source: Caselaw Access Project

author: Mr. Justice Story

license: Public Domain

text:
    The Columbian Insurance Company of Alexandria, Plaintiffs in error, vs. Ashby and Stribling and others, Defendants in error.
    The brig Hope, with a cargo, bound from Alexandria, in the District of Columbia, for Barbadoes, insured in Alexandria, was assailed, while standing down the Chesapeake bay, by a storm which soon after blew' to almost a hurricane. The vessel was steered towards a point in the shore for safety, and was anchored in three fathoms water; the-sails were furled, and all efforts were made by using the cables and anchors to prevent her going on shore. The gale increased, the brig struck adrift, and dragged three miles; the-windlass was ripped up, the chain cable partéd, and the vessel commenced drifting again, the whole scope of both cables being paid out The brig tli^n brought up below Craney Island, in two and a half fathoms water; where she thumped or struck on the shoals, on a bank, and her head swinging round brought her broad side to the sea. The cap-, tain finding no possible means of saving the vessel and cargo, and preserving the lives, of the crew, slipped her cables, and ran' her on shore for the safety of the crew and. preservation of the vessel and cargo. The vessel was run far up on a bank, where after-the storm she was left high and dry, and it was found impossible .to get her off. The-lives of all the persons were saved; the whole cargo of the value of $5335, -insured for-$4920, was taken out safely, and the vessel, her tackle, &c,, were sold for"$256. Held; .that the insurers of the' cargo were liable for a general average.
    The question of contribution cannot depend upon the amount of the damage sustained by-the sacrifice of the property, for that would be to say, that if a mail lost all his property,, for the common benefit, he should receive nothing; but if he lost a-part only, he should receive full compensation. No such principle is applied to the - case of good sacrificed, "for the common safety; why then, should it be applied to the total loss of the ship .far-"the like purpose? It is the deliverance from an immediate impending peril, by a common sacrifice; which constitutes the essence of the claim. It is the safety of the property,, and not the voyage which constitutes the foundation of general average.
    A consultation by the captain with the officers of the vessel, before running her on shore, with a view to her preservation, and . that of -the passengers and cargo, may be highly-proper, in cases which admit of delay and deliberation, to prevent the imputation of' rashness and unnecessary stranding by the master. But if the propriety and. necessity , of the act, are otherwise sufficiently made out, no objection can be made to it.
    The freight of a vessel'totally lost by being run on’ shore for her preservation and that of the crew and cargo, ought to be allowed to the owner of tire vessel as the subject of' general average, the cargo of the .vessel having been, saved by the stranding..
    IN error to the Circuit Cohrt of the. United States, for the county of Alexandria, in. the District of Columbia.
    This was an. action instituted in the. Gircuit Court of the United States, against the Columbian Insurance Company, for the. purpose of ascertaining whether the plaintiffs, Ashby and Stribling, and Peter Hewit, were entitled to. recover against the cargo, of the brig Hope,.for a contribution for ah average loss; The Columbian Insurance Company were the underwriters on the cargo; and an agreement was-made'between the parties to. the cause, before the-trial, that “without regard to form, the real question between them •should he contested.” Under this; agreement the cause was. triéd,, and the jury found the following, special verdict.
    ’ “We, of the jury" find, that on thé 27th. day.óf May, 1825, the; brig .Hope sailed from Alexandria on a voyage-tó Barbadoes, that on the .said vessel standing down.the Chesapeake bay, the weather became thick and foggy, and that it appearing in the then state of the weather imprudent to proceed to sea, the captain kept away for Sewall’s Point, for the purpose of making a harbour, where he anchored, with the best bower anchor in three fathoms water; that all-sails were furled, and a good, scope of cable paid, out, the wind then blowing very fresh from the north-east; that at ten o’clock, P. M., on the 3d day of June, he .let the small bower anchor under foot, and payed out the best bower anchor until both cables bore a strain; that the gale still increasing, the kedge anchor was iet go; that about midnight, the vessel struck adrift; that then the whole scope of the cables were paid out till they all bore a strain, when she fetched up; that the gale continued on the' following day to increase, and the sea being very heavy, at. one o’clock she struck adritt again and dragged three miles, when she brought up; that the gale then increased to almost a hurricane, she’ ripped up the windlass, parted the chain cáble, and commenced drifting again, the whole scope of both cables being paid out. That she then between eleven and twelve o’clock brought up about three quarters of a mile below Craney Island in two and a half fathoms water, amongst and in sight of’ a number of other vessels, that ‘she then thumped or struck on the shoals on a batik, and her head swinging around to the westward, brought her broadside to the wind and heavy sea; that the captain, in this situation, finding no. possible means of saving the vessel or cargo, and preserving the, crew, 'slipped his cables, and ran her on shore for the safety of the crew and preservation of the vessel and cargo, that the vessel, run far upon the bank, where, after the storm, she was left high and dry, and it was found impracticable to get her off.
    “ We find that the plaintiffs in this action were the owners of the said brig; the value of the said brig was $3000; that one-third part of the brig had been insured by the said Columbian Insurance Company; that no insurance had been effected for the remaining two-thirds. We further find, that the whole of the cargo on board said brig was of the value of $5335, of which; the said Columbian Insurance Company insured $4920. We further find, that the cargo was afterwards taken out safely, and that the vessel, her tackle, &c., were sold for the sum of $256 40. If, on the matter aforesaid, the law be for the plaintiffs, then we. find for the plaintiffs, and ássess théir damages to the sum of fifteen hundred dollars; and if-the law be for the defendants, then we find for the defendants.”
    Ift August, 1825, the Circuit Court gave judgment in favoui of the plaintiffs,'for $1249, and the defendants prosecuted this writ of error.
    The cause was argued by Mr. E. J. Lee, and Mr. Jones, for the plaintiffs in error; and by Mr. Semmes, arid Coxé for the defendants.
    The counsel for the plaintiffs in error contended,

      1st. That the plaintiffs in the Circuit Court, have not shown such a case as authorized any verdict against them.
    2d. That the special .verdict does not find such facts as authorize the judgment of the Circuit Court.
    3d. If the defendants are liable at all for an average loss, the plaintiffs have already, in their action on the policy upon the vessel, obtained judgment for $2000; which including the amount of the sales of the vessel makes $2256 40,'being more than the amount insured on the vessel, and the average loss, as- reported by the auditor.
    4th. That the facts which were proved by the survey and depositions in the suit on the policy on the vessel, form a part of the special verdict in this case. If they do, then the judgment of the Circuit Court ought to have been for the plaintiffs in error; of if the evidence in the record of this case is uncertain, then, for this reason, the verdict Ought to be set aside.
    ■ The Court having considered the agreement made before the trial, as excluding all the points presented on the part of the plaintiffs, in error from examination, except the question of the liability of the plaintiffs in error as the insurers on the.cargo of the brig Hope, for an average contribution for the loss of the vessel, the arguments on that question are alone given.
    Mr. Lee and Mr. Jones contended,
    that the maritime -law imposed on the owners of the cargo no obligation to contribute, unless the vessel was saved. The total loss of the vessel exempted the cargo from oontribution. Cited 9 Johns. Rep. 9. Phill. on Insurance; 339.
    It is admitted that whatever the master of a vessel, in distress, does for the general benefit of the whole, is binding on all interested, and all are responsible for his acts. Cited Lex Mercatoria. Stevens on Insurance. 2 Wash. C. C. R. 299; 2 Serg. and Rawle, 331. But in this case, the acts of the master were not of this character; and a very important part of the duty imposed upon him by the perils to which, he was exposed, was omitted. He did not consult the officers of the vessel, befofe the vessel was run on shore.
    There must be shown an inevitable necessity, for the stranding of the vessel; and that the same was the sole cause of the saving of the vessel and cargo; to create an obligation by the cargo to contri-, bute; and the special verdict should have found all the facts. The facts are not found, but the evidence of the facts. The verdict Pnly says, that the captain finding the existence of the necessity ran the vessel on shore. It is denied that’ the cases cited by the counsel for the defendants in error are authority in this Court. The principle of the maritime law is, that the running .the vessel on shore must be for the common benefit of all the property, both the vessel and the cargo; and this cannot be done by the al Piute loss of the vessel. The captain had no authority to do an act of this kind. The sacrifice cannot be made for the. benefit of what is absolutely and totally destroyed by it. The .sacrifice must not be for the vessel, the cargo or the passengers, but for all; and it must be so far successful as that part shall be saved by it.
    Wé must look to the Roman Code for the principles which are to decide, this question. ' It must be decided by principles of public law. 'Cited, 9 Johns. Rep. 9, and the cases referred to. The' authoT rities are clearly in favour of the case there decided; and a great many of the authorities in the English writers concur .on the question.
    All the law upon this question is derived from the Rhodian law; and by that law the salva navi is indispensable to create the liability for the- contribution by the cargo forthe injury done to the vessel. The saving of the ve'ssel is essential. Cited, Holt- on Shipping, ch. 7; Consolato del Mare by.Boucher; Molloy’s Commercial Law.
    It is all-important that the question presented by this case shall be decided, and that the law of average shall be uniform in the United States. Different rules should not prevail in the states of the United States., A resort to the first principles 'of the maritime law, and ascending to the fountains of the code, will alone enable the Court to come to a decision which will have this influence and effect.
    Mr. Semines and Coxe for the defendants, contended,
    that the special verdict in the cáse shows that the running the vessel ashore, was a voluntary stranding and loss of the brig for. the preservation of the vessel, crew and cargo'; and that such stranding and loss of the brig, the cargo being saved, entitles the defendants in error to recover of the owners of the cargo (or of the underwriters, their substitutes) contribution as'for a general average.
    Mr. Semmes for the defendants in error.
    This is the case of a special verdict, finding all the facts in evidence which are material to the question before this Court. The facts found are briefly these: That the brig Hope, on. a voyage from Alexandria to Barbadoes, was assailed by_ a violent storm while proceeding down Chesapeake bay in order to get out to sea; that she was for several days pressed,'by the fury of the winds and waves, and to prevent drifting on á lee shore, all her anchors were, at different times, let go and the cables paid out until they állbore a strain. That while in this situation Jthe violenceof the storm increased until the destruction of the vessel, crew., and cargo seemed inevitable. Finding-there was rió hope if he remained at'anchor, certainly none if he - attempted to breast the fury of the storm, and that nothing remained .for him but the last resort of running the vessel on shore in order to save all or something, the captain resolved on-this desperate step. Accordingly, the vessel, then riding at, anchor, the captain slipped his cables and ran her ashore, in the words of the special verdict, “ for the safety of the crew and the preservation of the vessel and cargo.” The vessel ran high and dry,, and it was found;impracticable to get her off. ..She proved a total loss; and the crew and cargo were saved. The cargo was reshipped in another vessel; and'tfie owners of the vessel now are suipg the underwriters on the cargo for contribution , tó an average loss of the vessel , and freight, bécausé of a yoluntary sacrifice of that vessel and freight for the benefit of all; the result'being the preservation of the.cargo.' The act was done calmly -and'voluntarily for the common safety. The question now to be.determined is, whether the part saved (the cargo) shall contribute to the parts lost, (the vessel and freight,) in .general average.
    The question presented to this Court is one of great importance to the commercial world. It hás never been settled bythe tribunal of highest resort in any country,-and now, for the first time, comes up fór final adjudication. ' The maritime writers of Europe have held opposite and conflicting opinions. _ Bynkershoek, Jacobsen, Valin, Voet, and Browne, have maintained-the doctrine for which thedefendants in error are- now contending. Emerigon, Stevens, and Hubertos stand nearly alone oh the opposite side: The marine-ordinances of the European states have been uniform in their provisions: those of Antwerp, Kónigsberg, and Friezeland, have been for the do.ctrine we support. The Ordon'anza de Bilboa has embodied the same just and enlightened view taken by Bynkershoek and the other writers and ordinances named;, while to the.Rhodian law, as handed down to.us-by the. civilians, though containing nó-express provision for the casé, we look for the foundation and .the reason of our rule.' The Courts have been . in conflict likewise. The marine judges of Amsterdam decided against the contribution, in such a case; but the fallacy of their judgment has been ably.exposed by Bynkershoek. The question has never come directly.before any Court, under the jurisdiction of xeat Britain.- In this country the-Supreme Court of New York have decided against the contribution. - The .Circuit Court of the United States for the third circuit; and the Supremo Court of Pennsylvania have determined in favour of it. The Court below awarded a judgment of contribution on this special verdict; the. present writ of error has been prosecuted, and this Court are now to pronounce and say,'which is the. better and the juster rule,
    • The law of Rhodes, “De jactu,” established the principle of average, in cases of jettison, of part of the cargo for the safety of all-. The provision is express in respect-to jettison, büt no other case is named. The expression of one case will not, however, exclude others from coming within its reason. The case put in the Rhodian law is by way of example or illustration, and not as implying that average is exclusively confined to cases of jettison. -To show this clearly, We need only resort to the authority of Emerigon and his followers. With 'k solitary and almost lüd.icrgus exception they admit that if a ship be voluntarily stranded, when in peril at sea, when chased by an enemy or by pirates, for the common safety, and be subsequently gotten off and proceed on her voyage, then, that the cost of repairs shall afford- a claim to the ship owners for a general average/ If the ship be partially destroyed there shall be an average; if. the loss be total, there shall be none. Such is the doctrine of Emerigon, and of the Supreme Court of New York.
    Stevens in his work.on Average, p. 36, has gone further, and denies the average in cases of partial damage to the ship, as well as of total loss. He admits the law to be against him; he admits the uniform practice at Lloyds to be against him, a,s well as thé opinion of eminent members of the English bar. We may. pass him by, and content ourselves with those who admit the contribution in cases of partial loss. Now, it is from the Rhodian law that the' advocates of this latter doctrine draw their authority. Let us go back to the great and fundamental principle of average established by that law, and see if it does not support a broader and more equitable, construction.
    To afford a case for applying the doctrine of average, the loss sustained must be a voluntary loss.for the common safety, when all are in imminent peril; and there must be a saving of some part thereby. The part saved shall contribute to the part lost. If goods are"thrown overboard in. a storm for the purpose of lightening the vessel, and she and the remaining goods are saved, all shall come into contribution for the part lost; nemo debet locupletari aliena jactufa.- If .damage, be done voluntary to a ship to effect a jettison, as by cutting her sides, or the masts or rigging are cut away in a storm to lighten ■ the ship, these losses are subjects of a general-average contribution. So, the doctrine of our opponents in cases of a voluntary stranding, where the ship is got off, with partial damage. But if the ship is totally lost, they say there shall be no contribution. Do not the reason and the equity of the rule as to average, apply as clearly and' forcibly to cases of a total loss as to cases of a partial loss ? Where is- the ground for drawing a distinction ? > If a distinction be drawn as contended for, it involves its advocates in-this glaring inconsistency and injustice; that where a párty has suffered a voluntary minor evil for the benefit of another, that other shall contribute to his loss’ out Of the benefit resulting; but if, perchance, the voluntary suffering encountered should reach beyond a certain limit, and the sufferer should lose every thing'he risked, then he is unworthy of any compensation. Where there is a small equity, there shall be relief; where the equity is increased tenfold, there shall be none.. Such.is the doctrine, of the plaintiffs in error. It,remains for those who draw the distinction to show the necessity and the reason of it..
    . ít is contended that the captain should have consulted with his Officers-and crew before stranding the vessel, and that the special verdict does not find this fact. It has long since been conclusively settled that such previous consultation and deliberation are not ner cessary.. Sims vs. Gurney and Smith, 4 Binney, 5131 '
    It is likewise held on the other side, that even if there should -be contribution for the vessel in this case, there should be none for thé freight. There is no foundation for this objection. The freight follows the fate of the vessel; if the vessel be lost, the freight is also lost. If there was any merit in the voluntary .stranding of the vessel whereby she was lost, the same merit attaches in respect to freight; for that was destroyed by the self same voluntary act. .
    Mr. Semmes referred to the following authorities: — 2'Kent’s Com. 191. Marsh, on Ins. 535 et seq. ■ Da Costa vs. Newnham, 2 -Term.' Rep. 407. The Copenhagen, 1 Rob.-Adm. Rep. 494. Walden vs. Leroy, 2 Caines, 263. Henshaw vs. Marine Ins. Co., 2.'Caines 274. Jacobson’s Sea Laws, 346. 348. 350. 2Bro. Civ. andAdim-Law, 199. Bynk. Qusest. Im. Priv, b. 4, ch. 24, tit. de jactu, 424. 2 Magens, 200. Voet, Com. ad Pand., 690.. Valin, 168. 1 Emerigon, 602. 612. 615.' Sims vs. Gurney and Smith, 4 Binney, 513. Grayetal. vs. Wain, 2'Serg. and Rawle, 229. Caze et al. vs. Reilly, 3 Wash. C. C. Rep. 298, Story’s Abbott, 342. 349, note. Bradhurst vs.'Col. Ins. Co.,'9 Johns. Rep. 9. 3. Kent’s Com. 233. Stevens bn Average, 36. Eppes vs. Tucker, .4 Call. 346; 4 Peters, 139. 11 Serg. and Rawle, 69. \ ' . . ' ’
   Mr. Justice Story

delivered the opinion of the Court.—

This is the case of a writ of error to the Circuit Court of the District of Columbia, for the. county of Alexandria. There are many irregularities in the proceedings on the record; but as, in our judgment, they are all waived or cured by the agreement of the counsel, spread upon the- record, which is, as to the matters in controversy in the suit, conclusive upon the parties, and. constituted the basis of the proceedings at the trial and of the special verdict -on which the judgment was given for the original plaintiffs in the Court below; it is unnecessary tó discuss their intrinsic force or validity. The main question in- the case is, whether the voluntary stranding of a ship in ,a casé pf imminent peril, for the preservatipn of the crew, thé ship, and cargo, followed by a'totakloss of the ship, constitutes a general average, for which the property saved is bound to contribution. We say -that this is the main question, -because the special verdict finds that there was a voluntary running on shore of the brig Hope; that there was no other possible means of preserving the cre-w, the ship, and the cargo; that the running ashore was for this express -object; and that,'after the storm was, over, the brig was .left high and dry., and if was found impracticable to get her off: so that, the facts are sufficiently' precise and full to present the qúestion of general average in its most simple and comprehensive form. Accordingly our attention will, in the first instance, be addressed to the consideration of it. - • ' '

.Upon this question the maritime jurists of continental Europe are not entirely agreed in opinion; and our own.jurisprudente presents conflicting adjudications. It -becomestthe duty of this Court, therefore, to examine and weigh these opposing opinions* and to ascertain,-as far as it may, the true-principle which blight to govern-us on thp present occasion.

It' is admitted on all sides, that the rule as to general average is derived to us from therRhodian law, as promulgated and adopted in the Roman jur. sprudence. The Digest states it thus. If goods are thrown overboard In order,to lighten a ship, the loss incurred for the :sake of all shall be made good by .the contribution of all. Lege Rhodia cavetur, ut si levand® navis, gratiá jactus mercium factus est, omnium contributions sarciatur, quod pro omnibus datum ést. Dig. lib. 14, tit. 2, c. 1. That the case of jettison was here understood to be put ás a.mere illustration of a more-general principle, is abundantly clear from the.context of the Roman law, where a ransom paid-to pirates to redeem the ship is declared to be governed by the same rule. Si navis a piratis redempta sit — omnes conferre debere. Dig. lib. Í4, tit. 2, c.'2, s. 3. The same rule was applied to the case, of cutting, away or throwing overboard of the masts or other tackle of the ship to avert the impending calamity; Dig. lib. 14, tit.' 2, c. 3, c. 5, s. 2; and the incidental damage occasioned thereby to other things. Without citing the various passages from the Digest which authorize this statement, it may be remarked that .the Rbman law fully recognised and enforced the leading limitations ■ and conditions to justify a general contribution, which have been ■ ever since steadily adhered to by all maritime nations. First, that the ship and cargo should be placed in a(common imminent peril; •secondly, that there should be a voluntary sacrifice of property to avert that, peril; and,-thirdly, that by that sacrifice the safety of the other property should be presently and successfully attained.’. Hence, if .there - was no imminent danger or necessity for the sacrifice, as if ’ the jettison was merely to lighten á ship too heavily laden by the faijlt of the master in a tranquil sea, no contribution was dtie. See Abbott on Shipp, p. 3, ch. 8, s. 2, 1 Emerig. Assur. ch. 12, s. 39, art. 7. p. 604. Ib. s. 40, p. 605. So, if the ship was injured or disabled in a storm, withbut any voluntary sacrifice; or if she foundered or was shipwrecked without design, the goods saved were not ..bound to contribution. Dig. lib. 14, tit. 2, c. 2,’s. 1. Ib. c. 7. 1 Emerig. on Assur. ch. 12, s. 39, p. 601-603. On the other hand, if the object of the'sacrifice, was not attained; as if there was a jettison to prevent .shipwreck, or to get the ship off the strand, and. in either case it was not attained, as. there'was no delivérance from the bbmmon-peril, ño contribution was due. Dig. lib. 14, tit. 2, c. 5, c. 7. 1 Emerig, on Assur. ch. 12, s. 41, p. 612, p. 616. The language of the -Digest upon this last point is very expressive. Amiss® navis damnum cbllationis consortio non sarciturper eos, qui ¿aerees suas' naufragio liberarunt — nam hujus .mquitatem túne admitti placuit, cum' jactus remedio cseteris. in communi periculo, salvá, nave, consultum est. It is this language, which seems in á great -measure to. have created .the only doubt among the commentators as to the extent and operation of the r-ule; some of them having supposed that. the" safety of the ship (salvá nave) for the voyage, was in all cases indispensable to. found a claim to contribution; whereas others, with, far more accuracy and justness of interpretation, have held it to apply ¿s a.mere illustration of the general doctrine, to a jettison, made in the particular case, for the very purpose of saving the ship and tfie residue of the cargo. In truth, the Roman law does not proceed upon any distinction as to the property sacrificed, whether it be ship or cargo, a part or the whole; but solely upon' the ground that the sacrifice is voluntary, to 'avert an imminent peril; and that it is in the event successful by accomplishing that purpose. And, •therefore, Bynkershoek has not hesitated, to declare the general principle to be, that whatever damage is done for the common bene*fit of all- is to bé contributed for by all; and that as.this obtains in a Variety of cases,, so especially by the Rhodian law it obtains .in cases of jettison. Genefaliter placeré potest, damnum pro utiíftate coihmuni' factum, commune esse, utque in variis speciebus id obtinere aliunde constat, sic ex lege Rhodia, cum máxime obtinet in jactu. Bynker. Quest. Priv. Juri. lib. 4, ch. 24, introd.

These remarks seem proper td.be made in order to meet-the suggestions thrown out at the. argument, with'reference, to the actual, bearings of the Roman law on the question before the Court; and they may also serve in some measure to explain the true principles by which the question ought to. be decided.-

In examining the foreign jurists, it will be found that there is far less disagreement among rihem than has been generally supposed. ■All of them that have come within our own researches, or those of counsel, admit that a Voluntary stranding ófahe'ship constitutes, a case of general avérage; if there is not a total loss of the ship. Emerigon in one -passage lays.down the doctrine in the following broad language. . “ It Sometimes happens that, to escape from an enemy or-to avoid an absolute shipwreck, the ship is run on shore in a place which appears the least dangerous.- The -damage suffered on this account is -a general average,-because it has been done for th'e common safety.” 1 Emerigon Assur. ch. 12, s. 13, p.,408. .-And for this he relies upon the Consólato del' Mare, upon Roccus, Targa, Caseregis, and'Valin. It is true that in another place he says, “ The.damages which happen by stranding are a simple average for the account of the. proprietors;” citing the French ordinance: and then adds, “ But it wifl be. a general average , if the stranding has been voluntarily made for . the .common safety, provided- always that ■the ship be again set. afloat; for if the-stranding be followed by shipwreck, then it is, save who can.” 1 Emerigon Assur. ch. 12, s. 13, p. 614. And he then refers to the case of jettison, where the ship .is not saved thereby, in which case there is no-, contribution. Emerigon Assur. ch. 12, s. 13, p. 616. Now the analogy between 'the two cases is far from'being so cléar or só close as Emerigon has supposed.' In the case of the jettison to avoid foundering ór shipwreck,-if the calamity occurs, the object is not attained. But in the cáse of, the strandnig, whatever is saved, is saved, by the common - sacrifice of the ship; although the damage to her may have been greater than was expected. Surely the question of contribution cannot depend upon the amount of the damage sustained by the sacrifice; for that w6uld.be to say, that if-a man lost all his property for the common benefit, he should receive nothing; but if he lost a part only he should receive full compensation. No such principle is applied to the total loss of goods sacrificed for the common safety: why then should it be applied to the total loss of the ship for the like' purpose ? It may be said-that unless the ship is got' off the voyage cannot be .performed for the cargo; .and the. safety and piosecution of the voyage are essential to entitle the owner to a-contribution. But this principle is nowhere laid down in the foreign authorities; and certainly it has no foundation in the Roman law. It is the deliverance from an immediate impending peril, by a common sacrifice, which constitutes the essence of the, claim. The Roman law clearly shows this; for by that law it was .expressly declared,, that if by .a jettison in a . tempest, the ship was saved from the impending peril, and afterwards was submerged in another place, still contribution was due from- all the property which might jbe fished up, and saved from the calamity. Sed si navis, quae jntempestate jactio mercium unius mercatoris, levata est, in alio loco submersa est, et aliquorum merces per urinatores extractas sunt, 'data mercede, rationem haberi debere ejus, cujus merces in navigations levandae navis causa, jactse sunt ab his, qui postea sua per uri.natores servaverunt. Digest, lib. 14, tit. 2, l. 4, s. 1. Boucher Instit. au Droit Maritime, (1805,) p. 449. Abbott on Shipp. part 3, ch. 8, s. 13. And, besides, in a case like that now before' us, the cargo might be transshipped in another vessel, and the voyage be successiully performed.. But, in truth, it is the safety.of the .property, and not of the voyage, which constitutes the true, foundation of general average. If the" whole cargo were thrown overboard to insure the safety of the ship, the voyage might be losfbut nevertheless the ship must contribute to the jettisón. Why, then, if the ship is totally sacrificed for the 'safety of the cargo, should not the same rule apply ? Suppose a ship, with a cargo of cotton .on board, is struck by lightning and set on fire, and it becomes indispensable for the salvation of the cargo to sink the ship on a rocky bottom, and she is thereby totally lost — would not this constitute a case of contribution ? ■ Suppose a cargo of lime were accidentally to take fire in port, and it became necessary, in order to save the ship, that she should be submerged,and the cargo was thereby totally lost, but the ship was saved with but a trifling injury; would it not be a case of contribution ?

As far ás we know, Emerigon stands alone among the foreign, jurists, in maintaining the qualification that it is necessary to a general average that' the ship should be got afloat again after a voluntary stranding. Valin certainly does no.t support it; for he only states, that if to avoid a total loss by shipwreck or capture, the master runs his vessel ashore, the damage which he shall suffer on that accotmt, and the expenses and the charge of putting her afloat again, áre general average; and he gives the reason, because all.has been done for the .common safety. 2 Valin, Com. 168. Ib. 205, 207, 209. See, also, 2 Bell. Com p. 589, 5 edit. 1826. Beyond all doubt, Valin is correct in this statement; but then he was merely.discussing the pbint, whether the expenses of getting the ship afloat was, when she was got off, a subject of general average; and not the points whether, if the ship, was totally lost, the. whole lbss was not a general average. His reasoning wás diverso intuitu.

On the-other hand, the Consolato del Mare, one of the earliest and most venerable collections of maritime law, lays.down the general rule, without any such qualification. Consolato del Mare, ch. 192, 193; Boucher, Consult dé la Mer, rch. 195,19.6, s. 487 — 494 ; as also does Roccus, in his Treatise de NgVibus et Naut. RoccUs de Nav. et Naut. n. 60. Indeed, it may be found stated in the samé general form in the Roman law, where it is said, without referring to the manner and extent - of the. damage, that the whole, damage voluntarily done to the ship for the common good, must bé borne by a common contribution. Sed si' volúntate vectorum, vei propter aliquem metum id detrimentum factum sit, hoc ipsum sarciri oportet. Dig. Lib. 14. tit. 2, c. 2, s. 1, c. 3,1. 5, s. 1. And Vinnius in his commentary, after speaking of an involuntary shipwreck, in which case there shall be no contribution, adds; that the damage suffered by a sacrifice made for the good of, all, to avoid a common danger,, is to’ be made good by the contribution- of all. Vinnius Packiittn Ad Legem Rhodiam,c. 5. Voet, in his commentary on the Digest, is far more explicit, and asserts, that if the ship is voluntarily run on. shore for the common safety, and thus has perished, the goods being saved, contribution is due. Voét ad Pand. lib. 14, tit. 2, s. 5. Bynkershoek has treated the' very question in his usual clear and luminous manner. After citing a decision of cfertain maritime judges of Amsterdam, who held that if a cable of the ship was voluntarily cut to avert a peril, and thereby the anchor as well as the cable was lost, contribution should not be made for the anchor, becausé there could not be said' to be. a voluntary jettison-; and who, also, for the like reason, held, that if the ship was. run on shore and lost, the goods should not contribute, because there could be no contribution unless the ship was saved, (quia nihil contribuitur, nisi salva nave:) he expressed his pointed disapprobation of the decision, saying, that it exhibited very little acuteness, for in all such cases the, goods cannot otherwise be saved, and the peril compels us to thé act; and the safety of the ship, in case of a jettison, is not otherwise sought than, the ship being saved, the goods may thereby be saved: and, therefore, the goods saved, and the damage occasioned thereby, ought to be subject to contribution. And he accordingly holds, that the loss of the ship, like the loss of her tackle, is to be deemed a general average, wherever she is sacrificed by a voluntary stranding for the general safety; insisting that this doctrine is fully supported by other authorities cited by him. The doctrine of the Amsterdam judges upon the principal point before them, has been utterly repudiated by all maritime nations in later times, as it seems to have had no foundation in any antecedent adjudications. See Cleirac Us et Coutumes de la Mer, art. 21 — 23. Indeed, there are early positive ordinances of some of the maritime states, which positively provide for the very case of a total loss of the ship by a voluntary stranding as a general average; (as, for example, the ordinance of Konigsburg,) and others in which it'is not usually, if not necessarily, implied. ( See 2 Magens, 200, &c. It deserves consideration, also, that the modern maritime writers, Jacobsen, Benecke, and Stevens, all admit this is to be the result of the foreign jurisprudence and ordinances. Jacobsen Sea Laws, by Frick, b. 4, ch. 2, p. 358. Benecke on Insur. 219 — 221. Stevens on Average, 33, 34, edit. 1824. See 2 Bell’s Com. p. 589, 5th edit. 1826. Stevens, also,, notwithstanding his own opposition to th^, rule, admits that it appears to have, been the practice at Lloyd’s, as far back as the time of Mr. Weskett; ánd that recent opinions of eminent counsel in England, taken pn the very point, fully admit- and confirm it. Stevens on Average, 33 — 35, edit. 182,4. Dr. Browne, in his Treatise on the Civil and Admiralty Law, adopts the same opinion, saying, It has been disputed whether, when .a ship was voluntarily .run'ashore and lost,, but the cargo saved, it should contribute, because the rule was that no contribution took place when the ship was lost. But it was truly .held that the rulé would -be absurdly applied to á ease wheré the ship was grounded purposely to save the merchandise, and that with success.” 2 Browne’s Civil and Adm. Laws, 199

From this review of some,of the leading opinions in foreign jurisprudence, brief and impe'rfect as it.is, it seems to us that the weight of authority is decidedly in favour of the present.claim for general, average.

In respect .to domestic authorities, we have already had occasion to intimate that there are conflicting adjudications. In Bradhurst vs. The Columbian Insurance Company, 9 Johns. Rep. 9, the Supreme Court óf New York held that where, a ship is voluntarily run ashore for the common good, and she is afterwards recovered, and performs the voyage, the damages resulting from this sacrifice, are to^e home as a general averaged But that where the ship is totally lost, it is not -a general average. The ground of this opinion, as pronounced by Mr. Chief Justice Kent, seems mainly to have been, that this was the just' exposition of the Rhódiari and "Román law, and that the weight of authority among foreign jurists clearly Supported it. With, great respect for the learned Court, we.have felt ourselv.es compelled to come to an opposite conclusion as to the true interpretation of the Roman text, and'of. the continental jurists. We agree with the learned Court, that when a ship is voluntarily Tun ashore, it does not,- of"course, follow that she is to he lost; The intention is not to destroy the Ship, but to place her in less, peril, if practicable, as well as the cargo. The act is hazardous to the ship and cargo, but it is done to escápe from- a more pressing danger; such as a storm, or the pursuit of an enemy, or pirate. But, then, the act is doné for the. common-safety; and if the, salvation of the cargo is accomplished thereby, it is.dígicült to perceive why, because from inevitable calamity the damage, has exceeded' the intention or expectation of the parties, the whole sacrifice should be borne by the ship owner, when it has thereby accomplished the safety of the cargo. If one mast is cut away, and thereby another mast is unexpectedly and unintentionally álso carried away by the falling of the former, it has never been supposed , that both did hot come into the common contribution. If in the opening of the hatches, and the •jettison of some godds to lighten the ship, other goods are unexpectedly. and unintentionally, but accidentally, injured or destroyed, it has qever been doubted that; the latter were , to be brought into contribution, to the extent of the loss or damage.done to them. It is not like the case .of saving from a fire, tamquam ex incendio, save who cani. But it is like the saving of the cargo from destruction by fire, by the scutling and submersion of the ship.. Upon principle, therefore, we cannot say .that wé are satisfied that'the doctrine of the Supreme Court of New York can be maintained; for the general principle certainly is, that whatever is sacrificed voluntarily for the. common good, is to be recompensed by the common contribution of the property benefited ¡thereby.

But the. same question has cohie before other American Courts; and has there, with the full authority of the New Y ork decision before them, received a directly opposite adjudication. Our late brother" Mr. Justice Washington, than whom few judges, had a clearer judgment, ór more patient spirit of inquiry, had the very point before "him in Caze vs. Reilly, 3 Wash. Cir. C. Rep. 298; and after the fullest argument,, and the most "extensive research into, foreign jurisprudence, he pronounced an opinion that there was nb difference between the case of a partial and that of a total loss of the ship, by a voluntary stranding, and that both constituted equally a case of general average, The Supreme vCourt of Pennsylvania had a sholrt time before, in Sims vs. Gurney, 4 Bin. Rep. 513; adopted the same doctrine; and again in Gray vs. Waln; 2 Serg. and Rawle, 229, úpona ré-argument of the whole matter, with all the subsequent lights which could be brought before it, adhered to that opinion: and this has ever since béen the "established law of that Court. Wé have examined the reasoning in these opinions, and Are. bound to say that it has our unqualified assent: and We follow without hesitation the doctrine, as well founded in authority and supported by principle, that a voluntary stranding of the ship, followed by a total loss of the. ship, but with a saving of the cargo, constitute when designed for the common safety a clear case of general average.

Having disposed-of the main question, it now remains to say a few words as to sar^e minor points suggested at the argument. In the first place, as to the objection,.that here the stranding,does not appec” to nave been made after a consultation with the officers and crew, and with their advice. . There is no weight in this objection. A. consultation with'the officers may be highly proper in cases which admit of delay and deliberation, to repel the imputation of fashnéss and unnecessary stranding by the master. But if the propriety and necessity of the act are otherwise sufficiently made out, there is ah end of the substance, of the objection. Indeed, in many if not most of the acts done on these melancholy occasions, there is little time for deliberation or consultation. What is to he done must often, in order to he successful, be done promptly and instantly by the master, upon his own judgment and responsibility. ' The peril Usually calls for action;? and skill, and intrepid personal decision, without discouraging others by timid doubts or hesitating movements. The very point was decided in Sims vs. Gurney, 4 Bin. Rep. 513, upon ground entirely satisfactory.' And it has been well remarked by more than one maritime jurist, that too scrupulous an adherence to- forms on such occasions, has justly a tendency to excite suspicions of fraud. Targa has stated, that in all his experience of sixty years, he never knew of but five cases of regular jettisons, all of which were .suspected of fraud, because the forms had. been too well observed. Abbott on Shipp, pt. 3, ch. 8, sec. 3. 1 Emerig. Assur. ch. 12, sec. 40, p. 605.

The only other remaining point is, whether freight ought to have been brought into the account, either as a part of the loss, or of the Contributory value. The Auditor’s Report which was adopted by the Court, allowed the freight as a part of the loss, and also of the contributory value. It is perfectly clear that if a part of the loss, the freight ought also, to contribute. And it seems'to us, that as by the loss of the ship, the fréight was totally lost for the voyage, it was properly included in the loss, and as a sacrifice by the ship owner for the common benefit. The goods, if reshipped in another vessel must be presumed to be so for a new and correspondent freight to he borne by the ship owner- or .the shipper, according as the one or the other should peek te perform the entire voyage for his own benefit. The ship'owner could only earn the original freight by a transshipment; and if he abandoned that intent, the shipper must enter into a new contract and enterprise with others. In'the case of Caze vs. Reilly, 3 Wash. C. C. Rep. 298, although the objection as to freight was saved, if was abandoned at the argu-. ment.' In the .case, of Gray vs. Waln, 2 Serg. and Rawle, 229, the freight lost was expressly allowed in the general -average. No other objections have been taken to fhe Auditor’s Report, or his adjustment thereof; and therefore upon the other particulars of that adjustment we give no opinion.

7 Upon the whole our .opinion is that the- judgment of the Circuit Court ought to he affirmed, with costs.

This cause came,on to he 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 co.unty of Alexandria, and was argued by counsel. On consideration whereof, it-is ordered and adjudged by this Court, that ¿he judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs and damages at the rate of six per centum per annum.


author: Mr. Justice McKinley

text:
    Richard C. L. Moncure, and Walter P. Conway, Executors of Mary James, Plaintiffs in error, vs. Ann R. Dermott, Defendant in error.
    An action of covenant was instituted by the executors of M. J. upon an obligation executed ■ by A. R. D., under seal, to M. J., by which she agreed to pay- a certain note or bond, loaned by M. J; to A. R^ D., which had. been sold by A. R. D. at a usurious discount and on a usurious contract. -The bond or note of M. J. had been given to enable A. R, ■ D. to raise money to pay' a debt due by her, and for which the note of ,M. J. had been previously- loaned to her. It was denied by the executors of M. J. that she had any knowledge of the usurious dealing in which the bond or note of M. J. was sold. The executors of M. J. were obliged to pay a large portion of the note or bond, and (he action . was instituted to-recover so much as they had paid. A. R. D. set up the usury between . her and the person to whom she had sold the note or bond, as a defence to the suit of the executors of M. J. It was held that the action on the covenant of A. R. D. could he maintained: and that the usurious dealing between A. R. R and the purchaser of the note or bond of M. J., did not render the covenant of A. R. D„ to pay the bond or note, invalid! The Court said the contract between the defendant and the purchaser of the bond, if embracing no other person than themselves, could affect no contract between other parties, previously made; and whether that contract was usurious depended on the intention of the parties to it. If it was made,bona fide, for the sale and purchase of the bond, although at a discount which would insure to the purchaser twelve per cent, a year for the money advanced, it would- not be usurious. If, on the other hand, the sale .of the bond was a mere cover for avoiding the statutes against usury, and the real intention of the parties was to make a contract for the loan of money, at a higher rate than the legal interest, then the contract was usurious. But to involve M. J. in the usury, and to extend its taint to the covenant of A. R. D., it must be shown by proof, that M. J. executed the bond or note sold, for the purpose' of aiding A. R. D. to borrow money at usurious interest, and not to enable -A. R. D. to raise money by selling it in the market. When the holder of M. J’s. note.-threatened proceedings on it, it was not necessary that the executors of M.' J. should give notice thereof.
    No subsequent confirmation of a usurious contract, nor any new contract stipulating to pay tbe debt; with the usurious interest, will make it valid. ' ■
    It is the settled law of Virginia that the bona fide purchaser of a bond dr note, may take it, at any rate or discount,-ho weyer great, without violating'the statute.
    ERROR to the Circuit Court of the United Stateá for.the. county of Washington; in the District of Columbia.
    The plaintiffs in error, executors of Mary Janees, instituted an action of covenant against the defendant, on the folk-wing instrument-of writing:
    Whereas, Mary James has executed her bond or note; dated the 28th day of November, 1828, payable to me on demand, for the sum of twenty-six hundred and twenty dollars, which said bond or note was merely.loaned to me for the purpose of raising -money.upon, and whereas, 1‘have, since the .execution of the said bond or note as aforesaid; assigned it to Philip Alexander, of Fredericksburg, for value received of him, 1 do therefore, hereby hind myself, my heirs, executors, arid administrators, to pay and discharge the said, bond or note, with all interest that may accrue thereon, when the samé shall become due and payable. ■ ' y

    Given under my hand and seal, this 12th day of August, 182?.
    - Ann R. Dermott. [seal.]

      The. evidence showed that the note of ..Mary James, which had been assigned, to Philip Alexander, was not fully paid by Ann R. Dermott, and that a large portion of the same remained unpaid at the death of Mary James, who had executed á 'deed of trust to secure the payment ,of it; and that her executors, Philip Alexander having ordered the deed of trust to be enforced by the sale of the land and négroes conveyed by the deed, Daid the same out.of the funds of the estate in their hands.
    The defendant alleged usury in the transaction for. the loan of the money *, .and by-an agreement between the counsel for the plaintiff and the defendant, usury was allowed to be given in evidence as if specially pleaded.
    . Oh the trial of the cause, certain bills of exceptions to the ruling of the Court were filed by the counsel for the plaintiff, and the. jury, under the charge of the Court, gave a verdict for the defendant; upon which the Circuit Court gave judgment. The plaintiffs prosecuted this Writ of error.
    The case, and the whole of the. plaintiffs’ bills of exceptions, are fully stated in the opinion of the Court.
    The case was argued by Mr. Moncure and Mr. Key for the plaintiffs in error: raid by Mr. Hoban and Mr. Jones for the defendant.
    Mr. Key, for the plaintiffs,
    contended that admitting Usury to have taken place between Ann R. Dermott and Philip Alexander, in the original loan of the money, this could not affect the transaction between Ann R..Dermott-and Mary James, the testatrix of the plaintiffs •in error. This usury was unknown to Mary James, and the executors have been obliged to pay to Philip Alexander the balance of the debt. To affect.the covenant op which suit is brought, it must be shown to have been a contract for a usurious loan of money, ox a security for such a loan. Laws of Virginia, statutes of 12 Charles 2, ch. 13. 12 Anne, ch. Í6. 13 Eliz. The suit is brought on a contract between Ann R. Dermott; and Mary James. Ibis not a suit to recover money loanéd, nor is the obligation given as a security for a loan..
    Mary James had loaned her note to the defendant, to enable her to raise money on it,- by selling it for her own use. This-had been done long before the execution of the obligation on which this suit is brought. The instrument is manifestly, a covenant to secure Mary James from, liability for' the loaned note. The covenant is to discharge the note when due, and she is to be secured from the payment of the note., 14 Johns. Rep. 1.77. ■ Offley vs. Ward, 1 Lev. 235.
    The covenant is not to Alexander, nor is it given to pay usurious interest. Alexander is not a party to it; and it was never delivered to him, nor made for his benefit. 'Had it been.made and delivered to Alexander, it would have been nudum pactum. The defendant was already fully liable to him on her assignment to him of the note-of Mary James, and there would therefore have been no consideration for it.

      What law avoids such an instrument ? Suppose Mary James, instead of lending her note to the defendant, had loaned the money to pay the usurious debt, and had taken a note for'its repayment; it -is settled that usury in the original loan would be no defence to such a note: nor is it a defence in any case, where a subsequent contract is made with a third party who is a stranger to the usury. ' 1 Mass. Rep. 138. 9 Mass. Rep. 45., Cro. Eliz, 588. 642.' 2 Mad. 279. 4 Johns. Rep. 322. 333. 10 Johns, Rep. 185.195. Story’s Conflict of Laws, 206,207. John vs. Armstrong, 10 Wheat. 258.
    It was said, in the Circuit Court, that the plaintiffs should have given notice off Alexander’s claim upon Mary James’s note, and should have called on Ann R. Dermott to defend against the claim. But the obligation is exactly otherwise. The defendant should have given the executors of Mary James notice not to pay the note, and set up the usury. 8 Wendall, 458, 459. The plaintiffs were not hound to make defence. They had no proof of usury. The defendant stood by and saw the executors pay the debt, and after-wards -set up the. usury between herself and Alexander, against the executors; who had paid her debt, ignorant of any defence that could be made to the. claim, of payment from the estáte of Mary James.
    Mr. Moncure, for the plaintiffs in error, said:
    .. The three'instructions prayed for by the plaintiffs and refused by the Court below, present for the decision of this Court the three foN lowing propositions.
    1st. .That á surety paying á usurious debt without being notified by the principal of the existence of the .usury, and instructed on that ground to resist the payment, is entitled to recover from file principal the money- paid.
    2d. That a surety paying a usurious debt without any knowledge of the usury, or of any other objection to the validity of the debt, and under, the belief that the same is bona fide due, is entitled to recover froth the principal the money paid-:- and
    3d. That the executors of a surety paying a usurious debt without any knowledge of the usury, and after the principal had waived and abandoned all objection to the validity of the debt; and assented that, the same should be considered as valid and legal, are entitled to recover from the principal, the money paid.
    '' The affirmative of these three propositions is ■ maintained by the counsel for the plaintiffs, on the following authorities. Robinson vs. May,.Cro. Eliz. 588.- Dutton vs. Downham, lb. 642. ■ Basset and Prowe’s case, 2 Leon. 166- Comyn .on Usury, 186 and'196. Ford vs. Keith, 1 Mass. 139. Bearce vs. Barstbw, 9 Mass. 45.. Parker vs. Rochester, 4 John. ch. 332. 1 Tuck. Blac. Com, 379. • Merchant vs. Dodgin,-2 M. and Scott, 633. Cuthbert vs. Haley, 8 T. R. 390. Jackson vs. Henry,-10 Johns. 185. Chadboum vs. Watts, 10 Mass. 121. Stbne vs. Ware, 6 Mun. .541. Ellis vs. Waynes, Crol Jac.,32. De Wolf vs. Johnson, 10 Wheat. 367. Crenshaw’s administrator vs. Clarke and others, 5.Leigh, 65. - Spangler vs. Snapp, 5 Leigh, 47& Turner vs. Humé, 4 Esp. 11. ,Scott vs. Lewis, 3 Comí. Rep 133. Green vs.'Kemp, 13 Mass..515.
    The covenant upon which this suit vras brought is in effect a covenant of indemnity ; and the plaintiffs having paid the supposed usurious debt; without any knowledge or suspicion, of the usury, are entitled to recover on the covenant the money paid by them, though they made the payment without suit, and without notice to the defendant. ■ Such would be the case on general principles, but it is especially so here, where the principal had- removed from the state, and where payment by the plaintiffs was-necessary to save the. property of their testatrix from salé'under the deed of trust. Douglass vs. Clarke,-14 Johns, 177. Chase vs. Hinman, 8 Wend. 453. Ken. vs: Mitchell, 3 Chit. 487.-
    The plaintiffs also contend that there is error in the judgment of the Court below, in granting the instruction , prayed for by the defendant.
    1st. The hypothetical case stated in that instruction is riot a case of usury. Usury will not be presumed; and if, upon ’any rational hypothesis the transaction could have been-legal, it- will not be presumed to have been usurious. The statute of usury is highly penal in its character, and should hot be applied without strong and clear proof of the usury. Crenshaw’s' administrator vs. Clarke and others, 5 Leigh, 65. Whitworth vs. Adams, 5 Rand. 404 — 435. .The contraét in this'case, having been made in Virginia, must be governed by the law, and the decision^ of that state. It' has been there decided that the bona fide purchase of a bond made for sale, at a greater discount than legal interest is not usurious. Hausborough vs. Baylor, •3 Mun. 36; also, Taylor vs. Bruce, Gil. 43. Whitworth vs. Ad-» ams, 5 Rand. 333.- There is nothing in the facts stated in the defendant’s instruction inconsistent with a bona fide purchase of the bond from the defendant.. The purchaser may well have supposed that Mary James was' indebted to the defendant in a sum equal to, or exceeding the amount of the bond; and that the defendant was willing to sell so much of the debt as would.raise the sum which she needed, and no moré. Or he may have well supposed , that Mary James, being a maiden aunt of the defendant, and warmly attached to her, had given .her the bond which was offered to him for sale. In either case the transaction- would have been perfectly legal; and knowledge of .it on the part of -the purchaser would not have made the purchase usurious.
    3d. The Court in giving the instruction, weighed the evidence and decided upon the facts which should have been left exclusively to the jury, 5 Rand. 397,407. 6 Leigh, 517. 4 Maul, and Selw, 193. 3 Com. Law Rep. 97. Ib. 109. 5 Ib. 417. Where the facts found in a special verdict, or stated hypothetically in an instruction, show a loan or forbearance of money at more than legal interest, the corrupt agreement is an intendment of law, and need not be expressly found or stated; but where the transaction presents itself in the form of a sale of a bond, or in any other form which may bé used as a shift or device to evade the statute, the ..corrupt intent to evade the statute is a question of fact, which must be left to the jury. The case of Roberts vs. Tremayne, Cro. Jac. 507, is in accordance with this distinction.
    Mr. Hoban and Mr. Jones, for the defendant, contended:
    that as to so much of the plaintiffs’ exceptions to. the decision of the Circuit Court as goes to the refusal of the instructions to the jury, moved on the part of the plaintiffs, all the said instructions were properly-refused, as being erroneous in the general principles'of law assumed in them; or, even if correct in their principles, yet they were propounded with such qualifications and adjuncts,,as were wholly inadmissible, and vitiated the instructions throughotit their entire frame.
    As to the instruction finally granted at the instance of the. defendant, upon the hypothetical, state of facts therein set forth, it is contended, that the facts assumed áre fairly deduced from'evidence'; not only sufficiently pertinent, tq the conclusions, of tact assumed, but going to the clearest proof of those conclusions: that the Circuit Court has, nevertheless, fairly left every fact, and every conclusion of' fact, to the free and unbiassed judgment .of the jury: that such facts, being found true, do amount, in every circumstance both of act and intent, to technical usury; in both the forms stated by the Court: and that the legal conclusion of usury would follow from such facts found in a special verdict: yet the Court has left all the conclusions and presumptions of usury from the facts, equally as the facts themselves, to the judgment and discretion of the jury.
    Mary James was acquainted with the whole transaction for procuring the money from Philip Alexander, and she cannot be, excluded from the influence of the law on the subject of usury, by coming forward as a suitor on the obligation of guaranty, given by the defendant in error. The original note, for the payment of which the money was procured from Alexander, was the note of Mary James. She was the debtor on that note, and originally liable for its payment. It was to relieve her from this liability the money was procured by the, usurious dealing between the defendant, and Alexander — of all the circumstances she. was fully cognizant.
    How is the law. settled with regard, to -principal and surety,when the surety is- collaterally liable for a usurious contract? It is claimed that notice of the nature of the transaction is not necessary. If the contract' was originally usurious, the guarantee is void. Comyn on Usury, 133.
    A new-contract made by' the parties, with a stranger ignorant of the usury, is not affected by it, and is valid. But if the old contract ■is continued, and is usurious, no recovery can be had. But on a new contract it is different. Comyn on .Usury, 196. 1 Mass. 137.
    The obligation of the defendant, on tidtich- this suit is ■ brought, could have been enforced against her in .a Court of Chancery, by Alexander; it was therefore a direct obligation to.sustain a usurious contract.
   Mr. Justice McKinley

delivered the opinion of the .Court:—

This cause is brought before this Court upon a writ of error, to the Circuit Court of Washington county, in the District of Columbia.

The plaintiffs brought suit against the defendant, in the Court below, upon a covenant executed by the defendant as jfollows: “Whereas Mary James has executed her bond or note* dated the 28th day of November, 1828, payable to me on deinand, for the sum of twenty-six hundred and twenty dollars, which said bond or note was merely loaned to me for the purpose of raising money .upon; and whereas 1 have since the execution of said bond or note assigned it to Philip Alexander, of Fredericksburg, for value received Of him; I do therefore hereby bind myself, my heirs, executors and administrators, to pay and discharge the said bond or note, with all interest that may accrue thereon, whenMhé same shall be-, come due and payable. Given under my háhd and , seal, this 12th day of August, 182.9. Ann R. Dermott.” [seal.]

To. this suit the defendant pleaded non assutnpsit, with leave to give usury in evidence,

. At- the trial it was proved that.the testatrix became principal in a bond .to Thomas Poultney and Son, of .Baltimore, bearing date the 31st day of March, 1826, for the sum of three thousand six hundred and thirty-three dollars* it being for. the payment of a debt, due by the defendant* who also signed thé bond, payable on the 23d day of November, 1828; and that the testatrix executed a deed'of trust, upon her land and negroes, to secure and save harmless Wijliam C. Beale, John Moncure, and Thomas Ledden, who had become, sureties to said bond, at the request of the. testatrix: and that the reason why she gave her own bond. for the debt ,of the defendant w.as*bécause the defendant could not give satisfactory security to the sureties ;■ that in the spring of the year 1828 the defendant applied to John Moncure, to aid her in borrowing money to pay off the. bond to Poultney and. Son, who- informed her that he did not believe that money could be - borrowed in Fredericksburg at legal interest; and advised her to procure the -note of the testatrix, who was her aunt, and sell it in the market.- Several conversations took place between that time and the next November, between Moncure, acting as agent of the defendant, and Philip Alexander, of Freder-icksburg, in relation to the sale of a' bond, or note of the testatrix; when, finally, Alexander agreed that he would buy the bond, pro-' vided he could make at the rate of twelve per centlim a year upon his money, and obtain security for its final payment.by a deed of trust upon the land pnd negroes of the testatrix. While these, négotiatiohs were pending, the testatrix addressed a letter to Alexander, dated the 25th of November, 1828, in which she stated that her niece, the defendant, had. informed her that she intended selling and assigning to him the bond of the testatrix for $2880, payable on: demand, and proposing, if he would give her time for the payment of the money, she would give a deed of trust upon her land and negroes, to secure its payment. These negotiations were protracted until the money to Poultney and Son was so nearly due that there was not time sufficient to complete the' arrangements in relation to the bond and security; and Alexander agreed to. advance the sum. required, $2340, upon an undertaking, on the part of Moncure and Beale, that they would refund the money to him if the defendant failed to assign the bond, and the testatrix to execute the, deed. On the 1st of December,'1828, the defendant assigned to Alexander the bond of the testatrix for twenty-six hundred and twenty dollars; and, on the 10th day of the same month, the testatrix executed the deed of trust, in which it was stipulated that the bond was to be paid at the end of two years, with legal interest.

During all this time the-testatrix and the defendant lived togethér ■ in Virginia, some distance from Fredericksburg. The defendant afterwards removed to Washington, where she resided when this suit was commenced. From the month of April, 1831,to-the month of May, 1832, she made several payments to Alexander .on !the bond; and, by letters to the testatrix, expressed her anxious desire ■ to pay it off, that the testatrix and her property might be released from further responsibility on her- account. After the death of the testatrix Alexander put the bond into the hands of the trustee, with directions to sell the trust property, unless, within a reasonable time, the plaintiffs paid the balance due.

The plaintiffs prayed the Court to instruct the jury, .that it is not' competent for the defendant in this action to deny by plea or otherwise, the validity of the note of 28th November, 1828, recite^ in the. covenant on which this suit is brought, and that she is estopped from setting up in this • action any alleged usury, as affecting the validity of said note; that the plaintiffs are entitled to recover in this action the sums which the jury are satisfied from the evidence were paid by the plaintiffs to Philip Alexander, on the bond dated 28th November, 1828; unless the defendant proves to the jury, that before such payments the plaintiffs were notified that the bond of 28th-November, 1828, was tainted with usury, and instructed to dispute the same; which the Court refused. And then further prayed the Court to instruct the jury as follows: that if the jury should believe from the evidence, that the note of Mary James to the defendant, assigned by Alexander, dated 28th November, 1828, was made on an usurious agreement entered into between said defendant and said Alexander,but that the plaintiffs had no knowledge of such usury at the time they were called upon to pay the balance due on the note, nor at any time before, and paid the same under the belief that the same was bona fide due, and without any knowledge that there was any objection to the validity of said note; and without any notification or communication from the defendant,-then the plaintiffs are erititléd to recoverunless the jury should be satisfied from the evidence, that the said Mary Jamés knew of the said usurious agreement, under which the said note was given and assigned , as aforesaid: which the Court also refused. And further prayed the Court as follows: that if the jury should believe from the evidence, that the note of Mary James, the defendant, assigned by her 'to Alexander, dated 28th November, 1828, was made on an usurious agreement, entered into between said defendant and' said Alexander, but that the plaintiffs had no knowledge of such usury, at the time they were called upon to pay the balance due on - the note, nor at any time before, and paid the same under the belief that the same was bona fide due, and without any knowledge that there was any objection,to the validity .of said note, and without any notification or communication from the defendant; and if the jury believe from the evidence, the defendant.waived and abandoned all objection to -the validity of said note, and assented that the same should be considered as a valid- and legal obligation, then the plaintiffs are entitled to recover. And it is competent for the jury to infer such waiver and assent,, if they shall believe from the evidence that the defendant, after obtaining said money, made payments of interest, as the same became due, and expressed her desire and intention to pay the said note, and her anxiety to save her aunt’s property from sale •under the said deed of trust; which the Court also refused. To all which refusals by the Court to give- the several instructions as' prayed,.-the plaintiffs except. '

And the. plaintiff’s counsel then further prayed the Court as follows ; that if the jury believe from the evidence, that there was no loan of money from Alexander to defendant secured by the bond of the 28th November, 1.828, but that the said bond was bona fide purchased by said Alexander of defendant, at a discount exceeding -the, legal, raje of interest, the said Alexander not knowing when he purchased said bond, that the same was .loaned by Mary James to the defendant solely to raise money on, the transaction is not ’ usurious, and. the plaintiffs' are entitled to recover in this action the moneys paid by them to Alexander on said bond; and.further, if the jury should believe that Philip Alexander, when he paid the money and took the note as aforesaid, intended to buy the said note for the amount given on it, not knowing that the note was made by Miss James to defendant, in order to raise money on it, and did not mean, by disguising the advance under the form of a purchase, to évade the statute of usury, then such purchase was lawful; which prayers the Court gave as prayed,- and to which the defendant excepts. '

And the-defendant’s counsel thereupon prayed the Court as follows : if the jury find and believe, from the evidence aforesaid, that for several months before the execution and assignment of the bond ór note mentioned and described in the covenant on which the suit is brought, there were such negotiations and propositions, pending between said John Moncure, [acting in behalf of defendant,) and said Philip Alexander, as are - mentioned and set' forth in said affidavits of Moncure and Alexander, arid in the papers arid exhibits therein referred to, that the trae and genuine nature and object of such negotiations arid propositions, and of the successive arrangements and understandings resulting froni them, as really contemplated by both parties, were that said Alexander should make an advance of money to defendant, upon a future bond or note of said Mary James, payable to defendant, and by her to be assigned to said Alexander, under the name and form of a sale of such bond or note at a discount* above legal rate of interest; that such discount, from the amount of Such bond or note should be so adjusted, as that the difference between the full amount of the bond or note* and the sum advanced On .it, should be equivalent to an interest at the rate of twelve per cent, per annum on the sum actually advanced for the time of forbearance, to be given on such bond or note; that all .the said preliminary negotiations, propositions, and arrangements, were, just before the execution and assignment of the bond or note referred to in the covenant set forth in the plaintiffs’ declaration, (such bond of note, being the same note-under seal, or- bill obligatory, above given in evidence by plaintiffs, with the said covenant, and annexed to ■the said original, affidavit' of said J. Moncure, as aforesaid,) terminated in- an arrangement so modifying 'the before pending, propositions' and arrangements- aforesaid, as that said Alexander should immediately advance the defendant 2340 dollars, and that defendant should assign to him a nóte or bond thereafter, to be drawn and . executed by said Mary James, for sueh amount as should make the difference between the sum. so advanced, and the sum to be ultimately received by him for the principal and interest of such bond or note, equivalent'to an interest of twelve per pent, per .annum on the sum so advanced, according to the. principle on which said Alexander, in his letter, a copy of whichjs on the record, to said Mon- ' cure, insisted that the profits of the transaction should be calculated and secured, and that the payment of- such bond or noje shonld.be collaterally secured by a deed'in trust of the-land and slaves of said-Mary James. That the said Alexander, in pursuance and execution of siich arrangement and understanding, did advance the said 2.340 dollars to defendant, or for her use; that the said Mary James,in the pursuance -and execution of the same arrangement and understanding on her part, did afterwards, on the 28th .November, 1828, execute and deliver -the said .note under seal, or bill obligatory of - that date, and afterwards, on the 10th December, 1828, duly execute and deliver'to said J. Moncure, and P. Alexander, the said deed in' trust bearing that date, as above given in evidence by defendants, and annexed to the said cross-examination of said 'Moncure, a copy of which is on the .record, and that the defendant, in the pursuance and execution of the said arrangement and understanding, did assign the said bill obligatory to said Alexander, immediately on the execution ofi’the samé by said Mary James'; that the amount of sa.id securities) and the time with which said Mary James was indulged by. said deed, in trust for payment, were knowingly and. designedly' calculated, and adjusted by and between said Alexander and said Moncure, in behalf of defendant, so as to produce in the end ■ a ■yearly interest of twelve per cent, on the sum advanced during such time of indulgence ; and that the principal and interest, secured by the said instruments, were intended and designed by both parties to amount, and did in fact amount, to greatly more than the sum so advanced-with'legal interest, for such time of indulgence as aforesaid; and did in fact substantially secure to said Alexander,, a yearly interest of twelve per cent, on the sum so advanced by. him. ' Then the jury, if' they find such facts as aforesaid' satisfactorily proved, and fairly deducible from the evidence aforesaid; may properly infer, from Such facts, and fairly presume that the transaction was , substantially a loan within the meaning of the statute against usury; notwithstanding it may appear to have been made in the' form and name of a.sale of the said Mary James’s'bond ór note; and then the jury may, from the same facts and circumstances, if proved and deduced as aforesaid; also properly infer and well' presume, that the sum of money deducted and retained by said Alexder, from the nominal' amount of said bond or note, was substantially usurious interest under another, name, for the forbearance; of the money so lent or advanced;' which the Court gave as prayed, to which the plaintiffs except; and pray the Court to sign and seal this bill of exceptions, as well as the granting of- the said defendant’s prayer, as .to’the refusal to grant the prayer aforesaid of said plaintiffs, which is accordingly done this -24th day of May, 1838. And the said defendant, by her said-counsel, having excepted, as aforesaid, to the said instructions given by the Court at the request of the plaintiff as aforesaid, also prays the Court to sign and sfeal this her bill of exception^ to the said instruction, so given at the request or prayer of the plaintiff, which is also done this 24th May,' 1838.

•Upon the judgment 6f the .Circuit Court on the several prayers for instruction to the jury, by "the plaintiffs and the defendant; these questions arise: 1. Does proof of. usury, in the contract between the defendant and Alexander, per se, make void the bond assigned to Alexander, and the covenant, also, upon which the suit-in the Court below was founded ? 2. If the testatrix had no knowledge of the-usurious agreement between the defendant and Alexander, and the plaintiffs were'.also ignorant, and knew nothing of such usurious agreement, when they were cálíed on to pay the balance due on the bond, and they paid it under the belief that it was a bona fide debt, and without' any notice to the contrary from the defendant, were they entitled to recover in the Court below ?

The contract between the defendant and Alexander .for the purchase of the bond, if embracing no other -party than themselves, could affect no contract between other parties-previously made; and whether that contract was usurious depended, on the intention of the parties to it. If it was made bona fido,fox the sale- and purchase of the bond, although at a. discount which would insure to Alexander twelve, per cent, a year, for' the money advanced, it.would not be usurious. ' If, on the other hand, the sale of the-bond was a mere cover for the purpose .of evading the statute against usury, and the real intention bf'the parties was to make a contract for the loan of money at a higher rate of interest than six' per cent., then the contract was usurious. But to involve the testatrix in the Usury, and to extend its taint to the bond, as well' as to the assignment, it must have been shown, by proof that she executed the bond for the purpose of aiding the defendant to borrow money at usurious .interest, and not to enable her to raise money by selling it in -the market.

. As the' third prayer of the plaintiffs is materially different from the first-and-second, we will examine it first. If the first member of it had been presented .alone,- ijt would, in our opinion, have been proper for the Court below to have granted it: but as it was inseparably connected with-the latter member, it presented a very different question. The objectionable part is in these words: “And if the jury believe, from the evidence, the defendant waived and abandoned all objection to the validity. of said note;. and assented, that the samé should be considered as a valid and legal obligation, then the plaintiffs are entitled to recover; and it is competent for the jury to infer such waiver and assent, if they shall believe from the evidence, that the defendant, after obtaining said mol ey, made payments of. interest, as the same became due, and expressed her deshe and intention to pay the said- note, and her anxiety to save her' aunt’s property from sale under the said deed of trust.”

This reasoning proceeds on the assumption that a bare promise to pay an usurious debt, or a' partial payment of it, would, take the contract out of the statute -against usury. -No subsequent confirmation, nor new contract stipulating to pay the debt, with the usurious interest, will make it valid. Notwithstanding, therefore, the defendant may have declared her determination to pay the debt, and did actually pay a part of it, she had, nevertheless, a perfect right, afterwards, to avail herself of the plea of usury; therefore, the Court below did right in refusing the instruction.

..The first and second instructions prayed for by the plaintiffs, and that prayed for by the defendant, may well be considered together. Jointly they embrace the whole case, and present the two questions ■before stated. The facts stated in the prayer of the defendant, if found by ihe jury,taken alone and unconnected with the facts stated iii the prayers of the plaintiffs, Would oppose no legal bar to the plaintiffs’ aetion; unless, indeed, an usurious contract between the defendant and Alexander, could impart its usurious taint to the bond assigned, and the covenant .sued on,; The Court below having decided, by refusing the prayers of the plaintiffs, that knowledge, on the part of the testatrix, of the usurious contract, was not necessary to subject the two contracts between her and the defendant to the taint of usury.

They, therefore, put the. case upon the éxpress ground, that proof of usury in the contract between the defendant and Alexander, did, per se,make void the bond assigned, and the-covenant sued on. If the testatrix had no knowledge of the existence of usury in the contract between the defendant and Alexander, the bond which she gave to the defendant, although without valuable considération, was not usurious. There must be a loan, and the taking of more than legal interest, or the forbearance of payment of a pre-existing debt, upon a contract for; illegal interest, to constitute usury. Barclay vs. Walmsley, 4 East, 57. The fact of knowledge, in the.plaintiff’s testatrix, is very material; first, to show whether the bond ' which-she executed to the defendant was usurious; and, secondly, to show whether thC-cootract between the defendant and Alexander was usurious. If the bond was free from usury in its inception, ho subsequent transaction between other parties could invalidate it.. Nichols vs. Fearson and others, 7 Peters’ Rep. 106. Although this bond may have been executed without valuable consideration,- in the hands of a bona fide purchaser, without notice of that;fact, it would be good against the obligor. It is the settled law in Vir- - ginia, that the bona fide purchaser of a bond or note may take it at any rate of discount, however great, without violating the statute against usury. Hansborough vs. Baylor, 2 Mun. Rep. 36. 5 Rand. 33. If the testatrix was neither a party nor. privy to the contract, ' between the defendant and Alexander, it was a very material fact ' for-the jury to consider when inquiring whether there was usury in the agreement between the defendant and Alexander : because, if the testatrix had no knowledge of the usurious contract between them, it was. impossible that she could have been party or privy to it. Suppose the jury had, found, specially, that the testatrix was neither party nor privy to the contract between the defendant and Alexander, and that Alexander had no knowledge of the fact -that'the bond which he.purchased from the defendant-had been executed by the testatrix without valuable consideration; the contract of assignment would háve been entirely free from usury, and the testatrix liable upon the bond. -But that liability has never been questioned. Viewing the case in this aspect, the defendant -would have had no pretext for pleading usut-y against the plaintiffs in this cause,

But upon what ground is it that usury is set up by the defendant against her covenant of indemnity ? If that covenant had been given to Alexander, and the first contract was usurious, he would have been in no'better condition; because the consideration being the same, the taint of usury would have attached to it ¿t once. . But the case is very different between the defendant and the testatrix. The,latter had lent her note to the defendant', and conveyed her land and negroes to a trustee to secura the payment of it. She was no party to the usury; and she had given a full and valuable consideration to the'¡defendant for the covenant of indemnity. The Circuit Court, by -refusing to .permit the jury to inquire into the fact of knowledge on the part of the testatrix, in relation to the usury, thereby admitted her ignorance of that fact. Therefore, as between these parties, the whole transaction was legal, and the covenant free frbm all taint of usury. Cuthbert and another vs. Haley, 8 Term Rep. 390.

Upon the second question it will only be necessary to examine the point, whether the defendant was bound to give notice to the plaintiffs of her intention to plead the statute against usury.in bar of the debt due to Alexander; the other points having been fully examined on the first question stated. It is obvious, from the evidence, in the cause, that the defendant commenced, the.negotiation with Alexander for. the sale of the bond of the testatrix, andieonducted it to its final conclusion; and that she was bound to know every fact and circumstance connected with( the whole case. In Ford vs. Keith, 1 Mass. Rep. 138, the case w“as of a surety who had paid the debt* knowing at the time that it-was founded on an usurious contract. He brought suit against the. principal to recover the amount paid, to which he pleaded the usury between him and the payer of the note. Judge Strong, who delivéred the opinion of the Court, said: “The defendant says, it is true the money was borrowed for me; I received it, and had the benefit of it; I.requested you to become my surety and sign thé note, and" you have paid the contents;' yet as I had a'legal fight to avoid the note, you shall not recover of me. Will the law permit the defendant to get rid of the present action on such grounds ? ' He presuméd it would not. No man is bound to take advantage of a penal law, and avoid a contract which in equity he ought to perform; and nothing could excuse the defendant, but his giving express notice to the. plaintiff that he, the defendant, did not mean, to pay the note.”

The present is a much stronger case for the plaintiffs than the one just quoted. The defendant, as before stated; knew all the facts of. the case; she had paid, at different times, parts of the debt; nearly fivte years had elapsed from the date of the contract till its final payment; there was no evidence that the executors had any knowledge of illegality'in the contract; the suit was not brought on the contract said, to .be tainted with usury, but upon the covenant of the defendant; stipulating to indemnify the testatrix against the payment of the debt,, which theplaintiffs had been compelled to pay under these circumstances. She sets up the alleged usury, between her and Alexander, to defeat her'bond of indemnity ; arid insists that she is entitled to the benefit of it, unless the plaintiffs prove that they gave her notice before they paid the,debt.' That she was-bound to give notice of her .intended defence has already been shown; and to remove all doubt on these points,we refer to 8 Wend. Rep. 452, to show that she was not entitled to notice.

To permit the defendant to avail herself of the plea of usury, under the. circumstances of this case, would, be to encourage the grossest, fraud and injustice. The plaintiffs paid the balance of the debt to Alexander, in the regular discharge of their duty as executors, without knowledge or notice of the alleged usury. We therefor'e think that the Circuit Court erred iñ'refusing the first and second instructions prayed’ for by the plaintiffs, and in granting the instructions prayed for by the defendant. Wherefore the judgment of the Circuit Court is reversed, and the cause remanded for further, proceedings to be had therein, not inconsistent with this opinion.

. This cause came on'to be heard on the transcript of the record iiom the Circuit Cotirt 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 ordered and adjudged by this Court, that the judgment of the said Circuit Court, in this cause be and the same is hereby reversed with costs; and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo, and for further proceedings to be had therein in conformity to the opinion of this Court.