles named in the replevin, produced a certain, deed dated" 20th November, 1837, executed by one Daniel Greene, as agent for the' Union Steam Mill .Company, the said company being a corporation, conveying the property of the company, the articles mentioned in the replevin included, to the plaintiff on mortgage; and proved the execution .of the. deed, and produced the act oi the legislature of Rhode Island, .incorporating the company, and produced the record of the corporate proceedings of the' company, having duly proved the said .proceedings. The execution, of the deed of 20th No "ember, 1837,7was in the following form. . “Union Steam Mill Company, Daniel Greene, [i. s.]” The plaintiff also produced and read in evidence, a deed dated 18th May, 1837, from William P. Salisbury to Daniel Greene, by which all the property of said Salisbury, in the Union Steam Mill Company, was conveyed to’ Daniel Greene. The plaintiff , also proved that Daniel Greene was, and had been agent, from the time of the formation of the company; and that the deed to the plaintiff was executed by him, by, and' with the consent and authority of'the company.
    ' The plaintiff- insisted that tlie deed of Daniel Greene was the corporate deed of the Union Steam Mill Company, and .conveyed to him the articles mentioned in the replevin; and he further insisted, that.if it was not their corporate deed, it was sufficient to convey a valid title to the property, tq him, ina smuch as the said deed was made and executed by, and With the consent of those, who at the time werq members of the company; and that Daniel Greene, as the general agent of the-company, was authorized to convey the articles named in the plaintiff’s writ.
    The defendant objected to the deed as inoperative, the Union Steam Mill Company having had no corporate existence at'the time it was executed-, and the Court.decided that the corporate existence was pot so proved as to allow the deed to be given in evidence, as the deed of the corporation; but if inoperative, as the corporate deed, it was sufficient and competent to. convey the articles in the replevin to the plaintiff. To this opinion the defendant .excepted.
    The defendant also objected tq the deed; as it did not appear to have been recorded' according to the law of Rhode Island regulating the recording of mortgages on personal property, prior to the defendant’s levy on the* goods.
    . Oh the back of the deed was the endorsement of the town clerk of the place -where the property was situated, stating that the deed had béen “lqdged iñ the town clerk’s office, to record, November 20, 1837, at 5 o’clock, P. M., and recorded same day in the r Cord' of mortgages in East Greenwich, book No. 4,-pages 43 0,-and 51.” The town elerk.is the proper recording officer, by the laws of Rhode Island
    The defendant’s counsel objected to d sufficiency of the certificate as evidence that the deed was duly recorded, and pr'oducéd evidence that there was a book- kept by the town clerk, in which mortgages-'of personal property .only, were recorded; and other mortgages, which included real estate, were recorded in other books, kept in the office; and after recording the deed in the book of mortgages of‘real estate on the 20th November, 1837, the-deed was taken by him to-the office of .the toW-n clerk, on the 14th November, 1838, and was recorded in the book kept for mortgages on personal property. The Court decided that the certificate was sufficient evidence .that the said deed was duly recorded. The defendant excepted.
    The case was submitted to the Court on printed argr ments, by Messrs. Pearce and Turner,and Mr. Atwell, for the plaintiif -in error; and by Mr. Ames, Mr. Tillinghast, and Mr. Green, for the defendant.
    For the plaintiff in error it was argued. — The counsel for the plaintiff in error say the deed in question is either the deed'of the party executing it, or it is. no deed. Two of the necessary incidents to a deed, says Lord Coke, (2 Thomas’ Coke Lit. 272,) are a person able to contract, and by a sufficient name. In the deed offered in evidence by the defendant ip. error, in the Circuit Court,, thé grantor is a corporator, described as such, and using the name and style of the corporation.
    Individuality is an attribute of corporations as well as of natural persons. Dartmouth College vs. Woodward, 4 Wheat. 636. 1 Kydon.Corp. 15. 4 Serg. and Rawle, 356. The distinction between those bodies and natural persons, is distinctly marked. ,1. Corporations are limited in their powers by the terms of their creation. Beatey vs. The Lessee of-Knowles, 4 Peters, 152. 2. By .the personal irresponsibility of their members. The United States Bank vs. The Planter’s Bank, 9 Wheat. 907. 2 Serg. and Rawle,. 311. 9 Mass. ,Rep. 355. 151 Mass.'Rep. 505. 16 Mass. Rep. 9. -
    The interest of corporators in the capital stock of a corporation is different from that of ordinary co-partners. Wood et. ál. vs. Dummer et al. 3 Mass. Rep. 38.
    The deed was made as the conveyance of the. corporation, and was so received by the grantee. If there was no such corporation in existence, the persons voting and acting as corporators had no legal powers, and there .was no one competent to act as a grantor in the deed.
    The deed is made, and intended as made, not by persons acting in their natural capacities, and as distinct individuals, under the gener'al laws of the land; but by persons acting under the artificial characters of corporators, with the limited and restricted rights and powers conferred upon them by their charter of incorporation. If then the party by whom the deed is supposed, from its language and evident intent, to have been made and executed, had no legal existence — was., not in- esse; by what rule of.law is it that the deed can be held to enure to the grantee as a.- deed of another .person, possessing a distinct individuality, and different legal attributes ? '
    The maxim “quando quod ago, pon valet ut ago; valeat quantum valere potest,” under which Courts give to deeds a legal effect, different from the technical effect of the. words of the instrument itself, does not apply to. this case ; because that rule is only applied to the character of the estate intended to be granted,.in order to effectuate the intention of the parties, and not to-the character of the parties themselves. 4 Cruise Dig.-298 — 303, and cases there Cited.
    The deed cannot be the deed of the. copartnership, and .thus enure to the benefit of the grantee; because it'is under seal, and is executed by one. partner only in the name of the whole, and without a. special authority for the purpose under the seal of the corporation. Harris vs. Jackson, 7 Term. Rep. 207. 4 Term Rep. 313. -Their subsequent assent to it was as corporators; and not as copartners. At the . tried, it . did hot' appear that , the deed had been recorded prior to thefievy on the. property, according to tfye act of the general assembly of Rhode Island, passed February 1, 1834.
    This statute is remedial in its character, and was intended by the legislature .to. remedy the mischief occasioned by.the rule,of law as expounded by the Courts, that .possession by the vendor of personal property, (if such possession was- consistent with- the deed,) was not evidence of fraud. The construction of such a statute should be liberal, to prevent the mischief; or, as said by Lord Coke, the judges shall put such a construction on a statute as may redress the mischief, guard against subtle, inventions and evásions for the continuance of 'the mischief, pro private commodo, and give life and strength to the remedy, pro bono publico, according to the true intent and meaning of the law. Heyden’s casé, 3 Rep. 7. Pierce vs. Hop-pin, 1 Strange, 253. The full result contemplated by this statute cannot be reached, without the record is made in the manner pointed out in the act. The manner of record is, therefore, an. essential part qf,the'law. See State Laws, 835.
    The certificate of. the town clerk was not in itself sufficient evidence that the mortgage in,question had been recorded, in conformity'with the provisions of law; because the expression “ book of mortgages,” used in said certificate, was ambiguous in its character, and might refer to mortgages of real' estate, as well as to-personal property. This ambiguity- being explained by evidence, it is apparent that the actual record was not made in conformity with the form prescribed by the statute, to wit, in a book to-be kept.by-the town clerk,, for-the especial purpose, of recording therein mortgages of personal property. This form is imperative. 2 Inst. 388. 1 East, 64, -It is of the essence of the statute,-and therefore imperative. 1 Burr. 447. .And it is not directory only, for it makes void the mortgage, when not recorded. Rex vs. Búnningham, 8 Barn, .and Cres. 29.
    Although it is the duty of the clerk' to record the mortgage, yet the party claiming under it is affected by the misfeasance or nonfeasance of that officer in the performance of his duty. - Johnson vs. Stagg, 2 Johns. R. 510. Beekman vs. Frost, 18 do. 544. Frost vs. Beékmán, same case, 1 Johns. C. R. 288. The New York statute is in its terms like the Rhode Island statute. 18 Johns. R. 553.
    The subsequent récord of the mortgage in the. proper book, under date of the 14th Nov. 1838, was made after the levy by thfe mar-' shal, and was consequently'void as to that levy. -
    That record cannot relate back to the time when the deed was lodged to be recorded, (Nov. 20, A. D. 1837,) for the statute's of Rhode Island make a manifest distinction between mortgages of real and personal property; making the first valid as to subsequent purchasers when recorded or lodged to be recorded, and the second valid when recorded only. Laws of Rhode Island, 202 and 835. And it is the further policy of the- state of Rhode Island, that no deed, when once left to be recorded, shall be taken from the office of the clerk until the same shall have been by'him duly recorded. Laws of R. 1,-878.
    For the defendant- in error, it was contended, by Messrs. Ames, Tillinghast, and Green, that the deed of Daniel. Greene, of 20th November," 1837, executed by Greene as the agent, and in behalf of the company,, was fully competent to convey the articles in contest between. the parties to this suit. , The Circuit Court, decided that as the legal existence, of the corporation was not'shown,, it was not proved to be the deed of the corporation; but as the property com veyed -was that of the individuals.représented by Mr. Greene, and the deed was made with the" individual approbation of the owners* it was sufficient. This decision was correct. The individuals composing the corporation were, in partnership, transacting business as partners, when the charter "was granted. By the charter, the property vested in. the corporation; and each of the ■ corporators are made individually liable for the corporate debts. Mr. Greene was the agent before and after the charter was granted. .
    If the Union Steam Mill Company were not a.corporation, they "were a copartnership. If the. property in question did not belong to them as' a corporation, it belonged to them as. a copartnership; This copartnership acted by an agent, and always had so acted. The deed in question was executed by this agent* with therassent of'all the. copartners. .
    ■The deed in form purports to be executed by the corporation \ but if in law there was no corporation, and the property in question was held by the corporators as copartners, still the deed is competent, as their individual act, to convey 'the .property.

      It is not material whether the company held the property as a copartnership, or as a corporation. If the deed was executed by the agent of the company, with the assent of all the stockholders or copartners, they are hound by it. If they, or an attaching creditor, could be allowed tó set up their title as copartners against the present deed, the charter would become an instrument of the grossest fraud. They hold themselves out to the defendant in error as a corporation, and as such, owning the property in question, and having legal authority to convey the same’to him by deed of mortgage. Upon the faith of these representations, the defendant in error parts with his-money, and takes his mortgage. He is then told that' the parties who made the mortgage in the character of corporators, were copartners; and that, as they owned the property as partners and not as a corporation, he takes nothing by his deed.
    It is not necessary to. pass personal property that the- conveyance shall be by deed. It may pass by an ordinary bill of sale, or bill of parcels. In this case, the transfer of the goods by sale was made, by Daniel Greene, and this mortgage was assented to expressly by every member of the company. Cited, Strod vs. Wyse, -7 Conn-. R. 214. Coe vs. Talcott, 5 Day’s Rep. 88.
    There is a large class of-cases, in which deeds not being competent to effectuate the intent of the parties in the -form in which they have been drawn, have been construed to operate. in another way in-order to effectuate that intent. Thus it has been, decided that a deed which was intended to operate as a lease and' release, or bargain and sale, but could not take effect in that manner; should operate as a covenant to stand seized. 4 Cruise Dig. p. 299, sec. 31.' A deed intended to operate as a bargain and sale, but which was void for want of a pecuniary consideration, has- been held to operate as a confirmation. Ibid. sec. 32. See als,o Roe vs. Tranmef et al. 2 Wilson Rep. 15. Wallis vs. Wallis, 4 Mass; Rep. 135. Marshall vs. Fish; 6 Mass. Rep. 24. Cox et al. vs. Edwards, 14 Mass. Rep. 491. -I Hen. Black, 313. Vere vs. Lewis, 3 Term Rep. 182. ' Gibson, vs. Hunter, 2 Hen. Black. 187.
    It is said by the plaintiff in error, that if the’Union Steam Mill Company had.no corporate existence, there was. no' grantor to the deed. ■ This would be allowing a party to take adyantage of his own fraud. A corporate deed is the form in whieh the owners of the property- chose to convey it, and they are bound by such a deed-in the same manner that they would have been -had they chosen to convey it under assumed names. If a man executes a bond or any other instrument under an assumed name, he is bound- by it in the .same manner as if he had executed it in his true name-.
    The next question is, was the deed sufficiently recorded ?
    The plaintiff in error objects that this mortgage deed should have been recorded in a. book for the record of mortgages of personal property only. This question depends on the true construction of the act of the assembly of Rhode Isiand, passed January, 1834. ■
    Thq defendant, in error contends that this statute, does not apply to a mortgage, comprehending real and personal estate; the personal being incident to and connected with the real, both the real and personal forming an entire estate. By such a deed the personal would pass as incident to the real, without being mentioned. If A. conveys his cotton mill to B., the machinery in the mill will pass as much as the mill itself, or' the land on which it stands, or the dams and flumes which belong to the mill, if it be ,a water mill. Se.e Whitney ps. Olney et al. 3 Mason Rep. 280. Gennings vs. Lake, Croke Car. 168. Boocher m.Samford, Croke Eliz. 113. Yates vs. Clincard, Croke Eliz. 704-. Doe vs. Collins, 2 Term Rep. 498.
    The mortgage-to the defendant in error was “of all the machinery in the said factory.” The construction of the law relative to recording mortgages, which is claimed by the plaintiff in error,would make this'deed essentially'different from what was intended by the parties to it. It was a mortgage of real estate, carrying with it, as appurtenant to the real-estate, the machinery in the mill. The mortgagor has, by the law of Rhode Island, three years after the mortgage is -foreclosed to redeem. The defendant in error could not have taken the personal property out of the mill and sold it.
    Under the mortgage the defendant could take no possession of the property, but as an incident to the mill.. This possession of the property was only as srich an incident; arid if an ejectment were bróught, the machinery would be recovered as an incident to the mill.
    If, then, the estate conveyed by the mortgage, personal as well as real, is redeemable as real estate; if the general rights and, obli- • gations of the parties to this mortgage, be the rights and obligations of the parties to -a mortgage of real estate, the defendant in error contends that it is not to be recorded as amortgage of personal property, under the act ofJanuary^ 1834.
    The object of the act was. to give notice of the existence of the incumbrance. That object is answered by a record in one book, as well as by a record in two. To require a double record to be made in the same' office,.Would be requiring the performance of an idle ceremony; which would be no benefit to those who are entitled to notice,-and failure to perform which would subject an innocent mortgagee to the.loss of his property. •
    The defendants in error contend that-the provisions of the recording- act are only directory, to the town elerks — and the law is complied with by the recording of the deed in the town clerk’s office. If recorded in the office of the town clerk, it is all-sufficient.
    The town clerk is'the keeper of :the records, and he of course knows where to find the record of any, instrument. He alone has a right to search them, at the expense of a party inquiring. It is for him to -make srich arrangements for.the.recording of papers, as will give him the best means of making an accurate search. Cited as to the construction of statutes, in the manner contended for by the counsel for. the defendant in error, Rex vs. Loxdale, 1 Burj. 447. Rex vs. Sparrow, 2 Strange, 1123. Rex vs. The Inhabitants of Bunningham, 8 Bam. and'Cres. 29.. Beverley vs'. Ellis, 102. Bráckenridge vs. Todd, 3 Monroe Rep. 54. The defendant in error also contended, that according to the true- construction of the act, the mortgage was properly recorded in the record of mortgages of. personal property. ' The book of mortgages of real estate is wholly unknown to the registry laws of Rhode Island. The. law does not contemplate mortgages of real estate to be recorded in. one-book, and absolute deeds in another. It makes no distinction between them-; nor-between mortgages, and any other conveyance of-real estate.
    The defendant in error further contends, that the certificate of the town clerk is conclusive evidence of the facts therein stated.
    - He alone is the recording officer. He alone is .entitled to the custody of the records; and he alone' is the certifying officer. -See Laws of Rhode-Island,-878. He certifies the day and the hour when the -mortgage was. left for record. His -certificate of - this fact, and of the fact that the -record has been, made, cannot be contradicted. Cited,Tracy vs. Jenckes, 15 Pickering’s Rep. 465. Frost' vs. Beekman, 1 .Johns. Chan. Rep. 288.
    The counsel for the plaintiff in error, in reply, denied that a deed or any other conveyance, purporting to be executed by a corporation, and using such terms as. are properto- convey property, could be taken as the joint deed, of these individual .corporators. Nor could such a deed be made to operate as a joint deed of the individuals, on th'e ground that the corporators had committed a fraud by holding themselves out as capable of'making such a deed.
    Nor could the deed operate as an estoppel.
    An estoppel does, not bind, a stranger. Co. Lit. 352.- - An estoppel does not. bind mere strangers, or those who claim'by title paramount the. deed. It does not bind persons claiming-by an' adverse title, &c. Carver vs. Aster, 4 Peters, 83.
    Simply recording a mortgage- in the.town clerk’s office .in any' book, would not in the judgment of the general assembly have accomplished this object; because, in practice, the records in the town clerk’s office are open.at all'convenient hours to public inspection ; .are searched, - as' matter of right, by every freeman and freeholder; and the town clerk himself is not exclusively entitled to their perusal, although when called upon to search the same, he is by law entitled to certain fees. We believe this practice to.be common to'every state in the Union.- The legislature were well aware-of its existence in Rhode Island; and in passing the act in question, they manifestly intended that the' record of mortgages of personal property shóuld -be so made that every person interested might know with certainty, where to look for.it. If-it were not so, where was the necessity off prescribing the mode and place qf record? If the town clerk had the exclusive right to search'the records, and the' community were dependent on him solely for information as to their contents, why the necessity.of directing him as to .the place where to make the record ? •

      Sn conclusion, the statute of February, 1S$4, is a remedial statute; the whole must be construed together in order to effectuate the remedy provided, and prevent the mischief contemplated by the statute: and the deed in question was not recorded prior to ,the levy by thé plaintiff on error oh the articles named in the writ of replevin of the defendant in error, in conformity with the provisions of said statute. •
   Mr. Justice M'Lean

delivered the opinion of the Court.,

This case is brought before this Court by á writ of error to the Circuit Court of Rhode Island.

The defendant, Cyrus Butler, commenced an action of replevin against the plaintiff in error, for various articles of personal property specified in the writ of replevin, and claimed by him under' a mortgage dated .the 50th day of November, 1837. The defendant had taken possession of the' property, by virtue of an execution directed .to him as. marshal, on a judgment against the mortgagors.

On the trial, certain exceptions were taken to the rulings of the Court, which bring the question,? decided before this Court.

' The mortgage was executed by one Daniel Greene, as the’agent of the Union Steam Mill Company, said company being a manufacturing corporation, conveying, to the plaintiff below certain lands, with a woollen mill and other buildings, with the machinery in said mill,' &e. And the incorporating act and* several acts amendatory. thereto were read in evidence. And also a deed from William P. Salisbury to the said Greene, dated the ,18th May', 1837, conveying all his interest in the real and personal property of the Union Steam Mill Company

And. it was proved that Daniel Greene, who executed the deed first aforesaid, was, and had been from the time of the formation of said company, the general agent, and, as such, had made all purchases' and sales for the company; and that the- deed was executed'by hiin. with the consent and authority of said company: and also by and with the consent and authority'of the persons who, at the time of the execution thereof, were members of said company.

The Court decided that the said corporation was not so proved as to entitle the de.ed to.be read to the jury as the deed.of -the'said corporation; -but that the deed was good to convey a valid title to the articles named in the writ of replevin. To this decision the counsel for the defendant excepted.

And it was further objected to said deed, that it did not appear that the same had been recorded prior to the defendant’s levy on the articles by the writ of replevin, in conformity to the statute on the subject. The counsel for the plaintiff'produced and read to the Court an endorsement on the back of said deed, signed by the clerk of the town of East Greenwich, in the words and figures following, to wit: “Lodged in the town clerk’s, office, to record, Nov. 20th, 1837, at 5 o’clock P. M., and recorded same day in the records of mortgages in East Greenwich, book No. 4, &c.”

It was proved that the said clerk kept a book ..in Avhich all mortgages df personal' proper ty only were recorded-; and alb other mortgages, which included real estate, Avere recorded in other books kept in the office. After the deed was recorded, it was taken away by the plaintiff below; and afterwards, oh the 14th November, 1838, was returned by him to. said-office, when it was recorded in the book ■kept for mortgages of personal, property. And the. Court decided that said certificate was sufficient evidqnce that the deed was duly recorded. To which decision the .defendant exdepted.

The above exceptions present two points for examination.

1. Whether the mortgage deed was valid.

2. Whether it was duly recorded.

To the decision of the .Court, that the evidence did not show that the stockholders had organized themselves under the act of incorporation, so as to enable'them to execute a corporate deed, .there was no' exception.. This ruling of the Circuit Court is not, therefore, brought before this Court.

The deed of mortgage purports to be executed'by the corporation. The Union Steam Mill Company is the name of the corporation; and on the face of the deed, the company is .stated to have been le-gally incorporated. Daniel Greene, as the agent of the company, and in its name, signed the deed, and affixed' to it the seal of the corporation.

And the counsél for, the plaintiff in error insist, that this mortgage can only be operative as the deed of the corporation. That if it be not the deed of the corporation, it is no deed. And that in no sense can it be considered the deed of the stockholders of the Union Steam Mill Company, as partners; independent of the act of incorporation.

This, it is said, Avould be giving a different .effect to the deed from that which was intended by the parties, who executed it; 'They bind themselves as corporators, and convey, as such, the property of the corporation ; and to hold that the. deed binds them in any other capacity, or conveys the property iii any other, would not only- essentially vary the terms of the deed, as clearly expressed upon its face, but it would be a fraud against the creditors of the, company. And -it is also insisted, that the deed, being under seal, and executed by only one of the partners, cannot bind the company.

From the record it appears that this company did business before the act of incorporation was passed, and that Daniel Greene acted as its agent. And that after the deed of William P-., Salisbury, conveying to the. company all his interest in the'property, in May, 1837, Daniel Greene and R. W. Dickinson composed the stockholders of the company. And it appears, after they assumed their corporate functions, much formality was observed in the record of their proceedings.

- Greene acted as chairman and Dickinson as secretary: motions were made, and, as it Would seem, were unanimously decided. A special meeting of the stockholders was called, on the subject of executing the mortgage, by a formal note, addressed by R. W. Dickinson, as clerk, to Daniel Greene, apd another to himself.

In their business proceedings, generally, as well as', in the execution Of the mortgage, these individuals assumed to act as a corporation. But they were not authorized to- act in this capacity. • This fact must be taken as granted, at least so far as the'decision of the present case. , '

. And here a question arises,' whether the acts of these individuals, in their assumed character as corporators, are void. Máy they, hold themselves out to the world- as entitled to. certain corporate privileges, when they were not so entitled.; and- afterwards avoid their contract on this ground ? This would be a somewhat n.ew, and certainly a most, successful mode -of practising fraud. It would be enabling a party to take advantage of his own wrong.

As the present controversy-involves only the fight to the personal property named in the-deed of mortgage, it is not necessary to consider the validity of. that instrument beyond the effect it'has on .this-property.' . ‘ ' ' '

' It is a well- settled rulé, though a very- technical orie, that one partner cannot bind his copartner by deed. And. it is equally well settled, that one partner may dispose of the-'personal, property of the firm.. ' '

In this case, had an absolute sale and delivery of this property .been made by Greene, no one, m the absence of fraud, could have questioned the. title of the purchaser. But the mortgage was executed under seal, and Greene, it is alleged, could not bind; his partner by deed. - ’ '

That these individuals, not being responsible on their contracts as a corporation, or liable as copartners, is too clear to ¿dmít of doubt. The property of the. company, both real and personal, was vested-in them; and they controlled, its entire-operations.

The mortgage deed was executed on the 20th of November, 1837. And-'it appears from the record, that Greene and Dickinson, unanimously resolved, that the mortgage should be executed by Greene as agent of the corporation. And it was accordingly executed on •that day.

Now that one partner, may bind his copartner by deed, if he be present and asSent.to ityis a well established principle'.

The signature and seal of Greene are affixed to the mortgage; and that this tvas done with the assent of his copartner, Dickhfson, 'is unquestionable. But Vas Dickinson present, at the execution of-the mortgage, arid did ■ he then assent' to- it ? We think theiacts.in the record will, warrant such-a conclusion. The resolve of the partners to .give the mortgage, and the execution of it, bear the same dáte; and may well be considered the 'same transaction. This seems to be°the fair result of the facts stated, and must be received' as prirtia facie evidence of the due execution of the deed.

These facts are liable to be rebutted by any one who quéstions the validity of. the- deed.

All those parts of the deed, which refer to the corporation, including the corporate seal, may, be rejected as surplusage, which do not vitiate it. They. are. considered as-merely descriptive, and being •false in fact, can have ño effect on the deed.

The seal of one partner to a deed,-with the assent of the copartner, will bind the firm.

From these considerations we think the Circuit Court did not' err, in receiving the mortgage deed in evidence; treating it as a valid instrument,-as it respects the rights involved in this suit.

2. Was this mortgage duly recorded?- By an act of the legislature of Rhode island, passed at the January session, 1834; entitled ah act to prevent fraud in the transfer of personal property,” it is provided, that no mortgage of personal property, except as between the parties, shall be valid; unless possession accompany the deed, or if.be recorded-in the office of the towrt clerk.' In the second section it is-made the duty of the clerk to record such mortgages in a book kept for that purpose.

It appears from the evidence,, that' the toWn clerk kept a book in-his . office in which he. recorded all mortgages of personal property; and all other mortgages which included rbal estate, of real. estate and personal, wére recorded in other books kept in said office, in one of which, this mortgage was recorded. And the question is, whether such a registration is sufficient under , the statute.

The object of the. recording act is to' give notice to subsequent purchasers. The statute' undoubtedly requires the clerk to -record mortgages for personal property only, in -a book kept for that purpose. This being the requirement of the law, to which the clerk strictly conformed, there could be no uncertainty in searching the record for a personal mortgage.

But it seems-that -the statute did .not expressly provide, in what book q. mortgage like the one under consideration, for both real and persona] property, should be recorded. And it appears that it was the usage of the office, to record such mortgages-in the book which contains mortgages for real estate.

Now if this .be insufficient," nothing short Of recording such a deed in both books, could be held a con tiiance with the. statute.

And can this be necessary? ■ The conveyance of the personal and real property is so" blended in the' mortgagees to be inseparable. To require a double record .would seem to be an unreasonable construction of the statute, as it cannot be-necessary to effectuate its .object. Both records, are" kept in the same, office-, and by the same .person; who performs the duties of the office, and must always be - w.ell acquainted with its usage. Any inquiry of the cferk far the record of a mortgage like^ the one undér' consideration, would' as certainly lead to it,, under the usage, .as if it were recorded in both books.

If this mortgage .had been recorded in the book for personal, mortgages, the same strictness as now contended for might be urged against, such record book, as it would not then be kept exclusively, for personal mortgages.

We think that this mortgage has been recorded in a bóok keptj though not exclusively, for the, purpose of recording-mortgages which convey.real and personal-property; and that' it is within-a fair construction of the statute.

We think also, that the Circuit Court did not err, in.deciding that the. certificate of the clerk was; sufficient evidence that the mortgage deed was duly recorded. The judgment of the. Circuit Court, not being erroneous, is affirmed with costs.