author: Mr. Chief Justice Taney

text:
    William Remington, Plaintiff in error, vs. Otho M. Linthicum, Defendant in error.
    A sale of land by the sheriff, under the laws of Maryland, seized under a fieri facias, transfers the legal estate to the vendee by operation of law, and does not require a sheriff’s deed to give it validity. But as sheriff’s sales of lands are within the statute of frauds, some memorandum in writing of the sale is required to be made. ■ It is immaterial when the return to the execution is made, provided it is before the recovery in an ejectment for the land sold, as the'sale must be proved by written evidence. The sale passes the-title, and the vendee takes it from the day of the sale. The evidence may therefore be procured before, or at trial.
    If property is seized under a fieri facias, before the return day of the writ, the marshal may proceed to sell at .any time afterwards, without any new process from the Court: as a special return on the fieri facias is one of the necessary modes of proving the sale, the marshal must be authorized to make the endorsement after the regular return term, in cases where the sale was made afterwards.
    The return to a fieri facias, if written on the writ, should be so full as to contain the name of the purchaser, and the price paid for the property, or it would hot be a sufficient memorandum of the sale, within the statute of frauds: nor can an imperfect return of a sale be made complete by a reference to the private memorandum book kept by the marshal of his gales; as it was not a sufficient memorandum of a sale, within the statute.
    When the deeds of the defendant in'the ejectment have been referred to by the plaintiff, for the sole purpose of showing that both parties claim under the same person; this does not prevent the plaintiff impeaching the deeds afterwards for fraud.
    IN error to the Circuit Court of the United States, for the county of Washington, in the District of Columbia.
    The'defendant in error, Otho M. Linthicum, instituted an action of' ejectment in the Circuit Court of the county of Washington, for the recovery of certain real estate situated in the county of Washington, which had been purchased by him at a marshal’s sale, sold under three writs of fieri facias, against Z. M. Offutt; and which thedefendant in the ejectment claimed to hold under a deed of conveyance made by Z. M. Offutt, after the judgments on which the property was sold.
    On the trial of the cause, on the fourth Monday in March, 1839, the counsel for the defendant, in the Circuit Court, took three bills of exceptions to the decisions of the Court, upon points submitted to them; and a verdict and judgment having been rendered for the plaintiff in the ejectment, the defendant prosecuted this writ of error.
    The cause was argued by Mr. Brent, junior, for the plaintiff in error; and by Messrs..Marbury and'Coxe for the defendant.
    The first bill of exceptions stated, that on the trial of the cause, the plaintiff offered in evidence, the record and proceedings in the three cases of. O. M. Linthicum vs. Z. M. Offutt, and then fürther offered in evidence three writs of fieri facias, issued against the lands of said Offutt; which it was admitted by the plaintiff had not been returned to the clerk’s office by the marshal; but were produced on the trial by the-marshal, at the instance of the plaintiff, with the written return thereon, as follows:
    “ Levied as per schedule; property sold as per return annexed, and satisfied pí’ff as per receipt on writ,
    “ Alexander Hunter, Marshal.”
    “Received of Alexander Hunter, marshal, six hundred apd seventy dollars and sixty-six' cents,, in full of, this fi. fa. Debt, interest and costs, @670 66. “ O. M. Linthicum.
    “January 22d, 1838.”
    The returns on the other writs were the shine in effect and .form. And further offered in evidence the schedule of the property sold, describing the property aS follows: “ Part of lot No. 153, on Third street,. in Beatty & Hawkins’ addition to Georgetown, beginning two hundred, and twenty-six feet from Market street, thence running east with Third street thirty feet, thence south one hundred and fifty feet, thence west thirty feet, and-thence to the beginning one hundred and fifty feet, with the improveménts thereon, being a two story brick house, &c.”
    And he also offered in evidence the private book of éntries kept by the marshal, of his official sales, &c., in which is the following entry, made on the 13th of January, 1838, by his clerk employed in his office; but who was not a deputy marshal:
    “ Account of Sales.”
    ■ “ The property of Zachariah M. Offutt, sold to satisfy judicials to November term, 1837, No. 65, 66, and 67, in favour of Otho M. Linthicum; also judicials No. 355, to November term, 1837, in favour of Samuel Cunningham, use of William Remington; and struck off as follows:
    ■“ January 13th, 1836, Part of lot No. 153., in Beatty & Hawkins’ addition to Georgetown; thirty feet front, with the improvements, sold to Otho M. Linthicum for - @700 00
    Part of lot No. 153,-twenty feet front, sold to Otho M. Linthicum for - - - - - - 200 00
    @900'00
    Deduct expenses as follows:
    Printer’s bill, (Advocate) - - @ 7 00
    Marshal’s fee - - 17 17
    - 24 41
    @875 59
    Sale of personal property sold 23d Dec. 1837.
    Nett am’t after deducting @84 for house rent - - 300 79
    @1,176 3S

      Ain’t.of ex’n,- and credited jud’s No. 65, to Novémber term, 1837 , - - - @670 66
    Jud’s No. 66, do. do. credited with this sum - 505 72
    -:— @1,176 38
    “Alexander Hunter,
    “Marshal, D. C.”
    And further offered to prove that the said entry was truly copied from the original memorandum made by the deputy marshal at the time of sale, which original paper was lost; and that the said entry was made in the said book, by the said clerk, according to the usage 'and practice of the marshal’s office.
    And the plaintiff further offered to give in evidence a written list of said writs of execution, by the said marshal.
    “ Otho M. Linthicum d No_ 66 Judi(]ials> Zachariah M. Oeeut. S N°Vember Term’ 1837>
    “By virtue of^tbe said writ of fieri facias, to me directed, I hereby return to the said .Court that, in pursuance of said writ, returnable to November term, 1837, and under [he levy by me made, as" per schedule returned with the said writ, I did, after due advertisement thereof, sell the real property mentioned in said schedulé and appraisement.
    . ^ “ That said sale was "made, according to law, on the 13th January, 18.38; and at said sale, Otho M..Linthicum, being the highest bidder, became the purchaser of the first of said described pieces of property, viz.: the part of lot No. 153, in Beatty & Hawkins’ addition to Georgetown, described ¿n said levy and schedule, for the sum. of seven hundred dollars, and the .other piece of property mentioned in said schedule and levy, viz.: that part of lot No. 153, in Beatty & Hawkins’ addition to Georgetown, therein described, for .the sum of two hundred dollars; and having, in all respects, fulfilled and' complied with the conditions of sale, and paid the purchase money to me, he became the purchaser thereof. All which I certify, and return, this 19th day of April, in the-year 1839.
    “A. Hunter, Marshal.”
    Which' return, it is admitted by the plaintiff, was not written or made out until after the jury were empanelled in this cause; and the' plaintiff accompanied his said’last mentioned offer with a prayer to the Court to authorize said marshal-to make said written, return of said writs: to the admissibility of all which testimony so offered, and to the granting of which prayer, the defendant objected: but the Court overruled-said objection, and authorized the marshal to make said written return, and admitted the said written return, as well as the other testimony above offered by the plaintiff, to go in evidence to 'the jury.

      The defendant’s second bill of exceptions was as follows:
    The counsel for the plaintiff’, in opening his case to the jury, claimed title tb the premises in question under a sale by the marshal of said premises under a writ of fieri facias, at the suit of O. M. Linthicüm vs. Z. M. Offutt, and that said defendant claimed title to same premises under a conveyance from said Offutt to W. Remington, which said last mentioned deed would be proved to be fraudulent -and vpid, as' against said plaintiff. ; And the counsel for the defendant having, in his Opening of his cause to the jury, stated that the defendant did claim title under said deed from Offutt to Remington, and the said plaintiff having offered the evidence mentioned in the preceding bills of exceptions, now, for the purpose of showing that said defendant claimed title under Offutt, and preparatory to impeaching the same for fraud, gave in- evidence; the • deed from Z. M. Offutt to James Remington, dated 18th April, 1835, recorded 17th. October,' 1835; and the deed from James Remington to William Remington, dated 16th October, 1835, recorded 16th April, 1836 ; and then offered further to prove that said last mentioned deeds were fraudulent and void as against said plaintiff: to the admissibility of which said evidence, the defendant objected.
    The defendant’s third bill of exceptions was the following:
    The plaintiff, in addition to the evidence contained in the aforegoing bills of exceptions, offered evidence tending to prove that the conveyance from Z. M. Offutt to James Remington was fraudulent as against the plaintiff’s lesser: and the defendant then offered evidence tending to prove that the said mentioned conveyance was fair and bona fide, and for a valuable consideration, and not intended to hinder, delay, or defraud the said plaintiff’s lessor: and then moved the Court to instruct the jury that, upon the evidence offered by the plaintiff, if believed by them, he is hot entitled to recover: which instruction the Court refused to give.
    Mr. Brent, junior, for the plaintiff in error,
    contended that to entitle the plaintiff below to recover, he must show a title to the lot of ground in Offutt, and that this title is in him legally, not equitably. 2 Phil. Evid. 204. The legal title must be in the plaintiff when the ejectment is brought, and this on the day the demise is laid. 2 Maul and Selw. 446. 5 Harr.' and Johns. 173. 3 Harr, and Johns. 19. 8 Peters, 318. The plaintiff below traced no title in Offutt, but gave in evidence the deed from Offutt to James Remington, and the deed from James Remington to William Remington thus using these conveyances' for the purpose of exempting himself ffom proof of title in Offutt, by showing that both parties to the ejectment claimed from the same person. The plaintiff below, in opposition to, and inconsistent with these deeds,'thus used by himself, denies their validity to give a title to the defendant; thus assailing his own evidence. This is Jn direct opposition to the rule of law, that a party cannot impeach his o wn evidence. If the deed was void for fraud, then the party alleging the fraud cannot set up the deed for any purpose; if he claims a benefit from it, he cannot impeach it..
    The question presented- on the first bill of exceptions is, whether the Court erred in allowing the marshal to make out his return to the execution, after the jury were sworn to try the cause ?
    It is submitted to the Court, that the plaintiff in ejectment should have a title at the time, of the demise laid in the declaration. A purchaser at a sheriff’s sale, must show a title in the defendant, under whom he claims. 2 Phil. Evid. 204. Binney vs. The Chesapeake and Ohio Canal, 8 Peters,'218. 3 Harr, and-Johns. 19. 5 Harr, and Johns. -173.
    If this 'is the law, the plaintiff below must fail. He did not show title in Offutt; he only showed a judgment and executions against him.
    The returns to the executions were made out after the trial of the cause had commenced. Did the Court err in allowing the marshal to make' the return, when it was made in this case ?
    It was not an amendment, but was an original return; none had been made before, there was nothing to amend by. And if it was an amendment, it was not made in time. 2 Harr, and Gill’s Rep. 637. The Courts of Maryland have sustained motions to quash writs of execution, for want of sufficient returns. There is no case in which an amendment has been allowed, to the extent of the return made by the marshal in this case.
    The great question in the case is, could the plaintiff below, on the whole evidence, recover? He did not show a legal title at',the time when the suit was brought. The return, even if made in proper time, is not a legal title; -no deed for the property was executed by the marshal. A purchaser at a sheriff’s sale must show a deed from the sheriff, or a memorandum, admitted to be equivalent to a deed,' to take the case out of the statute of frauds. - I Harr, and Johns. 451. 6 Harr, and Johns. 204. 5 Harr, and Johns-. 203. It is admitted-that if a deed had been executed, there would be no necessity for a\ return by the marshal. The deed would be sufficient. 1 Harr, and Gill. 438 — 448. 5 Gill, and Johns. 206.
    Have the Courts of Maryland decided that a mere private note or memorandum in writing, by a sheriff, will be sufficient to maintain an action ? This would be contrary to the statute of frauds. Cited-Sugden on Vendors, 63. 2 Caines’Cases in Error, 61. The case in 4 Wheat. 63, is not at variance with these principles.
    The uncertainty in the description of the property, in the declaration in the- ejectment, cannot be allowed. Great strictness is insisted upon in the description of the property sought to be recovered. Possession of the property is to be given according to this description. The defect of the description in this ease, is manifest.' No one could, with it, find the property.
    Messrs. Marbury and Cóxe, for the defendant.
    Iff the Circuit Court the plaintiff produced all the law requires, to sustain his title under the sale by the marshal.. 1. An existiñg judgment. 2. A fieri facias. 3. A levy on the property. 4. A sale by virtue of the execution and levy. To prove the sale, he offered the book kept by the marshal in which he made entries of his official sales, and the return of the writs of execution. To the admissibility of all this evidence, the defendant, in the Circuit Court, objected.
    The objection to the first bill of exceptions is, as to its generality. There is a denunciation of the whole of the evidence of the plaintiff, and yet it cannot be doubted that a large portion of it was far from exception. It was the duty of the party who took the exception, to point out, particularly, that which was its object. Moore vs. The Bank of the Metropolis, 13 Peters, 310.
    As to the objection to the introduction of the return of the' mar-; shal after the trial had commenced, it is submitted, that the return was of no importance. The title of the plaintiff below, as purchaser at the marshal’s sale, was complete when the' sale took place. This point was determined in the case of Wheaton vs. Sexton, 4 Wheat. 503; the Court having decided, that “it was immaterial whether the writs were returned or not; the purchaser took his title from the sale.”
    The particular evidence objected to, was the entry in' the marshal’s book of sales ; and the marshal’s return to the execution.
    But it has been shown from the authority cited,^.nd others can be adduced, that to give a title, a return is not' required. The property of the defendant is. transferred to the purchaser by operation of law, and no further act of the officer is 'required. Boring vs. Lemmon, 5 Harr, and Johns. 223. -Barney vs. Patterson, 6 Harr, and Johns. 204. Barnes on Sheriff, 262.
    The entry in the book of the marshal was not offered as the ■evidence of title, but to prove, the sale; and for this purpose there was no objection to it. So also was the return on the execution. They supplied the requisitions of the statute of frauds.
    In the case of Fenwick vs. Floyd, 1 Harr, and Johns: 174, it was held, that a sheriff’s sale might be proved, 1. By the deed of the sheriff; or, 2. By the return of the sheriff on the fieri facias; 3. By'a memorandum of the sale, to take the case out of the statute of frauds.' .Cited also, 6 Gill, and Johns. 306. The marshal made no deed in this case, and the return is sufficient.
    The only objection which has any apparent force, is to the time when the- return was made. But no rule of law is known, which prescribes the time within which the return shall be made; provided it is made before the writ leaves the hands of the officer, and the return is made to the clerk of the Court.
    If the return was necessary to complete the title of the purchaser, it ought to be made before suit is brought by the purchaser of the property, since the plaintiff in such a suit must have the title before he commences his action. But this is not the law. In this case the marshal had retained possession of the writs, he had not endorsed on tnem his return, before they were offered in evidence; he was required to make the return, and he did so; and this is in conformity with the decisions in the Courts of Maryland. 2 Gill, and Johns. 359. In this case the Court held, “ that it was not necessary that the return should be endorsed on the writ, or the deed of the sheriff executed at the time of the sale.”
    If the return is insufficient, the entry in the marshal’s sales book supplies the deficiency It was proved that the entry was according to the usage and practice of the officer; that it was made in a book kept for the purpose, and by the clerk of the marshal; and that it was truly made from an original memorandum, made by the deputy marshal at the time of the sale, which memorandum is lost. This is as good evidence as in the absence of the,lost memorandum can be required.
    The entries 'contain all that is essential — all that can be required: the name of the purchaser; the price for which the lot sold; with such a description of the property, connected with the schedule, as gave it entire certainty.
    As to the second bill of exceptions, taken by the defendant in the Circuit Court, it was said, the deed from Offutt, the defendant in the execution, was offered, with a notice of intention to impeach their validity as against the title of the plaintiff under the sale; ‘and exclusively to show, that both the parties in the ejectment claimed title from Offutt. The title in Offutt could have been proved by another course, but this was-the most ready mode of establishing it as between the parties, in the Circuit Cou^t; It was competent to introduce the deed; and then to show that the judgments under which the plaintiff below claimed were earlier than the date of the deed.
    The third exception by the plaintiff in error, was to the introduction and effect of conflicting testimony. It is sufficient to remark, that this testimony was properly left to the jury.
   Mr. Chief Justice Taney

delivered the opinion of the Court.

This was an action of ejectment .brought by Linthieum against Remington, in the Circuit Court for Washington county, in the District of Columbia, to recover part of lot No. 153, in Beatty-and Hawkins’, additipn to Ge'orgetown.

It seems that a certain Zachariah M. Offutt, of the said county, was the owner of the property in question; and being indebted to Linthieum in three several sums of money, actions were brought by the latter upon those claims, in the year 1836. Judgments were obtained, jn due course of law; and executions against the property of the defendant were issued upon each of them, returnable to November term, 1837, of the said Court. Upon each 0f these writs of fieri facias the marshal seized the,property which is row in question, and sold it at public sale, on the 13th of January, 1B38; and at this sale Linthieum was the highest bidder, and became the purchaser.

In 1835, before the institution of any of the above mentioned suits, Offutt, by deed duly executed, conveyed this property to James Remington, who in the same year conveyed it, in like manner, to William-Remington, the plaintiff in error.

Linthicum, haying purchased of the marshal, as before mentioned, brought an ejectment, in February, 1838, against William Remington, who w.as the tenant, in possession. The case came on for trial at March term, 1839, and the judgment of the Circuit Court being in favour of the plaintiff, the defendant brought' the writ of error which is now before us.

Three bills of exception were taken at the trial,, but the principal and most important question arises on the'first. It appeared that the writs of fieri facias, herein before mentioned, had not been returned to the Court, but had remained in the possession of the marshal, and were produced by him at the trial, after the jury were sworn. The plaintiff offered these writs in evidence, together with the endorsements upon them, and also a schedule, in the usual form, of the property seized; and-a particular account of its sale,'as entered in a book kept by the clerk of the marshal for such purposes. It is however unnecessary to state the contents of those endorsements, and of the said 'account, because the opinion of this Court does not turn upon them.

In addition to these papers, the plaintiff offered in evidence a special return of .the said writs by the marshal, which return it was-admitted was not written until after the jury were empanelled; and the plaintiff accompanied this offer with a prayer to the Court to authorize the marshal to make such written return, •

The return thus offered bears date April 19th, 1839, which is the term at which the ejectment was'tried in the Circuit Court. - It states, that the fieri facias was levied on 'this property; that it was duly-advertised, and sold according to law; states the day of the sale; that Linthicum being the highest bidder, became the purchaser; states the. price at which he bought; that hé-had paid the purchase money, and fulfilled the conditions of the sale. This return refers to the schedule of the property seized,and returned with the writ; in which the lot in question is described by abuttals with sufficient precision. To the admission of all or any of this evidence, the defendant objected; but the objection was overruled by the 'Court, and the evidence admitted: and this forms the first exception.

The evidence stated in this exception was offered by Linthicum, in order to' show a legal title in himself at the commencement of the suit; and undoubtedly such a title must be shown by the plaintiff in ejectment, and he cannot recover upon a title acquired pending the action. In deciding upon the admissibility of this evidence, for the purpose for which it was offered, we must of course be governed by the laws of Maryland, as far as we can gather them from the decisions of her Courts; because the property in question is situated in Washington county, in this District, where the laws of Maryland, as they existed at the time -jurisdictipn was assumed by .Congress, have been adopted.

In the case of Boring’s lessee vs. Lemmon, 5 Harr. and Johns Rep. 225, the Court of Appeals, of Maryland, held that the sale of land by the sheriff, seized under a fieri facias, transferred the legal estate to the vendee, by operation of lawand that a deed from the sheriff was not necessary.

The authority of this case is recognised in Barney’s lessee vs. Patterson, 6 Harr. and Johns. Rep. 204; in which the Court, say, “it is not the return of the officer that gives title to purchaser, but the previous sale.” But they then proceed to qualify in some measure the general expressions used in Boring’s lessee vs. Lemmon, and declare that sheriffs’ sales of land are within the statute of frauds, and that some memorandum in writing is necessary to be made; and they recommend, for the safety of purchasers, that in addition to a deed from the officer, there should be a special return of the execution, particularly describing the' premise's, and setting out the name of the purchaser: either of-which, (the deed or the special return,) the Court say, “ though not operating to pass the title, would be safe and competent evidence of the sale.”

The chief objection to the special return made by the marshal in this case, is, that it was not made before the suit v/as brought; and is not therefore' admissible to show title at the commencement of the .suit. This objection rest’s upon the hypothesis that a deed from the marshal, or a special return upon the execution,'was necessary to perfect the title of the vendee. But the Court of Appeals of Maryland, in the two cases above referred' to, have decided that- neither the return nor the dee'd pass the title; .that they are nothing - more than evidence of the sale; and that it is the-sale which transfers the title, by operation of law. It would seem to follow from these' decisions, that it cannot be material at what time this evidence is obtained. He cannot recover without it, because the sale being within the statute of frauds, it must be proved by written evidence. But whenever this evidence is obtained, it proves the previous sale by the officer: and as it is the sale that passes the title, the vendee must take it from the day of the sale. The evidence may be procuredj therefore, before or after suit brought; or before or after the jury are sworn in the trial of the ejectment. And the special return of - the marshal, in the,case before us, made at the time, of the trial, was admissible in evidence ; for when thus made, it related back'to the sale, and proved Jhe title to be good from that day. The return is-also sufficiently special, and complies with the statute of frauds.

Neither-is there any objection to the time at which this execution was actually returned to the Court. It is true that it was made returnable, on the face of it, to November term, 1837. But, if property, real or personal, is seized under a fieri facias,, before the return day of the writ; the marshal -may proceed to ééll, at any time afterwards, without new process from the Court. And as a special return on the fieri facias is one of the modes of proving the- sale, and securing the title of the purchaser;.the marshal must be authorized to make the endorsement, after the regular return term, in cases when the sale was made afterwards, In. this case the executions had never been returned; they were still in the possession of the marshal; and the return at first endorsed on them, was still in his power: and if he believed it not correct,' or not'sufficiently particular, he had á right to change it. His return, when thus made, was under his oath of office; and he was equally responsible for it as if it had been made on the return day named in the writ itself. And as. the executions in question had no.t before been returned to the Court, we do not think that any leave was necessary in order to authorize the special endorsement made upon them.

We have said nothing of the short returns endorsed, in the first instance, on these executions; nor of the accounts of sales contained in the marshal’s private book of accounts;. because the returns, as first written, did not name the purchaser, nor state the price paid for the property; and were, consequently, not of themselves such written evidence as would satisfy the statute of frauds. Nor can they be made better by reference to the memorandum of the sales in the private book accounts of the marshal, which certainly was not that kind of written evidence of the contract of which Linthicum could avail himself, in order to avoid the operation of the statute of frauds. We place the decision upon the special return before mentioned.

The second exception may be disposed of in a few words. In order to .supersede the necessity of tracing a title regularly from.the state, the plaintiff read in evidence the deed from Offutt to James Remington arid from James Remington to William Remington, herein before mentioned; for the purpose of showing that the defendant in ejectment, William Remington, claimed title under the said Offutt. And then offered further to prove that the said deeds were fraudulent and void, as against him the plaintiff. This last mentioned evidence was objected to by the defendant, but admitted by the Court; and we think rightly admitted. The deeds' were read by. the plaintiff to show that Remington claimed .under Offutt, but not to show that he was a bona fide purchaser. And when he afterwards offered evidence to prove that these deeds were fraudulent, there was nothing in this offer inconsistent or incompatible with what hé had before endeavoured to establish by the production of these deeds. The third and last exception has not been much pressed here, and certainly in the manner in which the point is here stated, there is nothing for this Court to act upon. The exception states generally, that the plaintiff offered evidence tending to prove that the conveyance from Offutt to James Remington, was fraudtílent as against the plaintiff; and that the defendant offered evidence tending to prove the contrary; and then moved the Court to instruct the jury, that upon the evidence offered by the plaintiff, if believed by them; he was not entitled to recover; which instruction the Court refused. No part of the evidence given by the plaintiff to establish the fraud, nor any given by the defendant to rebut it, is stated in the exception. It is impossible to say that the Circuit Court were in error, when we have none of the facts •before us upon which their opinion was given. Indeed, from the manner in which the testimony is referred, to' in the exception, it would seem that the question was. rather one of fact than of law; and that it was, therefore, properly left to the jury. .

An objection has also been taken to the declaration, upon the ground that the property sued for is not described in it with sufficient precision. It.is described as “all that lot, piece, or parcel of land, lying, and being'in Georgetown, aforesaid, being that part of lot'- number one hundred and fifty-three, in Beaty and Hawkins’ addition to Georgetown, aforesaid,.which is bounded as follows, to wit” — and the declaration then proceeds to- set out its abuttals. Undoubtedly, it' has often been decided in Maryland, .that a declaration for a part of a tract of land by its name only, or for part of a lot in a'town, by its number only, without setting out the lines or boundaries, is too uncertain; and that an action cannot be supported upon such a declaration. But this case does not come within these decisions, because the vague and imperfect description objected to, is immediately followed in the declaration by a particular description by lines and boundaries. It is said, however, that this description is also too vague and uncertain, and that the property is not sufficiently identified by abuttals, set out in the declaration. We think otherwise. The description of the premises appears to us to be sufficient, and we perceive no objection on that score, which ought. to have prevented the plaintiff in the Court-below from sustaining his action.

The judgment of the Circuit Court is, therefore, affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Peter E. Frevall, Appellant, vs. Franklin Bache, Administrator of John Dabadie, deceased, Appellee.
    A claim for the sum awarded by the commissioners under the treaty of indemnity with France of July fourth, 1831.
    The powers and duties of the commissioners under the treaty of indemnity with France, were the same as those which were exercised under the treaty with Spain, by which Florida was ceded to the United States ; as decided in the cases of Comegys vs. Vasse, 1 Peters, 212, and Sheppard vs. Taylor and others, 5 Peters, 710. There is a difference in the words used in the Treaty and Act of Congress, when defining the powers'of the Board of Commissioners; but they mean the same thing. The rules by which the Board acting under the French treaty is directed to govern itself in deciding the cases that come before it, and the manner in which it is constituted and organized, show the purposes for which it was created. It was established for the purpose of deciding what claims were entitled to share in the indemnity provided' by the treaty; and they of course awarded the amount to such person as appeared from the papers before them to be the rightful claimant. But there is nothing in the frame of the law establishing the Board, or in the manner of constituting and organizing it, which would lead to the inference that larger powers were intended to be given than those conferred on the commissioners under the Florida Treaty.
    ON appeal from the Circuit Court of the United States for'Washington county, District of Columbia.
    This case was argued by Mr. Coxe, for the appellant; and by Mr. Key, for the appellee.
   Mr. Chief Justice Taney

delivered the opinion of the Court.

This case comes before this Court upon -an appeal from the Circuit Court for the District of Columbia.

The controversy has arisen out of the shipment of a cargo of cotton, indigo, and coffee, made in the fall of 1809, in the brig Spencer, from Philadelphia to St. Sebastians, or Port Passage. The vessel duly arrived.,- and discharged her cargo. She was afterwards seized and the cargo sequestrated by the French government. In the following year, the vessel was liberated, and returned to the United States: but the cargo was never, restored.

The cargo of the Spencer thus sequestrated, was entitled to share in j.he indemnity provided by the treaty with France, of July 4, 1831. But a dispute arose before the commissioners appointed under that treaty, as to the right to five-sixteenths of the indemnity allowed for this cargo. The opposing claimants were the present appellant, who claimed for the whole of the cargo, and the appellee, who' claimed for the said five-sixteenths. The commissioners awarded in favour of the latter.

The appellant therefore filed his bill against the appellee, in the Circuit Court for Washington county, in the District of Columbia; alleging, among other things, that a certain Andrew Curcier, then a resident merchant in Philadelphia, was the owner of the Spencer and her cargo on the yoyage in question; that the said seizure and sequestration gave him a valid claim against the French government which he afterwards, for a valuable consideration, transferred to the claimant, who took it without notice of any other claim. And he charges also, that if. Dabadie, the appellee’s intestate, ever had an interest in the cargo, it had been relinquished to Curcier by a settlement which took place between them in 1818, long before the assignment to the complainant. And he produces, as an exhibit, the account which, as lie alleges, contains this renunciation: and he prays that the appellee may be enjoined from receiving the five-sixteenths awarded to him by the commissioners-; and that the Secretary of the Treasury, and the Treasurer of the United States may be enjoined from paying it.

To this bill the appellee put in his plea and answer, pleading the award of the commissioners in bar of the complainant’s bill; and also insisting, by way of answer, Dabadie owned the five-sixteenths of the cargo in question, and had a valid claim, on that account, against the French government; that he had never transferred or relinquished it to Curcier; and that his (Dabadie’s) administrator was entitled to receive it out of the indemnity provided by treaty: and he .exhibits as the evidence of his interest in this cargo, an account, signed by Andrew Curcier, in behalf of himself and Stephen Curcier, and dated June 16, ÍS10.

A general replication was put in by the complainant: and the testimony of a witness residing, at Marseilles, in France, was -taken by agreement of parties. This witness; it appears, is a native ,of France, but resided in Philadelphia; and was engaged in commerce there from the year 1796 until 1837, when hé returned to his own country, where he has ever since resided. He was intimate with Curcier and Dabadie; and he states in his testimony, that in the year 1818, at Philadelphia, he, as umpire and mutual friend, settled an account between them, in which all differences were finally adjusted; that the voyage of the Spencer to St. Sebastians, and the ownership of her cargo, were settled in that account; and that by the terms of the settlement, the claim on the French government for indemnity was afterwards to belong to Curcier. The witness mentions circumstances which took place at the settlement, to show that his memory is firm and accurate in relation -to it. He states that it was reduced,to writing in the shape of an account current, as was customary ; and that two accounts were made, exactly the same in every particular, both original, and one of them delivered • to each of the parties. No account current, however, was exhibited to the witness at the time of his examination, and none therefore has been identified by him as the account current settled between the parties in 1818 : and he states that he had not recently seen it, nor had any communication from any one in relation to its contents.

Upon the hearing, the Circuit Court dissolved the injunction, and dismissed the bill: and the case is brought before this Court by the appeal of the complainant.

Two questions have been presented for consideration, heré:— 1. Is the decision of the commissioners appointed under the treaty ■with Francé, conclusive upon the rights of the parties ? > 2. If the case is not concluded by the decision of the commissioners, is the appellant, upon the testimony in the record, entitled to relief ?

Upon the first question, the Court have entertained no doubt. This case cannot, we think, be distinguished from the cases of Comegys vs. Vasse, 1 Peters, 212, and Sheppard and others vs. Taylor and others, 5 Peters, 710. It has been argued on the part of the appellee, that these cases werfe decided under the treaty with Spain ; and that the language of that treaty, and of the act of Congress creating the board of commissioners under it, differs materially from the treaty and act of Congress under consideration, when defining the powers of the board. It is true, that there is a difference in the' words used; but in our judgment, they mean the same thing. The rules by' which the board is directed to govern itself in deciding the cases that come before, it, and fhe manner in which it was constituted and organized, show the purposes for which it was created. It was established for the purpose of deciding what claims were entitled to share in the indemnity, promised by the treaty; and they of course awarded the amount to such person, as appeared from the papers before them, to he the rightful claimant. But there is nothing in the frame of the law establishing this board, or in the manner of constituting and organizing -it, that would lead us to infer that larger powers were intended, to be given than those conferred upon the commissioners under the Spanish treaty. The plea therefore put in by the defendant in bar of the complainant’s bill, cannot be sustained; and the case is fully open before this Court upon its merits.

Upon the second point there has been much more difficulty. It is very clear that Dabadie was the owner of-five-sixteenths of, the cargo of the Spencer, upon the yoyage in the fall of 1809, from Philadelphia, to. St. Sebastians or Pori Passage. This is abundantly proved by the account stated and signed -by Andrew Curcier, for himself and Stephen Curcier, in June, 1810. For Dabadie, in this account, is. charged with thirteen thousand seven hundred dollars and thirteen cents, for his five-sixteenths of the cargo, and with- three thousand nine hundred and ninety-three' dollars and- ninety-five-cents, for insurance upon it. He was therefore entitled to indemnity fo the extent of his interest in the cargo, and had a valid and just claim for it against the French government.

Has this interest been transferred to Curcier ? The witness above mentioned deposed that it was relinquished to him, and the agreement reduced to writing in an account current, settled in June, 1818. If such an account had been produced by the plaintiff, it would decide the controversy in his favour’. He does indeed produce an account settled between the parties, with, mutual acquittances, in June, 1818. But it is not such an account as the witness describes. Neither -of the sums with which Dabadie was debited in the account of 1810, for his share of the cargo, and for insurance, appear in any way in this account of 1818. The acquittances therefore then executed do not apply to them. They apply only to claims which the parties may have had against one another; and not to claims which either of them had against the French government, or any other third party.

There is an item in the account of 1818, which has been much relied on by the complainant; in which Dabadie is credited with five-sixteenths of the proceeds of the Spencer’s cargo oh this voyage, sold-at six'months’ credit. But” there is nothing to show that any part of the outward cargo was sold in Frailee. On thé contrary, the, bill states that the whole caigo was sequestrated, and claims indemnity for the whole: and the answer admits the seizure of the whole, and'claims indemnity for five-sixteenths of the entire cargo. We cannot therefore suppose that this item refers to the proceeds of her outward cargo: for such an inference would be contrary to the allegations of both the bill and- the answer. And if it refers to a homeward cargo, there is no evidence- to show that such a cargo was brought by the Spencer; nor, if brought, by what means or out of what, funds it was procured. There is certáinly nothing in the record to connect this item in any manner with the outward cargo, which was seized; nor-to alter the rights of property in it. It does not answer the description which the witness gives of the account-which'he settled in 1818, as-the umpire and mutual friend of the parties; and it is highly probable, that the transaction of which he speaks, may, from the lapse of time, have been confounded with some subsequent voyage of the same,vessel, out of which disputes may have arisen 'between the parties. He states that he has not seen the account, nor communicated with any person about it; and after twenty years have passed, it-ought-not' to be a matter of surprise or reproach if some of the items of an account, and some of the circumstances connected with the settlement of it, were not accurately remembered. At all events; there is nothing in the account of 1818, or any account in the case, that would justify us in saying that the claim, of Dabadie to the indemnity in question was transferred to Curcier, as charged in the bill.

The decree of the Circuit Court is therefore affirmed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this Court, that the decree of the said Circuit Court in this cause be, and tlje same is hereby, affirmed, with costs.


author: Mr. Justice Story

text:
    John Peters, and John Peters, Jr., Plaintiffs, vs. The Warren Insurance Company, Defendants.
    Insurance. Insurance was made to the amount.of eight thousand dollars on the ship Paragon, for one year. The policy contained.the usual risks,'and among others, that of the perils of the sea. The. assured claimed for a loss by collision with another vessel, without any fault of the master or crew of the Paragon; and also insisted oh a general average and contribution. The Paragon was in part insured; • and in November, 1836, in the year during which the policy was in operation, she sailed from Hamburgh, in'ballast, for Gottenburgh, for a cargo of iron, for the United States. While proceeding down . the Elbe,' with a pilot on board, she came in contact with a galliot, and sunk her. She lost her bowsprit, jib-boom, and anchor, and was otherwise damaged, and put into Cuxhaven, a port at the mouth of the Elbe, and in the jurisdiction of Hamburgh. The cap-, tain of the galliot libelled the Paragon, alleging that the loss of his vessel was caused by. the carelessness or fault of those on board the Paragon. Upon the hearing of the cause, the Court decided that the collision was not the result of the fault or carelessness of either ■ side; and that therefore, according to the marine law of Hamburgh, the loss was a gene* ral average loss, and to be borne equally by both parties; that is, that the Paragon was to bear one-half of the expense of her own repairs, and to pay one-half of the value of the galliot; and that the galliot was to bear the loss' of the half of her own value, and to pay one-half of the repairs of the Paragon. The result of this decree was, that the Paragon was to pay two, thousand six hundred dollars, being one-half of the value of the galliot, (three thousand dollars,) after deducting one-half'.of her own repairs, being four hundred dollars. The owners of the Paragon, having no funds in Hamburgh, the captain was obliged to raise the money on bottomry. There being no cargo on board the Paragon, and no-freight earned, the Paragon was obliged to bear the whole loss. Held, that the assured were entitled to recover.
    A loss by collision, without any fault on either side, is a loss by the perils, of the sea, within the protection of the policy of insurance. So far as the injury and repairs done to the Paragon itself extend, the underwriters are liable for all damages.
    The rule, that underwriters are liable only for losses arising from the proximate cause of the loss, and not for losses arising from a remote' cause, not immediately connected with the peril, is correct; when it is understood and applied in its true sense: and as such, it has been repeatedly recognised in this Court.
    The law of insurance, as a practical science, does not indulge in niceties. It seeks to administer justice according to the fair interpretation of the intention of the parties; and deems that to be a loss within the policy which is a natural and necessary consequence of the peril insured against.
    If there be any commercial contract which more than any other requires the application of sound common sense and practical reasoning in the exposition of it, and in the uniformity of the application of rules to it, it is certainly a policy of insurance.
    It -has been held by learned foreign writers on the law of insurance, that whenever the thing insured becomes by law directly chargeable with any expense, contribution, or loss, in consequence of a particular peril; the law treats the peril, for all practical purposes, as the proximate cause of such expense, contribution, or loss. This they hold, upon the general principles of law, applicable to the contract of insurance. In the opinion of the Supreme Court, this is thejust sense and true interpretation of the contract.
    In all foreign voyages, the underwriters, necessarily, have it in contemplation that the vessel insured must, or at least may be, subjected to the operation of the laws of the foreign ports which are visited. Those very laws may in some cases impose burdens, and in some cases give benefits, different from our laws; and yet there are cases under policies of insurance, where it is admitted the foreign law will govern the rights of the parties, and not the domestic law. Such is the known case of general average, settled in 'a foreign port according to the local law; although it may differ from our own law.
    ON a certificate of division from the Circuit Court of the United States, for the District of Massachusetts. •

      This'was a case on a. policy of insurance, dated the 1st of April, 1836, whereby the defendants insured the plaintiffs, for whom it may concern, payable to them,, eight thousand dollars on the ship Paragon, for. the term of'one year; commencing the risk on the 15th day of March, 1836, at noon, at a premium of five per cent. The declaration alleged a loss by collision with another vessel, without any,fault of the master or crew of the Paragon.; and also insisted on a general average and.contribution.
    •The parties agreed that the verdict should b.e rendered by the •jury for the plaintiff or- for the. defendants, according to'the opinion of. the Court, upon the mattérs of law-arising upon-the following statement of the facts of the case. The plaintiffs are the owners of the ship Paragon,-insured by the defendants in part.,
    On the 10th of November, 1836, the vessel sailed from- Ham-burgh, (in ballast, for Gottenburgh, to procure a cargo of iron, for the United States.
    Whilst proceeding down the Elbe, with a- pilot on board, she.came in contact with a galliot called Frau Anna, and sunk her. T-heParagon lost her bowsprit, jib-boom, and anchor,, and sustained other damages, which obliged her to go into Cuxhaven, a port at the mouth of the Elbe, and subject .to the jurisdiction: of Hamburgh, for repairs.
    ■ Whilst lying there, the eaptaimof the galliot libelled the Paragon in the Marine'Court, alleging that the loss of the vessel was caused by.the carelessness or fault of those on board the Paragon, ■ The ship was arrested; -but subsequently released on security being given by the agents of the owners, to respond to such damages as should be awarded by- the Court. ■
    • The'captain of.the Paragon, in his answer,, denied the charges of carelessness, or fault on the part of those on board of his ship; and the Court, after hearing t'he parties and their proof, decided that the' collision was not the result of fault or carelessness on eitherside; and that therefore, according to article first, title eighth, of the Marine Law of Hamburgh, the loss was h general áverage loss, and to be borne' equally by each party: that is, the Paragon was to bear one-half of the expense of her own repairs, and to páy one-half of the value of the galliot; and the galliot wás to bear the loss of ónehalf of her own value, and to .pay oné-half of the expense of the repairs of the Paragon. In conformity with this decision, a general average statement was drawn up by Mr. Oldermann, the Despacheur of Hamburgh; an officer appointed by law, and by whom alone such statements can be prepared..
    In this statement are charged, first, the expenses of repairing the Paragon, after making the deduction of one-third new for old, saving one of her anchors and chains, which was lost at the time of the collision; wages and provisions of.the captain and the crew, during the. detention, and the expenses of surveys, protest, defending the suit, &c., amounting in all to about eight hundred dollars, and one-half of which is charged to the Paragon, and one-half to the galliot.

      Secondly? are chafged the value of the galliot, as by appraisal under an order of Court, of her freight and cargo, the expenses of surveys., protest, prosecuting the suit, &c., amounting in all to about six thousand'dollars, one-half* of which is to be charged to the Paragon.
    The statement concludes thus:. “ Which according to the before mentioned ordinance relating to insurance and average, is to be borne by ship, cargo, and, freight, as general average. The ship Paragon has to claim front the Frau Anna, for half the damages,, say - - - ■ @400
    And the . Frau Anna from the Paragon, one-half the damagesrsay - - - - @3,000
    So that the Paragon must pay - - - - @2,600”
    Which amount the Tribunal of Commerce decreed should be paid ,ihstan[er.
    The owneris of the Paragon, having no funds in Hamburgh, the Captain was obliged to raise the money on bottomry.
    There being ño cargo on board of the Paragon, and no freight earned, the ship has to bear the whole of the general average loss.
    The judges of the Circuit Court were opposed in opinion on the following point and. question, viz. “ whether, in this case, the contributory aihount paid by the Paragon- on account of the collision, was a direct, positive, and proximate effect .from the accident, in such sense as to render the defendants liable therefor upon this policy,”
    ' And on the point and question aforesaid, at the request .of the defendants, the same was-stated by the said judges, and under their direction as aforesaid, it was ordered to be certified under the seal of the said. Circuit Court to the Supreme Court of the United States, at their next session, to be by the said Court finally decided.
    The case was submitted to the Court on printed arguments by Mr. Webster for the plaintiff; and Mr. Theophilus Parsons for the defendants.
    Mr. Parsons for the defendants.
    The principal question in this case is, whether the amount paid on account of the collision between the vessels, is a direct, positive,. and proximate effect from the accident.
    We do not undertake to say that there are no contracts in which the remota causa spectator, but certainly, the law of instirance looks only at the proximate cause! Is the collision, then, in this case, a remote, or a proximate cause? If the law of Hamburgh is the proximate cause, and the collision the remote cause, then we are clearly discharged; because we do not insure against the law~ of Hamburgh, nor against any remote cause. . But we do insure against collision, and the question, therefore, now takes this shape : is the law of Hamburgh, with its requirement of contribution, to be taken as a part of the act of collision?

      If these questions are to be settled rather by the common sense than by the metaphysics of the law, then it would séem to' be clear, that the collision here is the remote cause; for another cause, to wit,.the law of Hamburgh, comes between the collision and the contribution ;• and nbt only so, but it is this law which actually causes the contribution. < The - collision, then, is not the proximate cause, for that is proximate which lies nearest; and here another cause is interposed, and, thus lies nearer.
    How are the authorities'? In this country it is a new question, Und there'are no cases which bear very strongly upon it. But in England, just this question occurred very recently, and was fully reported in the fourth volume of Adolphus and Ellis, p. 420, De Vaux vs. Salvador.- This case, interesting both from its novelty and its importance, was fully considered, first, by Lord Denman, añd then by the Court of Queen’s,Bench, on a motion for a new trial; and the^decision was fully and pointedly for the defence, -on precisely the grounds we have taken here.-- Nothing, can. be more • exact than the analogy' between that case and this; nothing more precise and definite; and as we think, nothing can be more reasonable, than the principles upon which this case is decided in England. Will this Court decide precisely the same case, on precisely opposite grounds ? Some of the continental authorities may seem to be against us. But, not to dwell on the circumstance, that their whole “ doctrine of contract” rests upon the civil law, and that the' difference, in this' respect, between their law and ours, greatly weakens their authority, as precedents for us; not to dwell on this; it is very important to'remember, that they, as Emerigon and the rest,, decide that insurers shall repay the contribution; but they decide under the influence of the law which, requires .the contribution. That is, on the continent, generally perhaps, a rule like that of Hamburgh, dividing the loss from collision, between two innocent-vessels, prevails. .-To the continental writers it is-familiar; they are accustomed to the law, and to all the usages going with the law, which .law is perfectly well-known thereby everybody; and it is -very natural that they should hold insurers liable for the . contribution, as if it were a component part of. the collision : very •natural, and perhaps, very right. Not so,with the English’Courts, or our own: for here the law so dividing this loss, is unknown; we have none here, and our citizens make their bargains under no such conteniplation; and- therefore, the Courts of England decide rightly there, and our Courts should - decide like those of England, and unlike the continental writers, because our laws, and usages are • like those of England, in respect to the liabilities of vessels in cases of collision, and unlike those of the continent. And our laws in respect to the liabilities of the vessels being alike, so should our laws be in respect to the obligations and implied contracts of insurers, in regard to that contract. We insured against damage to the Paragon; but we did not insure against damage- to any- other vessel.
    But there is another view of this subject, which seems to us perfectly decisive The continental authorities not. only decide under the influence of their laws, but their policies differ from, burs in this precise particular. They all contain, in the” enumeration of the risks, “ accidental running foul.” A French policy is .in this form, and the Court are respectfully referred to it. In this policy, the phrase ís> “abordagé fortuit;” and phrases of similar import are in the policies of Amsterdam and Hamburgh; which are all the continental policies we have seen.
    From this it will be obvious, that the only authority where policies like our own were before the Court — that is, the high authority of the English Courts — is directly and most explicitly adverse to-the,claim of the plaintiffs. While the Continental authorities, when they seem to favour it, are adjudicating upon policies which differ from ours in this precise respect, they refer to policies which, unlike-ours, provide expressly for this very case. If would seem, therefore, that the force of thése continental authorities is at once annihilated.
    The rule, causa próxima non remota spectatur, is stronger in England than on the continent; stronger here than in England: the Supreme . Court at Washington having settled it repeatedly and firmly. See Petapsco Insurance Company vs. Coulter, 3 Peters, 222.-Also, Columbian Insurance Company vs. Lawrence, 10 -Peters, •507. Also, Waters vs. Merchants’ Louisville Insurance Company, 11 Peters, 213.
    But let us look at these foreign authorities more closely.
    The ordinances which make the insurers liable are the same which,require equal contribution, in the case of collision‘without fault. An.d this-may be right. Thus, in the Modern Code of Commerce,.in France, article 50 touches the insurer; article 407 regulates. the effects of collision. This is right. 'The liability of the insurér should be conterminous with the liability of an .'innocent vessel. Where ah innocent vessel is held by,law liable for half.the injury of collision, there the insurer should be held to make it good. But nowhere else. It seems, however, that a very serious question exists ■ in' France, as to the liability' of insurers to pay for damages,. where the collision arises from a fault which cannot be clearly put upon either party: and this doubt has arisen from the fact that the Code does not speak precisely upon this point, but expressly makes the Insurers liable only where the collision is wholly fortuitous or without any fault. This, doubt, or difference' of opinion,- goes strongly to show that -the opinion of the continental writers is based upon, and most closely connected.with their own ordinances; and thus it takes greatly, if' not entirely, away the force of their authority, over contracts made in countries where no such law is known;-and it leaves in full power the distinct English authority, which is made under laws and usages, and upon policies that are like, our own.
    If this case is to be likened to other cases of injury front supposed causes, we should suppose any such analogy favourable to us. ■ Thus, it is perfectly well known; that at Buénos Ayres, and in the East, at Sumatra, and in a Chinese port, it has actually happened, and more than once, and the newspapers of the land were full of the story, that for a collision or some mischief done or supposed to be done, by officers or crew, the ship has been seized, and only restored on payment of a heavy ransom; but nobody ever heard of a call on an insurance company for any such loss. Can the case be supposed to resemble rather a case of salvage ? It is true, that the loss by salvage, or by costs of Court, is always cast upon underwriters; though there the peril of the sea may be thought, in some sense, the remote- cause, and the law the proximate cause. But there is a very great difference between these cases, and one that wholly destroys, the analogy. The costs of Court, and-the payment of .salvage, belong to the universal law of .insurance. Every man .who insures or is insured anywhere, does so under the law óf salvage; and his contract, therefore, acknowledges and respects this law. But it is just otherwise in the present case.
    There is another material difference. In the present case, thé contribution is in the nature of penalty, or at least, a satisfaction and compensation made by this vessel to thq other. Not so with salvage, That proceeds wholly upon the theory, that it is for the benefit of the wrecked or endangered vessel, and therefore, for the insurers upon the vessel: and. this principle is repeated in almost every case of salvage, as the reason why more is given to the salvors than • mere wages, or compensation for time and labour. And these, remarks lead us to the. more general view of the case, and to what, we cannot but - think, ought to be the governing and determining principle of it, namely, that where an accident occurs which-is clearly insured against — a collision for .instance — then all those consequences thereof áre. to be taken as parts of the .same thing and as belonging to the collision, which flow from it by as natural and obvious, or inevitable conséquences, or which are caused by a universal or general law, to which all parties to the insurance are supposed to refer equally in their contract. And all other consequences of the collision, except such as these, are to be considered as not necessary and component parts of the accident, but as connected with it by some local law, or some peculiar circumstance; and are, therefore, not to be considered as insured against by parties, who could not be supposed to have contemplated or anticipated them. This last point seems to us to contain the whole gist of the matter; nor can we perceive how- the Court can admit the plaintiff’s claim, without distinctly contravening their own uniform and well-established decisions.
    It may be proper to advert briefly to one other point. It maybe suggested that the defendants are bound by the settlement in Ham-burgh, as by a foreign- adjustment of general average. But the distinction upon that'point is perfectly clear and well settled. It is this: No foreign adjustment can determine for. us, what is a general average; but it may settle,definitively as between all the parties, that general average which is one by our own law, and has certainly happened. In other words, we .can always go behind a foreign adjustment of general average, and deny that the facts happened, or that, if they happened, they constituted a general average; but if facts certainly occurred, which by our own law of insurance constitute a general average, then the adjustment in the foreign port is binding upon all the interests. But it is perfectly clear that this is not the present case, and that by our law of insurance, the facts in the present case would not constitute a general average.
    Mr. Webster, in reply to the argument for the defendants,
    submitted to the Court, that it appeared to him that the 'first positions maintained by the counsel .for the insurance company were questionable, to the extent claimed by him. He says, that however it may be in regard to some other contracts, the law of insurance-looks o.nly at the proximate cause of loss. That this is generally true, may be admitted; but it is not universally true.
    If the proposition were universal, it would .certainly exclude salvage. Mr. Parson’s answer to this, is, that the payment of salvage is a loss, by the universal -law of insurance. This is so: and this proves, not'that no case of loss by a remote cause-is within the law of insurance, but,-on the contrary, that one'such ease, at least, is within that law by universal consent. The same maji be said of costs incurred in the course of judicial proceedings, and of payments on account of general average.
    Mr. Parsons admits that collision is insured against, and that all consequences may be regarded as belonging to it which flow naturally from it, or which are caused by a general law, to which all parties may be supposed to have referred. But how can he distinguish, or what reason is given for a distinction, between consequences which immediately arise from -natural causes, and those which arise as immediately from the operation of the laws.of the place ? A ship suffers collision; the immediate natural effect is injury to her frame. The necessity of an expenditure for repairs is immediately inflicted upon her; and for this expenditure, the underwriter is liable. Another ship suffers a collision, and does injury to the vessel in which-she has come in contact, without- fault. The immediate consequence, by the law of. the place, is a charge on the ship, creating a lien, for a contribution ' to the loss; and this, charge causes the necessity of an expenditure. It is not easy to perceive a reason why one of these cases should be within the policy,-.and the other not within it. The loss, in the latter case, is a' consequence of the accident, as necessary, as certain, and as unavoidable as that in the first. The charge becomes attached to the ship; is an encumbrance, hindering her from the prosecution of her voyage; keeping her where she is, and removable only by an expenditure. It is an obvious • consequence of the accident; and, in the language of Mr. Parsons, an “ inevitable” consequence. The party entitled to the contribution is as sure to claim it, as the carpenter who makes repairs' is to demand payment. The expenditure is as inevitable in one case as in the other.
    Mr. Parsons supposes that the continental authorities are the less to be regarded, as the policies in those countries are different. Thus, he says, that “accidentally running foul” is one of the specifically enumerated causes of loss in a French policy. Be it so. But that fact does not help to settle the question, what loss is to .be regarded •as the proper consequence of running foul. “ Running foul,” or collision, it will not be denied, is as completely within this policy, as within, a French policy;, and the form or particular words of - the policy, in either case, do not affect or touch the question now in con - troversy. How can it be said that the French policies provide for this very case ? Do they expressly provide for the case of contribution for collision ? They certainly do not. They only mention collision, leaving'the law to settle what losses arise from it, and how these losses are to be settled. “ This very case,” in the- language of my learned brother, is not a case in Which any question is made, whether a loss by collision is within a policy, American, English, or French. It is admited to be within .them all. The question, and the only question, in this case, is, whether the loss which hás actually happened, is or is not a loss by collision. And how, then, is the force of those continental authorities, which declare that losses like this are Josses by collision, annihilated ? The slightest reason is hot seen to suppose that the decisions of the continental writers have been founded, either on the forms of the policies in use on the continent, or on any ordinances. The law pf th.e place imposes contribution in eases of collision. The continental writers are authorities to show that it follows, not from any-ordinance' or from any particular words in continental policies, but from the general law of insurance, and the reason of the thing, that the discharge of this contribution is a loss, occasioned by collision.
    Many cases might be put to establish the construction for which we contend.
    The case of capture is one. If a neutral ship, insured against capture, be actually captured, carried in, and-released, on payment of costs .and expenses to the captors, (a very common case,) these costs and expenses are always held to be within the policy.
    Suppose, again, that perishable articles, like provisions, are slightly injured by a storm, lesajhan to the extent of five per cent., but that,before the vessel reaches, her port, the effect of time, acting on- the goods thus slightly injured, is such as to destroy all their value. Is there any doubt that, in such a case, the -whole loss is to be referred to the storm, and so brought within' the policy ?'
    And, in regard to the converse of the case now befere the Court, allow the inquiry, what would have been thought of the rights of the parties, if the galliot herself had not been, injured, bpt had injured the Paragon to th.e extent of a thousand dollars: and suppose the owners of the galliot paid one-half of this sum to the master of the Paragon; could the plaintiffs in this suit have recovered more than the balance ? Could they pocket what they had received from the galliot, and recover the whole amount of the injury from the defendants ?
    With a general remark, these.observations are closed.
    This vessel was insured on time. The commerce of the world, was open to her. ■ She was to. choose her own track, from nation to nation, or from zone to. zone. She was expected, therefore, to fall under the dominion of various codes, and different laws; and to conform, as of necessity she must, to them all, as she'should come within the sphere of their respective influences. She must encounter the dangers which belong to the place where she is, or where she goes; and while acting fairly,- and in good faith, ought to be protected, as within the policy.
   Mr. Justice Story

delivered the'opinion of the Court.

■■This is the case of a division of opinion, certified to this Court by the judges of the Circuit Court for the District of Massachusetts.

■ The defendant, .by a policy of insurance, dated the 1st of April, 1.836, insured the plaintiffs, for whom it may c'oncern, payable to them, eight thousand dollars, on the ship Paragon, for the term of one year, commencing the risk on the 13th of .March, 1836, at noon, at five per cent. The policy contained the usual risks, and among others, that of perils of the sea. The declaration alleged a loss, by collision with another vessel, without any fault of the master or crew of the Paragon; and also insisted on a general average and contribution. The parties at the trial .agreed upon a statement of facts; by which it appeared that the Paragon was owned by the plaintiffs/ and was in part insured by the defendants, by the policy above mentioned. On the.10th of. November, 1836, the Paragon sailéd from Hamburgh, in ballast, for Gottenburgh, to procure a cargo of iron for-the United States.- While proceeding down the Elbe; with a- pilot on board, she came in contact with a galliot, called' the Frau Anna; and sunk her. . By this accident, the Paragon, lost her bowsprit, jib-boom, and anchor, and sustained other, damage, which obliged her to put into Cuxhaven, a port at the. mouth of the Elbe, and subject to the jurisdiction of Hamburgh, for repairs. Whilst lying there, the captain of the galliot libelled the Paragon in the Marine-Court, alleging that the loss of the vessel was. caused by the carelessness or-fault of those on board of the Paragon. The ship was arrested; but was subsequently released on security being given' by the agents of the owners, to respond to such damages- as should be awarded by the Court. Upon the hearing of the cause, the Court decided that the collision was not the result of fault or carelessness on either side, and that therefore, according to the marine law of Hamburgh, the loss was a general average loss, and to be borne equally by each party: that is to say, that the Paragon was to bear one-half of the expense of her own repairs, and to pay one-half of the value of the galliot; and that the galliot was to bear the loss of one-half of her own value, and to pay one-half of the repairs of the Paragon: the result of which was, that the Paragon was to pay the sum of two thousand six hundred dollars, being one-half of the value of- the galliot, (three thousand dollars,) after deducting one-half of her own repairs, (four hundred dollars.) The owners of the Paragon having no funds in Hamburgh, the captain was obliged' to raise the money on bottomry. There being no cargo on board of the Paragon, and no freight earned, the Paragon was obliged tot bear the whole loss.

Upon this state of facts the question arose; whether in this case the contributory amount paid by the Paragon on account of the collision, was á direct, positive, and proximate effect from the accident, in such sense .as to render the defendants liable therefor. Upon this question the jüdges were opposed in opinion; and it has accordingly been certified to this Court for a final decision.

That a loss by collision, without any fault on either side, is a loss by the perils of the sea, within, the protection of the policy of insuranee, is not doubted. Só far as the injury and repairs done to the, Parágon itself extend, it is admitted that the underwriters aré liable for. all the damages. The only point is, Whether the underwriters are liable- for the contribution actually paid on account of the loss of the galliot.

This point does not appear ever to ha.ve-.been decided .in any of the.-American Courts. It is proper, therefore, tó examine it upon principle; and to ascertain what is the true bearing of .the foreign .authorities upon it.

And first-uqon principle: ‘ That the owners of the Paragon have been compelí d to pay this contribution-without any fab.lt on their side, is admitted; that it constituted a proper subject of cognisance by the Marine Court of Hamburgh, the collision having occurred within the territorial jurisdiction of that city, is als'o admitted; and that , the claim constituted a charge or lien upon the Paragon, according to the. local law-, capable of being enforced by a proceeding- in rem, is equally clear. Why, then, should not the loss .be borne by the underwriters, since it was an unavoidable incident or-consequence resulting from the collision ?

The argument is, that in the law of insurance, which governs the present contract, it is a settled: rule that underwriters are liable-only .for. losses arising from the proximate cause of the loss, and not for losses arising from a remote cause, not immediately connected with the. peril. Causa próxima non remota spectatur; The rüle is correct, when it is understood and applied' in its true sense; and, as such, it has been repeatedly recognised in this Court. But the qués.tion, in all cases, óf this sort, i$, what, .in a ust. sens'e, is the proximate cause of the loss ? .

, The argument in the.present case, on the part oí the defendants, is, that the law of Hamburgh, is the immediate of'proximate cause of the loss now claimed, and the collision is' but me remote cause. But surely this is an over-refinement, and savours more of metaphysical than of legal reasoning. -If the argument were to be followed opt, it might be said, with more exactness, that the decree of the Court was the proximate cause, and the law of «Hamburgh the remote cause of this loss. But law, as a practical science, does not indulge in shell niceties. ' It seeks to administer'justice according to the fair interpretation of,the intention of the parties; and deems that to be a loss within the policy* which is a natural or necessary consequence of -the peril insured against. In a just view of the matter, the collision was the sole proximate cause of the loss; and the decree. qf the Coürt did but ascertain and fix the amount, chargeable upon the Paragon, and attached thereto at the very moment of the collision. The contribution was a consequence'of the collision, and not a cause. It was an. incident Inseparably connected, in contemplation of law, with the sinking of the galliot; and a damage immediate direct* and positive, from the collision. In the common pase of an action fqr damages for a tort done by the defendant, no one is accustomed to call thé yerdict of the. jury, and the judgment of the Court thereon, the cause of the loss to the defendant;. It is' properly attributed to the original tort, which gave the-right to damages consequent thereon; which damages the verdict and judgment ascertained; but did. not cause.

But let us see how the doctrine is applied in other analogous cases' of insurance, to which, as much as to the present case, the same maxim ouglit to apply, if there is any just foundation for it here. If there be any commercial contract which, more than any other, requires the application of sound common sense and practical reasoning in the exposition of it) and in the uniformity of the application of rules to it, it is certainly a policy of insurance; for it deals with the business and interests of common men, who. are unused to'deal with abstractions and refined distinctions. Take the case of a jettison at sea, to avoid a peril insured, against. It is a voluntary sacrifice, arid may be caused by the perils of the sea ; but it ;is ascertained long afterwards, and that ascertainment, whether made by a Court of-justice, or by an-agreement of the parties, would, in the sense of the maxim contended for in the argument, be the immediate catfse of the contribution, and the jettison but a remote cause; ánd the violence of the winds and waves a still more remote cause of the jettison. Yet all such niceties are disregarded, and the underwriters are held liable for'the loss thus sustained by the jettison, as a general average. Itis no answer to say, that-this is now the admitted doctrine of the law; and therefore it,is treated as a loss within the policy. The true question to be asked is, why is it so treated ? - General average, as such, is not, eo nomine, insured against in our policies. It is only payable when it is a‘consequence,-or result, or incident (call it which we may) of some peril positively insured against; as, for example, of the perils of the sea'. The case, of a ransom after capture stands upon similar grounds. The ransom is, in a strict metaphysical sense, no natural consequence of the capture. • It may be agreed upon long afterwards : and if we Were to look to the immediate cause, it might be said that the voluntary act of the party in the payment was the cause of the loss. But the'law treats it as far otherwise; and deems the ransom a necessary means of deliverance from a peril insured against, and acting direetly upon the property. The expenses consequent upon a capture, where restitution is decreed by a.Cóurt of Admiralty .upon the payment of all the costs and-expenses of the captors, fall under a similar consideration.* In such cases, the decree of the Court allowing the costs and expenses, may be truly said tobe the immediate cause of the loss; but Courts of justice treat it also as the natural consequence of the capture;

A stiíl more striking illustration -will be found in the case of salvage decreed. by a Court of Admiralty for Services. rendered to’ a vessel in distress. The vessel may have been long before dismasted or otherwise, injured, or abandoned by her crew in consequence of the perils of the winds and waves; and the salvage decreed in such a case, would seem, at the first view, far removed from the'original peril, and disconnected from it: and yet, in the law of insurance, it is constantly attributed to the original peril, as the direct and proximate cause; • and the underwriters are held responsible therefor, although salvage is not specifically, and in terms, insured against.

These are by úo means the only illustrations of the danger of introducing such an application of. the maxim into the law of insurance, as is now contended for. Suppose a perishable cargo is greatly damaged by the perils of the sea, and it should, in conse-. quence thereof, long afterwards, and before arrival at the port of destination, become gradually so putrescent as to be required to. be thrown overboard for the safety of the crew: the immediate cause of the loss would be the act of the master and' crew; but there is no doubt that the underwriters would be liable for a total loss, upon the ground that the operative cause was the perils of the sea. Suppose a vessel which is insured against fire only, is struck by lightning, and takes fire;‘ and in Order to savedier from utter destruction, she is scuttled and sunk in shoal water, and she cannot afterwards be raised; it might be said that the immediate cause of the loss was the scuttling: but .in a juridical sense, it would be attributed to the fire; and the underwriters would be held liable therefor. - Suppose another case, that of a vessel insured against all perils- but fire; and she is shipwrecked by a storm on a barbarous coast, and is there burnt by the natives: it might be said that the proximate cause of the loss was the fire; and yet there is no doubt that the underwriters would be held liable on the policy, upon the ground that the vessel had never been delivered from the original peril of shipwreck..

Illustrations of this sort might be pursued much farther, but it seems unnecessary. Those which have been already suggested sufficiently establish, that the maxim, causa próxima non remota spectator, .is not without limitations; and has never been applied in matter? of insurance to the extent contended for: but that it has been constantly qualified, and constantly applied only in a modified practical sense, to the perils insured against. In truth, in the present case, the loss occasioned by the contribution is (as has beefi already suggested) properly a consequence of. the collision; and in no just sense a substantive independent loss.

In the next plea, how stand the authorities on this subject ? • The only authority which has been cited by the counsel for the defendants, to sustain their argument, is the case of De Vaux vs. Salvador, 4 Adolphus and Ellis’ Rep. 420. That case is certainly direct to the very point now in judgment. It w;as a case of collision, where the as’sured had been compelled to pay for aninjury done to another vessel by the mutual fault of both vessels, according to. the rule of the English Court of Admiralty; which, in a case of mutual fault, apportions the loss between them. Lord Denman, in delivéring the opinion Of the Court, admitted that the point was entirely new; and after referring to the above maxim, said, “ It turns out that the ship (insured) has done more damage than she has received, and is obliged to pay the owners of • the other ship to some amount, under the rule of the Court of Admiralty. But this is neither a necessary ñor a proximate effect of the perils of the sea. It grows out'of an arbitrary provision in the law of nations; from views of general expediency, hot as dictated by natural justice, nor (possibly) quite consistent with it: and cari no more be charged on the underwriters tháñ a penalty incurred by contravention of the revenue laws of any particular state, which was rendered inevitable by perils insured against.”- This is the whole reasoning of the learned judge upon the point; and with great respect, if the views already suggested are well founded, it is not supported by the analogies of the law, or by the principles generally applied to policies of insurance. The' case of a penalty, put by the learned judge, does not strike us with the same force as it' does his lordship. If any nation should be so regardless of the principles of natural justice, as to declare that a vessel driven on shore by a storm should be forfeited because its revenue laws were thereby violated; it would then deserve consideration whether the underwriters would not be liable for the loss,, as an inevitablé incident to the shipwreck. At all events, the point is too doubtful in itself to justify us in adopting it as the basis of any reasoning in .the present case.

The case before the King’s Bench was confessedly new, and does not appear upon this point to have been much argued at the bar. It seems to have been decided, principally, upon the ground of the absence of any authority in'favour of the assured'; and as it appears to us, in opposition to the analogies furnished by other acknowledged doctrines in the law of insurance.

The. same question, however, has undergone the .deliberate consideration of some of the greatest maritime jurists .of continental Europe; and the result at" which they have arrived is directly opposite to that of the King’s Bench. Fothier lays it down as, in his opinion; the clear result of the contract of insurance,, that the underwriters are bound to pay not only the direct loss occasioned by any peril' insured against, but all the expenses which follow .as a consequence therefrom. Pothier, Traité d’Assurance, n. 49. Estrangin, a very excellent modern’ commentator upon Pothier,. (Estrangin’s note,) asserts that there is not the slightest doubt on the subject. Emerigon, whose reputation as a writer on the law of insurance is second to no one, unequivocally adopts the same opinion. Emerig. Assur. ch. 12, s. 14, p. 414—417. In short, all those learned foreigners hold the. doctrine, that whenever the thing insured becomes bylaw directly chargeable, with any expense, contribution, or loss, in consequence of a particular peril, the law treats that peril, for all practical purposes, as the proximate cause of such expense* contribution, or loss. And this they hold’, not upon any peculiar provisions of the French ordinance, but upon the general principles of law applicable to the contract of insurance. In our. opinion this is the just sense and true interpretation of the .contract.

It has been suggested that there is a difference between our'policies and the French policies; the latter containing an express enumeration of fortuitous collision, or running foul, (abdrdage fortuit,) as a peril insured against; while in our policies it falls-only under the more general head of “ perils’ of the sea.” But this furnishes no just ground for any distinction in principle. The reasoning, if. any, to be derived from this Circumstance, would seem rather to apply with more force in favour of the plaintiff, since, even when the risk of collision is specifically enumerated, the expenses and contribution attendant upon it are treated as- inseparable from the direct damage to the vessel itself, as a part of the loss. ' In short, whether a parti-' cular risk is specified in terms, or is comprehended in the general words of the 'policy, the same result must arise, viz. that the underwriters are to bear all losses properly attributable to that peril; and no other losses.

It may be proper to remark, that the rule which wq here adopt, is just as likely, irf‘actual practice, to operate favourably as unfavourably to the underwriters. If by the collision the Paragon had been sunk, and the galliot saved, the underwriters would have had the entire benefit of the reciprocity of the rule. It would sound odd that in such a case the underwriters should be entitled to receive the full benefit- of the Hamburgh law for their own indemnity; and yet ip the opposite Casé, that they should escape from the burden imposed by that law.

In all foreign voyages, the underwriters necessarily have it in contemplation that the vessel insured must, or at'least may be, subjected to the operation of the laws of the foreign ports which are visited. Those very laws may in some cases impose burdens, and in some cases’ give benefits, different from our laws; and yet there are cases under policies of -insurance, where it is admitted that the foreign law will govern the rights of the parties, and not the domestic law. Such is the known case pf a general average, settled in a foreign port according to the local law; although it may differ from our own. Simonds vs. White, 2 Barn. and Cresw. 805. In the presentíase, the policy was on time, and ’.he vessel had, as it were, a roving commission to. visit any foreign port; and of course might well be presumed at different periods'to come under the dominion of various codes of laws, which might subject her to various expenditures and burdens. The underwriters have no right to complain, that when those expenditures and burdens arise from a peril insured against, they are compelled to pay them; for they were bound to have foreseen the ordinary incidents of the voyage. Suppose a vessel injured by the perils of the sea puts into a foreign port to repair, and the license to repair, or the repairs themselves, are burdened with a heavy revenue duty; no one will doubt that the charge must be borne by the underwriters, as an expense incident to the repair: and yet it might truly be sáid not to be the natural result of the peril, but only a charge imposed by law, consequent thereon.

Upon the whole, we are of opinion that it be certified to the Circuit Court, that in this case the contributory amount paid by the Paragon, on account of the collision, was a direct, positive, and proximate effect from the accident, in such sense as to render the defendants liable therefor upon this policy.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Massachusetts, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which was certified to this Court for its opinion, agreeably to the act of Congress in such cases made and provided; and was argued by counsel. On consideration whereof, it is the opinion of this Court that, “ in this case, the contributory amount paid by the Paragon, on account of the collision, was a direct, positive, and proximate effect from the accident, in such sense as to render the defendants liable therefor upon this' policy.” Whereupon it is ordered and adjudged by this Court, that it be so certified to the said Circuit Court.