author: Mr. Justice GRIER

text:
    James Dundas, Mordecai D. Lewis, Samuel W. Jones, Robert L. Pittfield, and Robert Howell, Appellants, v. Anne Hitchcock.
    Where a mortgage was executed by a husband, his own name only being used in the body of the instrument, but it was signed by his wife also, who relinquished her right of dower, and made her acknowledgment in an after part of the instrument; and there is sufficient evidence, from an inspection of the whole instrument, to believe that the intention of the parties was to consider the whole paper as forming one assurance, the wife will be barred of her dower, as far ak the mortgage is concerned.
    Where a statute requires a private examination of the wife, to ascertain that she acts freely, and not by compulsion of her husband, but prescribes no precise form of words to be used in the certificate, it is sufficient if the words of .the acknowledgment have the same meaning, and are in substance the ¡¡fame, with those used in the statute. ,
    Where a widow was allowed one year, after probate of her hjisl and’s will, to elect whether to take under it or not, and by the will she was sole devisee for herself and children, and before the expiration of the year she released to the mortgagee all her estate, right, and claim to the mortgaged premises, styling herself widow and sole devisee, she cannot afterwards avail herself of her right of. election and set up a claim to dower, outside of the will; she is estopped by her deed:
    This was an appeal from the Circuit Court of the United States for the Southern District of Alabama. • There were two cases between the same parties, depending upon the same prin-. ciples, and only differing as to the property mortgaged. The notice of one will suffice for both.
    The plaintiffs in error were the trustees of the Bank of the United States, being the assignees of Cowperthwaite, Dunlap, and Cope, the oilginal trustees.
    In July, 1838, Henry Hitchcock, of Mobile, Alabama, came to a settlement of many transactions of loans and discounts with the Bank of the U nited States, and was found indebted to the amount of six hundred and twenty thousand, five hundred and thirty dollars, and ninety-six cents. ($620,530.96) He gave his bond for this sum, payable in four instalments, and to secure, it executed a mortgage, which gave rise to one of the questions in the present suit,' the point being whether or not his wife so far joined in,, the mortgage as to relinquish her right of dower.” Her dower in the equity of redemption was not called' in question, but was worth nothing.
    The mortgage commenced in this way:
    “ Know all men by these presents that I, Henry Hitchcock, of the city and county of Mobile, in the State of Alabama,” &c., &c., and concluded in this way: “ Provided, always, and these presents are upon this express condition, that if the said Henry Hitchcock shall well and truly pay to the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, the survivors or survivor of them, the sum of six hundred and twenty thousand five hundred and thirty dollars and ninety-six cents, with eight per cent, interest per annum, from the first day of March, A. D. one thousand eight hundred and thirty-eight, thereon accruing, payable semi-annually, according to the condition of a certain bond ’by the said Henry Hitchcock given, payable to.the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, bearing even date with these presents, then these presents shall cease,determine, and be void; otherwise to be and remain in full force and virtue. Given under my hand and seal, this fourteenth day of July, in the year of our Lord one thousand eight hundred and thirty-eight.
    H. Hitchcock.
    Anne Hitchcock.
    Signed, sealed, and delivered in the presence of—
    And I, Anne Hitchcock, wife of the said Henry Hitchcock, for and in consideration of the sum of one dollar, to me in hand paid by the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, have relinquished, and hereby do relinquish by these presents, all my right and title of dower in and to the above described premises, to the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, the survivors or survivor of them, and to the heirs, executors, and assigns of such survivor, forever.
    Wit less my hand and seal, this fourteenth day of July, one thousand eight hundred and thirty-eight.
    Anne Hitchcock, [seal.]
    Attest: Charles A. Marston.
    The State of Alabama,

      Mobile County.

    Personally appeared before me, Charles A. Marston, notary-public in and for said county, the above-named H. Hitchcock, who acknowledged that he signed, sealed, and delivered the foregoing indenture of mortgage to Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, on the day and year therein mentioned. And also appeared personally before me, Charles A. Marston, Anne Hitchcock, wife of the said H. Hitchcock, who being examined privately and apart from her said husband, acknowledged that she signed, sealed, and • delivered the said indenture of mortgage freely, and of her own accord, and without any fear, threats, or compulsion of her said husband.
    Given under my hand and, seal notarial, this fourteenth day of July, A. D. 1838.
    Charles A. Marston.
    The first instalment of debt and interest became due in March, 1839, in the life of Hitchcock. He made default in the payment of the first instalment. The Bank of the United States then filed their bill to foreclose the mortgage in the Court of Chancery at Mobile. Hitchcock resisted the payment of the debt upon the plea of usury. There had been no decision of this suit at the date of Hitchcock’s death, which took place on 11th August, 1839.
    In August, 1839, Hitchcock made his will, legally authenticated, and devised his property in trust to his wife, for the use of his wife and children, after the payment of certain legaciés.
    This will was admitted to probate in the Orphans’ Court of Mobile county, in August, 1839, but neither letters testamentary nor of administration were issued until February, 1840.
    After .the death of Hitchcock, his widow, Anne, took possession of the estate, and executed many leases, but never qualified as executrix. James Erwin, her brother, purchased at sheriff’s sale, all the right and title of Hitchcock, to a part of the property, for fifty dollars, and procured an attornment from the tenants. This gave rise to a suit which is reported in 4 How. 58.
    In February, 1840, sundry negotiations took place between the parties, which eventuated in the execution, of the following deeds and releases; viz. :

      Í. On the 8th of February, 1840, Anne Hitchcock executed a deed to Cowperthwaite, Dunlap, and Cope. It commenced thus: “ This indenture, made this eighth day of February, A. D.' 1840, by and between Anne Hitchcock, widow and sole devisee of Henry Hitchcock, late of Mobile county, acting under and' by virtue of the last will and testament, and the several codicils théreto annexed, of the said Henry Hitchcock, duly proved and of record in the Orphans’ Court of Mobile, county, of the first part, and Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, of the city of Philadelphia, and State of Pennsylvania, of the second part, witnesseth : That the party of the first part, for and in consideration of the sum of seven hundred and fifty-three thousand four hundred and fifty-two dollars and twenty-three hundredths dollars, to her well and. truly in hand paid, at and before the ensealing and delivery of these presents, by the said parties of the second part, the receipt whereof she doth hereby acknowledge, hath remised, released, conveyed, and forever quitclaimed, and doth by these presents remise, release, convey, and forever quitclaim, unto the said parties of the. second part, the survivors and survivor of them, and the heirs, executors, administrators, and assigns of such survivor, all the estate, right, title, interest, use, trust,.property, claim and demand whatsoever, at law as well as in equity, in possession as well as in expectancy, of, in, to, pr out of all and singular the following described lands and premises;. that is to say, ” &c., &e. Then followed - a conveyance of the mortgaged property, leases, and all,

      % On the 10th'of February, James.Erwin executed a deed to Cowperthwaite, Dunlap, and Cope for the property which he had bought at sheriff’s sale. The consideration was one hundred and fifty thousand' dollars, which, it was alleged, was to be appropriated to the payment of other debts of Hitchcock, which were not secured by mortgage.
    3. A release by the bank to Anne Hitchcock. This recited the bond, the mortgage, the delivery to the bank, by Anne, of the lands and houses devised to her, and then agreed that the bank should look only to the mortgaged property for the payment of its debt, and should surrender the notes and bills given by Hitchcock tó the bank.
    After the execution of these deeds, but within a year from the death of her husband; viz., on the 15th August, 1840, Anne refused to qualify as executrix, and repudiated the provisions made for her in the will, and claimed dower in lieu thereof. These papers were filed and recorded in the Orphans’ Court of Mobile county; whereupon Isaac H. Erwin was appointed administrator with the will annexed.
    In 1840, the bank filed a bill in the Court of Chancery at Mobile, against Isaac H. Eiwin, Anne, and her children, which court decided that the property was properly held by the bank under the deeds, and that the defendants should be foreclosed unless the debt and costs were paid by a certain day. This decree was carried by appeal to the Supreme Court of Alabama, and there affirmed at January term, 1845.
    On the 23d of April, 1847, Anne Hitchcock filed a bill in the Circuit Court of the United States for the Southern District of Alabama, against the bank, claiming dower in the lands included in the mortgage. The bank answered; evidence was taken, and the judge of the Circuit Court decided that the complainant was entitled to dower, and decreed that it should be set off to her. From this decree the bank appealed to this court.
    It was argued by Mr. Bradley and Mr. Campbell, for the appellants, and by Mr. Hopkins and Mr. Badger, for the appellee.
    The following is an outline of the arguments of the respective counsel.-
    The counsel for the appellants contended:
    1. That the deed of Mrs. Hitchcock, written underneath the deed of her husband, dated of the same date, and which, she says in her answer to the trustees of the Bank of the United States in the chancery suit, was designed as a joining in the mortgage of her husband, was legal, valid, and operative, and that this has been already determined judicially.
    The complaint of Mrs. Hitchcock is, that the notary, in describing the paper acknowledged by her, says that it was the said “ Indenture of Mortgage,” and that by no construction can these words be held to describe the deed of relinquishment of dower. It is said she did really sign and seal the mortgage with her husband, but she employed no terms of grant in its body; and that her acknowledgment must be confined to the execution of that paper, and to have no relation to the deed immediately following, and signed the same day, and which was- present, and held by the notary who took the acknowledgment.
    We contend that the mortgage to the bank consisted of the estate of Henry Hitchcock, unembarrassed by the claim for dower, and that there was no misnomer in the designation of the whole instrument, which exhibited the grant of that estate, and the renunciation of the dower claim, “ as an indenture of mortgage.”
    We contend, further, that the acknowledgment certified must be taken to have, been of the whole transaction to which Mrs. Hitchcock was a party, and which is contained in the instrument executed by her. Such was the intention of all concerned with it.
    Mrs. Hitchcock, in her relinquishment,-refers to the deed of her husband four times. She describes herself as the wife of the said Henry Hitchcock; she refers twice to the grantees as the said Cowperthwaite, &c.; she refers to the premises as “ the above-described premises.” The instrument is of the same date.
    The principle of construction applicable,'then, to this instrument is that, found in Lord Cromwell’s case, Coke’s R. book 2, 75. “ The law will not adjudge by parcels in subversion of the intent and agreement of the parties; but when all acts are done in performance of the original contract and agreement of the parties, the law will judge upon the whole as executed at one and the same time.”
    Here the execution of the deed and the acknowledgment bear the same date, are on the same paper, and are obviously pursuant to the same contract. “ The end of the law is to settle, repose, and make peace between man and man concerning their possessions, and it would be too dangerous. a thing to make any construction against the allowance in common assurances; for thereupon would rise infinite contentions, quarrels and suits, which would be inconvenient.” Selwyn v. Selwyn, 2 Burr. 1131; Vaughan v. Atkins, 5 Burr. 2764, 2787. There the court says, “ that the several parts and ceremonies necessary to complete a conveyance shall be taken together as one act, and operate from the substantive part of it, by relation.”
    • It is riot denied that the manifest intention was that the dower of Mrs. Hitchcock should not encumber the estate of the mortgagees. It was designed that the mortgage should cover that estate. When her signature appears on the mortgage, and her acknowledgment is, that she executed the “ indenture of mortgage,” what is the interpretation to be put upon her words ? Must we not hold that her acknowledgment applies to the papers. .executed by her, and under which her acknowledgment is certified ? Lawrence v. Blatchford, 2 Ver. 457; Van Hagen v. Van Rensselaer, 18 Johns. 420, 16 Viner’s Abr. 138, Chitty on Contracts, 90.
    The same principle of construction has been fully recognized in Alabama. Bradford v. Dawson, 2 Ala. R. 203; Hines v. Bank of Alabama, 2 Ala. 452, 482; Sewall v. Henry, 9 Ala. 24.
    For applications of the same principle, see 11 Verm. 221,15 Verm. 472.
    The court would then look to the whole instrument to find what was understood by the acknowledgment made by Mrs. Hitchcock with a view of sustaining the conveyance.
    ,2. We contend that if the question were open, upon the au». thorities and arguments we have adduced, a similar decision would be proper. " ■
    3. We contend that, on the 8th February, 1840, in so far as we are concerned, Mrs. Hitchcock accepted the provisions of her-husband’s will, and was invested with every right it gave, and divested of every right antagonistic or adverse. ' That this'elec tion appears by the deed to the trastees, and was for.a valuable consideration. That she conveyed by that deed every right and estate in the land she had or might derive from the. most solernfe •and authentic acceptance of the terms of the will, and we say that this conclusion legally results from the decree of the Court of Chancery. . . "
    4. We contend that, whether the renunciation of Mrs. Hitchcock had been prior or subsequent to the execution of her deed of the 8th of February, the effect of her deed is the same. That" the deed operates upon the estates, rights, and claims she. then had of every name and nature. That the deed bars an inchoate or unassigned dower estate, as well as an equity of redemption.
    •It is perfect and all comprehensive, not only as a release and quitclaim but as a cqnveyance. It purports to transfer rights as well as to discharge claims.
    5. We contend that all these claims were properly raised, or might have been raised, in the suit in chancery at Mobile between Mi-s. "Hitchcock and the plaintiffs in error. That the adjudication in that court covers all the questions of right that are embraced in this suit, or that they were the appropriate subjects of adjudication then, and waived by her if not legally presentee!: That the title of the trustees was quieted by that litigation, and ought not to be disturbed.
    The counsel then proceeded to argue these points, and cited Drew v. Norbury, 3 Jon. & Lat. 284, to show that where a person had several estates and interest, they all passed under a deed. Sugden on Powers, 82; Hobart, 153; 10 Vesey, 246; Note 7 to Appendix 2 Co. Litt. 800, (Thomas’s Coke); and that even supposing that the widow’s dower did not pass under the mortgage, and that her deed to the trustees only conveyed her interest under the will, still she could not recover in this suit. That she was estopped by her deed from disputing the validity artd binding operation of the will, and from defeating the estate she claimed under it, by holding up a title she might have possessed at the time of her deed in contradiction to that she purports to convey under the will. 1 Metcalf, 180; 8 Ham. 180; 6 East, 105; Carver v. Jackson, 4 Pet. 85, 86; Harding v. Ambler, 3 M. & Wels. 279; 2 Adol. & E. 278; 1 Id. 792; 1 Ired. 566.
    Whether, in the absence of any statutory provision, her acts, apart from this deed, would amount to an acceptance of the provisions of the will, will appear from 2 Yeates, 102; 6 Rand. 541; 17 S. & R. 16; 4 H. & M. 23; 3 Yeates, 79; 3 Fairf. 138; 10 Johns. 30.
    The counsel for the appellee
    made, amongst others, the following points:
    1. The mortgage is the deed of Henry Hitchcock only. His wife is no party to it. It contains no words of grant from her. Her name is not mentioned in the deed, not even in the clause of attestation. If she signed and sealed the mortgage, such acts would not make it her deed, and would leave her right to dower unimpaired. 4 How. Rep. (U. S.) 241, 242; 9 Mass. Rep. 218; 3 Mason’s Cir. Ct. Rep. 347, 349; 16 Ala. Rep. 130; 7 Ohio Rep. 195; 10 Ohio Rep. 305-307; 7 Mass. Rep. 14; 13 Mass. Rep. 223.
    2. The certificate of the notary that she acknowledged she signed, sealed, and delivered the indenture of mortgage, gives no effect to the mortgage against her right to dower, because the acknowledgment was of the deed of mortgage, which could not convey her right of dower, as it was not her .deed, and contained no grant from her. The interest of a married woman in real estate can be conveyed only by a grant from her in a deed, to which she is a party. The execution of her deed must be acknowledged by her before an officer authorized to receive it, and in the mode prescribed by law. •' The fact that she made the acknowledgment and in the legal mode, can be proved only'by the certificate thereof made by a proper officer, and the'one before whom the acknowledgment was made. 4 How. Rep. (U. S.) 242; 3 Mason’s Cir. Ct. Rep. 348, 349 ; 9 Mass. Rep. 218; 2 Story’s Eq. 618; sect. 1391; Macqueen on Husband and Wife, Appendix No. 1, 37, 38; Id. No. 2, 49.
    6. The relinquishment, if she had acknowledged the execution, of it, would be no bar to her right to dower. The statute law requires such a deed to be made and acknowledged by a wife as would convey her own estate, if her deed included her own land. Such a deed, properly acknowledged, will convey her dower, if her right to dower be her interest in the real estate, included in her deed. Clay’s Dig. 155, sect. 27, 28; 7 Mass. Rep. 14, 20; Aik. Dig. 93, sect. 29.
    11. The effect of the acts of Mrs. Hitchcock, in taking possession of the mortgaged premises and conveying the equity of redemption, was not an election on her part of the trust made in the will for her benefit. Her possession and conveyance were in effect as trustee for the creditors who were beneficiaries. She did no act, in her individual character, unconnected with the relation of trustee which she bore to others, and secured by her conveyance no benefit for herself. 1 P. Wms. 315, 318; 1 Vesey, Jr. 335; 12 Vesey, 136; 3 Stewart’s Rep. 375.
    If her acts had evinced her intention to elect the trust intended by the testator for her benefit, they would not bind her, -as it does not appear that she then had full knowledge of her rights. 2 Vesey, Jr. 572, 577; 12 Vesey, 151, 152; 2 Johns. Ch. R. 451; 2 Vesey, 367, 371.
    The deposition of C.ope proves that the deed of Mrs. Hitchcock to the trustees of the bank, and .the deed of release from Cope and others to her were delivered at the same time. This is competent evidence. 3 Mason’s Circ. Ct. Rep. 348; 15-Pet. 21. They are therefore parts of the same contract, and the release of Cope and others to her was the consideration of her deed to them. 1 Vesey, Sen. 127, 133; 7 B. Monroe’s Rep. 345, 347; 2 Wheat. 290, 291, 299. As Mrs. Hitchcock received, no consideration in money or in a:ay thing else of value to herself, her dower would not be barred by the deed, if a release of her right to dower were expressly made in the deed, and she had intended to make it. 3 Johns, R. 478, 479-488; 16 Johns. R. 47, 48.
    The answer of the appellants in effect admits that the release of the mortgage debt was the consideration of -Mrs. -Hitchcock’s deed to the trustees of the .bank.
    It is stated in the answer that the sum of one hundred and fifty thousand dollars was paid to Mrs. Hitchcock or her agent, as a part of the consideration for her release, to be applied to the payment of other debts of her husband'. If the whole consideration had been money paid by the bank upon an agreement with Mrs. Hitchcock, that it should be applied by her to the payment of other debts of the mortgagor, it would not enlarge the operation of her release of the equity of redemption, and make it a conveyance also of the dower. 7 Cranch, 34, 35, 46, 47.
   Mr. Justice GRIER

delivered the opinion of the court.

The respondent, Mrs. Anne Hitchcock, was complainant below, in two bills filed in the Circuit Court of Alabama, claiming her dower in certain property in the city of Mobile, of which her late husband, Henry Hitchcock, was seized in hit lifetime, and of which the appellants, as trustees of the United States Bank, were in possession, claiming under a mortgage given by said Henry.

The answer admits the marriage of' complainant, and the .seizin and death of her husband, and that the appellants hold the property under a deed of mortgage from him; but deny that complainant has any right of dower in the premises.

1st. Because she was a party to the deed of mortgage, and had relinquished her right of dower by her deed duly executed and acknowledged.

2d. That after the death of her husband, the complainant took possession of his property as sole devisee in fee, and surrendered the possession to the mortgagees in satisfaction of the debt, and for a large consideration paid to her executed a full and absolute release to them of all her. right, title, interfest, and estate, in the mortgaged property.

3d. That she was estopped by a decree of the court of Alabama, on a bill filed by the mortgagees for a foreclosure and to have their title quieted.

If the appellants can succeed in establishing either of these three grounds of defence, they will be entitled to a decree in their favor.

We will therefore consider them in their order.

I. The instrument of mortgage is dated on the 14th July, 1838. The first part of it is a deed poll in, the usual form ‘/Know all men, &c., that I, Henry Hitchcoc of Mobile, &c., in consideration of the sum of ¡$620,530.96, to me in hand paid, by these presents do grant, bargain, sell, &c.,” and concluding, “ Given under my hand and seal, &c.,” and signed “ Henry Hitchcock, Anne Hitchcock,” with their respective seals; also these words, “ Signed, sealed, and delivered in presence of,” but no names of witnesses annexed.

Under these signatures and attestation is the following release, signed and sealed by Anne Hitchcock:

“And I, Anne Hitchcock, wife of the said Henry Hitchcock, for and in consideration of the sum of one dollar, to mé in hand paid by the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, have relinquished, and hereby do relinquish by these presents, all my right and title of dower in and to the above-described premises, to the said Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, the survivors or survivor of them, and to the heirs, executors, and assigns of such survivor, forever.
Witness my hand and seal, this fourteenth day of July, one thousand eight hundred and thirty-eight.
Anne Hitchcock. [Seal.]
Attest: Charles A.,Marston.

The acknowledgment which appears to have been taken at the same time is as follows :

“ The State of Alabama,
Mobile County.
Personally appeared before me, Charles A. Marston, notary-public in and for said county, the above-named Henry Hitchcock, who acknowledged that he signed, sealed, and delivered the foregoing indenture of mortgage to Joseph Cowperthwaite, Thomas Dunlap, and Herman Cope, on the day and year therein mentioned. And also appeared personally • before me, Charles A. Marston, Anne Hitchcock, the wife of said H. Hitchcock, who being examined privately and apart from her said husband, acknowledged that she signed, sealed, and delivered the said indenture of mortgage.freely, and of her own. accord, and without any fear, threats, or compulsion of her said husband.
Given under my hand and seal notarial, this fourteenth day of July, A. D. 1838.
Charles A. Marston.”

The objections to the sufficiency of this instrument to bar the dower of the wife, are, 1st, “ That the mortgage is the deed of the husband only. It contains no words of grant by the wife —her name is not mentioned in the deed.”

2d. That the relinquishment of dower is á several and separate deed, which should have the signature of the husband, to show his consent, and that it was the joint act of husband and wife.

3d. That the acknowledgment of Mrs. Hitchcock is of “ the said 'indenture of mortgage,” and not of her relinquishment of dower.

And, 4th. That the acknowledgment is not in due form of law; '

The first three of these objections are founded on the assumption that the release of Mrs. Hitchcock forms no part of the deed of mortgage, but is a separate and distinct deed. It is true, if that portion of the instrumént, above the joint signatures of the husband and wife, is to be construed as. the whole indenture of mortgage, the first proposition cannot be denied. For the instrument, thus far, does not purport to dispose of any right or interest vested in the wife; and if nothing further had been added, the deed would have been wholly inoperative for that purpose. But the face of the instrument shows that it does not end' there: for it proceeds, “ And I, Anne Hitchcock, &e., in consideration of the sum of one dollar to me in hand paid by the said Joseph, &c., do relinquish all my right and title of dower in and to the above-described premises to the said Joseph, &c.”

Usually this initiate and contingent right of dower is bárred, in deeds of sale and mortgage, by a conveyance making the grant in the joint names of the husband and wife, in the same manner as if the estate belonged to the wife; the deed operating by way of estoppel when the right of dower \becomes complete by the death of the husband. But when the legal estate is vested wholly in the husband, and the right of the wife is but a contingent incumbrance, there is no necessity that she should join in the grant of the fee, the release of her inchoate, right acknowledged in due form, being all that is necessary to bar her from setting up a, claim of dower, after the death of her husband.

The insertion of the clause of release of dower might generally be considered by conveyancers as in better taste, if it had preceded the signature and attestation of the other covenante which’ affected the fee of the husband; but there is no stringent unbending rule of law, which requires a deed to be in such form, or in any peculiar form, in order to operate as a valid conveyance. The intention of the parties is to be gathered from an inspection of the whole instrument of assurance taken together. It ought not to be dislocated and rent into separate fragments by a captious or astute construction, whose only result is to defeat the plain meaning and intention of the parties.

The acts of Assembly of Alabama concerning conveyances, frequently use the phrase “ deeds and relinquishments of dower,” which is probably the cause or the consequence of this form of conveyancing in that State, and that in popular parlance, a conveyance of land in this form is described as if a “ relinquishment of dower ” was not a deed, or a portion of the conveyance,- assurance,, or grant, though made at the same time, and forming a portion of it. The instrument before us, composed of what is popularly called the mortgage and relinquishment of dower, con» stitutes but one deed or conveyance executed by husband and wife for the purpose of conveying the fee vested in the husband, and releasing the inchoate right of the wife. It was all written on the same paper or parchment, for one purpose, the latter sentences connected with those which precede it, by a copulative conjunction. ■ It was all executed at the same time, and acknowledged by husband and wife at the time of its execution; and they have each signed that portion of the conveyance which purports to grant or release their several interests. The relative position of the signatures of the husband and wife, or the unnecessary duplication of either, is of little importance, where the instrument, by apt and proper terms, clearly shows the intention of the parties, that the husband should convey the fee, and the wife join with him in the deed, for the purpose of releasing her contingent estate of dower. In such cases, and especially where this form of assurance is in common use, the astutia, of a court would be illy employed in criticizing the form of the conveyance, in order that one of the parties may be enabled to escape from his covenants, and thus wrong and defraud the other.

Let us now examine whether the acknowledgment of the wife is sufficient, according to the statutes of Alabama, to operate as a conveyance or relinquishment of her right of dower.

'The act of Assembly of Alabama on this subject (Aikin’s Digest, 93, § 29) is a's follows:

“ No estate of a feme covert, in any lands, tenements, or hereditaments, lying and being in this territory, shall pass by her deed or conveyance, without a previous acknowledgment made by her on a private examination apart from her husband, before one of the territorial judges, or one of the justices of the County Court, that she signed, sealed, and delivered the same as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband, and a certificate thereof, written on or under the said deed or conveyance, and signed by the officer before whom it was made; and every deed or conveyance so executed and acknowledged by a feme covert, and certified as aforesaid, shall release and bar her right of dower, and be good and effectual to convey the lands, tenements, and hereditaments thereby intended to be conveyed.”

One of the objections to the acknowledgment of Mrs. Hitchcock is, that she acknowledges to have signed and sealed the said indenture' of mortgage,” and not that part of it called the “ relinquishment of dower.” This objection we think is- hypercritical. “ Hasret in Ktem.” It is founded on the assumption which we have ju3t noticed, that the several covenants signed by the husband and wife do not constitute one assurance or deed of mortgage. The same criticism would annul the acknowledgment of the husband, which is, “ that he executed the foregoing indenture,” whereas the deed signed by him is a deed poll and not an indenture. Surely no court would declare his acknowledgment invalid for this slight misnomer. It would, certainly, be no great latitude of construction, even if they were separate and distinct instruments, to refer the acknowledgment of the wife to that one which contains her own grant or release, and which she has signed and sealed. Even in cases of doubtful construction, the rule of law is, that the court should construe the instrument ut res magis valent,* and not annul it by such fanciful criticism.

It is objected, also, that this acknowledgment is not in the very words of the statute. In place of the words, “ as her vbluntary act and deed,. freely,” it substitutes the words, “ freely and of her own accord.”

That the words of the acknowledgment have the same meaning, and are in substance the same with those used in the statute it needs no argument to demonstrate; and that such an acknowledgment is a sufficient compliance with the statute' to give validity to the deed of the wife, is not only consonant with reason, but, as the cases cited by counsel show, supported by very numerous authorities. The act requires a private examin-’ ation of the wife to ascertain that she acts freely and not by compulsion of her husband, but it prescribes no precise form of words to be used in the certificate, nor requires that it should contain all the synonymes used in the statute to express the meaning of the legislature. In other acts of the same legislature, where a precise form of acknowledgment of certain deeds is prescribed, it is provided, that “ any certificate of probate or acknowledgment of any such deed, shall be good and effectual if it contain the substance, whether it be in the form or not, of that set forth in the first section of this act.” Clay’s Dig. 153. -The legislature have thus shown a laudable anxiety to hinder a construction of their statutes, which would require a stringent adherence to a mere form of words without regard! to their meaning or substance, and make the validity of titles to depend on the verbal accuracy of careless scriveners.

We are, therefore, of opinion that the certificate of the acknowledgment of the complainant of the deed executed by her, is valid and sufficient in law to bar her claim of dower in the mortgaged premises.

II. But, even if this deed of mortgage were not a sufficient ■ bar to the claim, we are of opinion that the deed of release executed by the complainant on the 8th of February, 1840, is a complete bar and estoppel to the, claim set up in her bill.

Henry Hitchcock died in August, 1839, having first made his will, in which he devises all his estate, real and personal, to the complainant in trust to sell and dispose of the same, and invest it for the use of herself and children, share and share alike. Under this devise she entered and. took possession of the estate of her husband, and, in consideration of the sum of $150,000, paid to her by the trustees of the. bank, and of a release by them of all claim upon the other estate of the deceased, she executed, on ,8th of February, 1840, á deed of release of the. mortgaged property, containing the following recitals and covenants. “ This indenture, made, &c., between Anne Hitchcock, widow and sole devisee of Henry Hitchcock, acting under and by virtue of the last will and testament, of said Henry Hitchcock, duly proved, &e., of the first part, and Joseph Cowperthwaite, &c., of the second. part, witnesseth, that the party of the first part, for,- and in consideration of the sum of $773,352, &c., hath remised, conveyed, and forever quitclaimed, and doth remise, &c., • to the said parties of the second part, all the estate, right, title, interest, use, property, claim, and demand whatsoever, at law as well as in equity, in possession as well as in reversion of, in, to, or out of all. and singular, the following described premises, to wit, &c., &e.: “ To have and to hold all and singular the afores.aid lands, tenements, improvements, and appurtenances, unto the said parties of the second part, the survivors and survivor of them, and the heirs, executors, administrators, and assigns of said survivor to their own proper use, benefit, and behoof forever; so that neither the said party of the first part, her heirs off assigns, nor any person or persons whatsoever, in trust for them or her, or in her or their name or names, can or may, by any ways or means whatsoever, hereafter have, claim, challenge, or. demand any right, title, interest or estate of, in, to, or out of all and singular the premises above described, and ■ hereby released and conveyed; but therefrom and thereout are and shall be by these presents forever excluded and debarred.”

By. the law of Alabama, the wide W is allowed one year after probate of the will to make her election, whether to take under it or not. The will of Henry Hitchcock was admitted to probate on the, 17th August, 1839, and cm the 14th of August, 1840, the widow filed her election, renouncing all benefit under .the will and electing to take her dower. This bill was filed on the 29th of April, 1847, nearly seven years afterwards.

She makes no offer in her bill to restore the sum of $150,000 paid to her or her agent, or to surrender the release given to her by the trustees.of the bank which was the consideration paid for her release, but contends that she is remitted to her original rights by her last election, and is not estopped by her deed which was merely the execution of a power, and could not affect her personal right, or bar her claim to dower in the land conveyed or released.

It is admitted, that the mere equity of redemption of this property was worth nothing; on the contrary, the other property of the mortgagor would have been liable for a large portion of the bond which accompanied the mortgage. Yet, it is contended, that the widow may elect to take under this devise in the will; that, under pretence and belief of such election, she may get her husband’s estate released from a debt and receive a large consideration in money for a release of her title as “ sole devisee,” and afterwards change her election, defeat all the covenants of her own deed, and yet retain the whole consideration paid for it. It is not worth while to examine what acts of a widow amount to an election in pais to take under the will. It is clear she cannot take possession, under the will and sell the title in fee conferred upon her by the devises in it, and then revoke her grant by changing her election within the year. ■ The time given to the widow by the law, to make her election, is intended for her protection, and not that she shall use it as a weápon of, offence to defraud others. Courts of equity do not exert their powers, even in favor of widows, to assist them in such a transaction. The deed executed by the complainant in 1840 is an estoppel, both in law and equity, against this claim of dower. By this deed, she professes to convey, as “ widow,” “ sole devisee,” and under the powers vested in her by the will. She releases all claim or demand in law or equity, in possession or expectancy, “so that neither she,.nor her heirs, can or may, by any ways or means whatsoever, hereafter have, claim, challenge, or demand any right, title, interest, or estate in the premises.”' It is hard to conceive how any conveyancer could devise language more comprehensive, or legal phraseology moré stringent, to convey every possible estate of the grantor and operate as a perfect legal estoppel against all possible claim in any character whatever. If this had been a mere naked power of appointment, or to make a conveyance of the title of the deceased, not coupled, with an interest, and the widow had intended merely to exercise such power without affecting her own right in th'e property, her deed should have been carefully drawn,.so as to show on its face an intention to save her own.rights, if she did not intend to convey them. For, it is a settled rule of construction, that “ whoever conveys to a purchaser, without restraining • the operation of his conveyance, shall be deemed to convey in every .character, which enabled him to give effect to ■ his deed.” Sugden, on Powers, 82; Coxe v. Chamberlain, 4 Ves. Jr. 637, &c.

This cage is much stronger against the grantor; for her deed was worthless, unless she had elected to take' the devise under the will, and having recited in her deed, that she was “ widow and sole devisee,” she is thereby estopped from denying that she conveyed all rights heíd in either character, or, as between her and the grantees, ever asserting, that she had not elected to take as sole devisee.

Being, therefore, of opinion, that the. complainant below is doubly estopped from setting up this claim of dower,, it will be unnecessary to consider the third point of defence urged by appellant’s counsel, as to the effect of the decree of foreclosure.

The decree of the Circuit Court is therefore reversed, and the bill dismissed with costs.

Order.

This cause came on to be heard on the transcript of the record, from the Circuity Court of the United States for the. Southern District of Alabama, and was argued by' counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the décree 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 ito the said Circuit Court, with directions to dismiss the bill of complaint with costs.


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    Tristram Clark, Royal Williams, Ebenezer McLellan, Thomas McLellan, and James R. S. Williams, Claimants of the Barque Susan W. Lind, Appellants, v. Nathaniel Barnwell and James Ravenel, Copartners trading under the firm of Barnwell & Ravenel.
    Where'goods are shipped and the usual bill of lading given, “promising to deliver them in good order, the dangers of the seas excepted,” and they are found to be damaged, the onus probandi is upon the owners of the .vessel, to show that the injury was occasioned by one of the excepted causes.
    But, although the injury .may have been occasioned by one • of the excepted causes, y t still the owners of the. vessel are responsible if the injury might have been avoided, by the exercise of reasonable skill and attention on the part of the persons employed in the conveyance of the goods. But the onus probandi then becomes ' shifted upon the shipper, to show the negligence..
    Wb ire spools of cotton thread, put up in boxes, were shipped al Liverpool for Charleston, and' the vessel had a voyage of sixty-one days, going far south into a warm climate, and the thread was an article peculiarly subject to the effect of dampness, some of the inside boxes being stained, whilst the outside ones were not the cargo - also being well stowed and dunnaged, the injury must be attributed to the dangers of the seas.
    The usage of trade is to bring sacks of salt in the same vessel with dry goo.ds; and the evidence in ¿lis case is that, if the salt be well stowed; it does not increase the humidity of the vessel^ but rather acts the other way.
    In this- case, also, there was no evidence that the shipmaster was guilty of any negligence, in omitting to provide proper precautionary measures. He was not responsible for the effect of boisterous weather or adverse winds. .
    The words “ contents unknown ” being annexed to a bill of lading, imply that the master only meant to acknowledge the shipment in good order of the cases, as to their external condition. He might justify himself by showing that the contents were not in good order, but the eyidence in this case shows that they were so; and the injury must be attributed to the dangers of the seas. ,
    This was an appeal from the Circuit Court of the United States for the District of South Carolina..
    It.was originally a libel, filed yi the District Court by Barn-well & RaVenel against the ship Susan W. Lind, under the following circumstances: .
    On the 4th of March, 1848, Richard Shiel & Co. shipped, at Liverpool, in the ship Susan W. .Lind, Tristram Clark, master, twenty-four boxes of cotton thread, consigned to Barnwell & Ravenel at Charleston. The bill Pf lading contained the usual clause, “ to be delivered in like good order, (all and every, the dangers and accidents of the seas and navigation, of whatsoever nature and kind, excepted,”) and was signed by Clark, with the remark, “ contents unknown.”
    ' The vessel sailed from Liverpool on the 14th of March, and. arrived at Charleston on the 13th of May.
    On his arrival, the captain made a protest, showing that the voyage had been very boisterous, and that .the vessel had often shipped large quantities of water.
    On the 15th of May, the captain requested the wardens of the port to make the survey pf his vessel, and they continued the inspection, during the discharging of the cargo. The following is that part of their report which related to the goods in question :
    “ On the 29th and 31st, the wardens examined twenty-two cases marked C [B R] ‡ 71 & 92. After they were landed and in store, found many of them stained outside with'mud, dry, and in good order; oii" opening the cases, the wood inside in several of the cases appeared stained; inside of these cases were stowed small boxes; on opening them, the cotton thread contained therein was found musty, mouldy, and damaged; which,- in our opinion, has been caused by the great, humidity, sweat, and dampness of the hold.”
    Barnwell & Ravenel also had a survey made by Mood and . Smith, who reported as’follows:
    “ That we found the whole of the contents of the said twenty-two eases to be in a damaged and. unmerchantable condition; and we concurred in recommending an early sale thereof at public auction, for' account of whom it may concern. And we do further certify that, if the said cotton sewing-thread had been landed in a sound and merchantable state, the same would be worth in this market, at the present timé, for cash, forty-five dollars per box, containing one hundred dozen spools, say 22 cases, each containing 6 boxes of 100 dozen.
    132 boxes a $45 per box,.....$5,940
    “ Witness our hands, at Charleston aforesaid, the thirty-first day of May, in the year 1848.
    Wm. G. Mood,
    Thos. P. Smith.”
    The goods were sold - at auction, and produced only the net sum of $3,335.09; but the duties being abated by $376.02, the loss was claimed to amount to $2,228.89.
    On the 31st of May, 1848, Barnwell & Ravenel filed their libel in the District Court of the United States against the ship, her tackle, apparel, and furniture, and against Clark and all persons wfio should intervene!
    On the 3th of June, 1848, Clark filed a claim for himself, Royal Williams, Ebenezer McLellan, Thomas McLellan, and James R. S. Williams, all of Portland, in Maine; and after-wards an answer was filed, denying all the allegations of the libel.
    rA considerable amount of evidence was heard, tending to show the value of the articles shipped, the state in which they were landed, the amount of damage sustained and the causes to which it could be attributed.
    On the 24th of June, 1848, the district judge dismissed 'the libel on the ground of there not being introduced at the trial of the cause, sufficient evidence to establish the fact of the goods being in good order and condition at the time of their shipment.
    The libellants appealed to the Circuit Court. Additional testimony. was taken to show that the goods were shipped- in good condition.
    On* the 8th of May, 1849, the Circuit Court reversed the decree of the District Court, “ conclusive evidence having been given to this court which was not produced before the said District Court as to the shipment of the goods at Liverpool in good order and condition,” and decreed that the respondents should pay to the libellants the sum of $2,228.89 with costs.
    . The respondents appealed to this court. It was argued by Mr. Evans for the appellants, and Mr. Coxe for the appellees.
    The whole evidence having been brought up and the argument consisting chiefly of all examination of the facts proven, it is obvious that only the points made by counsel can be stated.
    The counsel for the appellants
    contended,
    1. That the injury which the thread was found to have received was not occasioned by any defect or want of seaworthiness of the vessel, or any want of care in the stowage of the cargo, or in navigating the vessel; nor by any neglect, fault, or mismanagement of the master or crew. That salt in sacks is not an unsuitable article to compose a part of the cargo in a general ship.
    That the .injury which the thread appeared to have sustained was not occasioned by the salt whibh composed a portion of the cargo ; but, if sustained on board, arose from other causes, for whibh the vessel and owners are not responsible. ■

      2. If the injury was occasioned by the dampness of the hold of the vessel necessarily and naturally incident to such a voy.age, the vessel and owners are not responsible, it being one of the perils of navigation within the exception of the bill of lading-
    The exception is: “ All and every the dangers and accidents of the seas and of navigation, of whatever nature and kind.”
    All vessels are subject to dampness in the hold, and especially vessels laden at Liverpool, which is a damp -and wet place. “ Liverpool is very damp.” “ Ships, with or without cargo, are always damp, more of less, especially in summer, on a voyage from Liverpool to Charleston.” “ The heat of the ocean and other causes do produce dampness,” &c.
    3. That the thread was insecurely and insufficiently packed for so long and boisterous a voyage as this was. This is manifest from, the frequent instances of injuries received by other thread, similarly put up; from the practice of other manufacturers to pack in tin cases, and from the adoption of that mode by Coates & Co., in consequence of the repeated instances of damages sustained on the voyage by thread packed in wooden boxes.
    4. .That the proof is insufficient to show that the thread was in good order at the time of shipment. In some of the boxes the spools in the centre were injured, while the layers above and around them were uninjured, which could not have happened if the injury arose from exposure to dampness pn board ship.
    The bill of lading is not conclusive that tne goods were in good order at the time of shipment.
    “ It is obvious that the quality, and frequently also the quantity, of the goods must be unknown to the master, and the Commentator on the (French) ordinance, (Valin,) informs us, that by the quality, the exterior and apparent quality only is meant,” &c.
    Abbott on Ship, part 4, ch. 4, sect. 9, also sect. 1; Bates v. Todd, 1 Mood. & Rob. 106; Berkley v. Watling, 7 Ad. & El. 29. Memorandum at foot of bill lading, — “ contents unknown.”
    The goods in this case were delivered apparently in the same condition as received.
    -5. The respondents are not liable for the two cases stowed near the salt, the injury to which was of the same kind and degree and arose from the same cause, as existed in regard to the others.
    6. That the libellants are not entitled- to maintain this process, having no property or interest in the goods, and not being parties to the contract.

      “ The party really entitled to the relief should always be made the libellant. The practice of instituting a suit in the name of one person, for the benefit of another, to whom the right has been transferred, or of making one person libellant as the representative of many others, does not obtain in the admiralty,” &c. Benedict’s Admiralty, p. 210, sect. 380.
    “ The court looks only to rights in the thing itself; to ownership general or special, and to such claims as are direct in the proprietary interest, sueh as a legal title, a jus in re; or to such as are indirect, as alien or jus ad rem.” Per Story, Ship Packet, 3 Mason, 258.
    “ If the person to whom delivery is ordered is only ah agent of the shipper and has no property in the goods, it. has been thought that he cannot maintain an action in his own name against the master for not delivering them; not in assumpsit, for the contract was not made with. him, but with a third person, the consignor of the goods ; not in trover, because no property having passed to him, he can have no right to, complain of their non-delivery or conversion, as an injury .to himself.” Abbott on Ship, part 4, ch. 4, sects. 6, 7.

      Mr. Coxe for the appellees.
    From the abstract of the case, it appears that the decision of the District Court rested entirely upon a defect in the evidence; and of the Circuit Court upon the ground that new and. additional testimony had" been introduced to cure that defect. If so, the case comes precisely within the language of Lord Chancellor Truro, in the recent case of Stuart v. Lloyd, 15 Jurist, 411; 4 Eng. Law and Eq. Rep. 3: “ Were I called upon in this case to review the judgment of the Lord Chancellor upon matters of fact, I should require a very strong case to be made out to induce me to overrule that opinion, as I think that the better course is to rest satisfied with the opinion of one judge upon such matters.” Such a doctrine promulgated from such high authority needs no comment.
    Should the court, fiowever, consider the question as entirely open, or that it involves any question of law of a debatable character, then the appellees' submit, —
    1. That the onus probandi is always on the carrier to exempt himself. Story on Bailim sect. 529.
    The bill- of lading, which, on its face, says, “ shipped in good order,” is, at least so far as regards the exterior appearance, conclusive evidence of the condition of the goods. Benjamin v. Sinclair, 1 Bailey’s S. C. Rep. 174. The fact of damage being positively established, it devolves upon the carrier to show that it resulted from the only exception to responsibility which the bill of lading recognizes, “ the dangers and accidents of the seas and navigation.”
    It is perhaps unnecessary for us to contend that it is conclusive evidence. It will be sufficient for us to say what can scarcely be denied, that it is prima facie and cogent evidence of what it asserts. It may be impugned for. fraud, but I am not aware of any decision which avows it to be questioned upon any other. ground. Some dicta may be found which put it upon the footing of a receipt for money, and permit it to be explained, or even contradicted, but no such doctrine is established by any judicial decision of which I am. aware.
    Bates v. Todd, 1 Mood. & Rob. 106, is a nisi prius decision. It is inaccurately given in Abbott, 324. In the original report it is distinctly stated that fraud proved is a sufficient ground to impeach a solemn deed or even a judgment. Abbott, however, omits to notice this important feature in the case.
    Berkley v. Watling, 7 Ad. & El. 29, was an action of assumpsit in a common-law court, brought by an assignee of a bill of lading. In p. 35, Patteson J. refers to this circumstance, and asks, Where is the contract between the shipper and the assignee ?
    The decision of that case was put on the ground that plaintiff’s agent was cognizant of the true state of facts varying from the bill of lading, and that knowledge of the agent is knowledge of the principal.
    Whatever weight is to be given to the bill of lading in this particular, the .evidence dehors is strong, if not, as the Circuit Court considers it, conclusive upon this point.

      Mr. Goxe then examined the testimony,
    2. The evidence furnished by the bill of lading being, in this case, corroborated by the positive testimony of witnesses, it can scarcely.be that any doubt can exist .upon the questions of law which grow out of the facts. The carrier can only exonerate himself from the responsibility thus primd facie established, by showing affirmatively his exemption. He must either disprove the evidence upon which he is charged; the character of the goods when shipped; that they were in good condition when delivered; or that the damage which they have suffered is attributable to the act of God, or the public enemy. Abbott on Ship. 420, 467; Story on Bailm. sect. 509; 2 Kent’s Com. 602; Forward v. Pittard, 1 T. R. 27. Even in a case where any negligence on the part of. the carrier is negatived. Siordet v. Hall, 4 Bing. 607.
    In the case at bar it was, on the other hand, affirmatively shown that there was a quantity of salt shipped on board the vessel, and that such a cargo has a tendency, to produce dampness, which is calculated to damage goods of the character of those shipped by libellants. Story on Bailm. sect. 509. For an injury thus resulting, the carrier is, unquestionably, responsible. The cause of the injury is not one of those for which he can claim exemption from responsibility.
    3. The thread was insecurely and insufficiently packed, the counsel on the other side contends, for such a long and boisterous voyage as this was.
    ' The voyage was two months, and the:ship sustained' no damage. No ocean-water was found in her.
    But it is said that the libellants, being consignees, have no right.'to bring this suit. The bill of lading was executed by the master of the ship, and its obligation enured to the benefit of all those who are interested in the' goods shipped. In this case the contract is expressly to deliver these goods to the libellants by name, and that undertaking is conditional" on the payment of freight at Charleston, the port of delivery: They are thus made, in terms, parties to the contract: So far as regards, the simple fact of delivery,, the contract was performed; the goods were delivered at Charleston to the libellants. The bill of lading further stipulates that the goods are to be deliveredin like goód order and condition.” ~ As libellants were entitled to receive the goods, they were entitled to have them delivered in' good condition.
    The shippers were merely consignees, and never had any other interest or concern in the property. (See their testimony.)
    The authorities cited in appellants’ brief show that these shippers could-not have brougfrLthis suit, they having no interest in the property. But these authorities do not admit of the construction given to them. ' The langttage of Mr; Justice Story, as cited from 3 Mason; has not the remotest .connection with the doetrine it is invoked to support. In that case the New England, Marine Ins. Co. filed.a libel on a bottomry-bond. This company was an underwriter upon the vessel, and .a loss having ensued the ship was abandoned to the underwriter, but the company had refused to accept the abandonment; and in deciding against its right to institute the suit, Judge Story employs the language cited by the counsel. The correct doctrine is laid down in Abbott, 325, 328, 330, 335. In 337 it is said the consignee will be deemed to have the property, unless the contrary appears. That he is the proper party to enforce the obligations of the bill of lading, is most clearly and conclusively shown in 6 Serg. & Rawle, 429.. See particularly the opinion of Tilghman C. J., and Duncan, J.
   Mr. Justice NELSON

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the District of South Carolina in admiralty.

The libel was filed against the ship Susan W. Lind and owners for alleged damage to cargo shipped to the libellants, as consignees, from Liverpool to Charleston, through the neglect and fault of the master. The goods shipped were twenty-four boxes of cotton thread, which on delivery at Charleston were damaged to the amount of some fifty per cent. The spools of thread were packed in small wooden boxes fined with paper, one hundred dozen in eaeh box, and again inclosed in a large wooden box, six. small boxes in each large one, lined with paper between the small boxes. When these boxes were delivered and opened, the spools of thread in each of the small boxes were more or less stained, and spotted by dampness and mould, though the large and small boxes themselves were generally dry, as was also the paper covering the thread.

The respondents in their answer allege, that, if the content's of the boxes were in a damaged state when opened, the damage must have existed, or originated in causes that existed, before they Were delivered on board the ship, though not indicated by the external appearance of the boxes; or must have been produced by the effects of the dampness of the atmosphere in the hold of the vessel to which goods, wares, and merchandise' are exposed, and, especially such as were shipped for the libellants, in all vessels, however tight and stanch, with cargoes however well stowed, on as long and boisterous a passage as was experienced by the Susan W. Lind.; or, the same was caused by such dampness in consequence of tfie neglect of the shipper in not having packed the cotton thread in boxes calculated to exclude the damp air which otherwise it must be subject to in the transportation across the Atlantic.

The vessel sailed from Liverpool on the fourteenth day of March, 1848, and arrived at Charleston, her port of destination, on the fourteenth day of May following, making a long voyage of sixty-one days, during which she encountered rough weather' and. violent gales, causing her to labor heavily, and occasionally ship water.

As we have already stated, the cotton thread, when the boxes were delivered to the consignees and opened, was found damaged on account of stains and spots, the effect apparently of dampness and mould happening in the course of the shipment.

' The bill. of lading admits that the twenty-four boxes were shipped in good order,1 and bound the respondents to deliver the .same in.like good order, “all, and every the dangers and accidents of the seas and navigation „of whatsoever nature and kind excepted.” . And the main question in the case is, whether or not the damage in question was occasioned by pne of the perils’and accidents within this clause of the bill of lading? For, as the masters and owners, like other common-carriers, may be answerable for the goods, although no actual blame is imputable to them, and- unless they bring the - case within the exception, in considering whether .they are chargeable for a particular ’loss, the question is, not whether the loss happened by reason of the negligence of the persons employed in the conveyance of the goods, but whether it was occasioned by any of those causes, which, either according to the general rules of lawy.or the particular stipulations of the parties, afford ah excuse for'the non-performance of the contract.1 After the damage to the goods, therefore, has been established, the burden lies upon the respondents to show, that it was occasioned by one of the perils from which they were exempted by the bill of lading, and, even where evidence has been thus given bringing the particular loss or damage within, one of the dangers or- accidents of the navigation, it is still competent for the shippers to show, that it might have been avoided by the exercise of reasonable skill and attention on the part, of the persons employed in1 the conveyance, of the goods; for, then, it is not .deemed to be, in the sense of the law, such a loss as will exempt' the carrier from liability, but rather a loss occasioned by his negligence, and1 inattention to his duty. Hence it is, that, although the loss occurs by a peril of the sea, yet if it might have been avoided by skill and diligence at the time, the carrier is liable. But in this stage and. posture of the case, the burden is upon-'the plaintiff to establish the negligence, as the affirmative lies .upon him. On this, ground in the case of Muddle v. Stride, 9 Car. & Payne, 380, which was an action against the proprietors of a steam vessel to recover compensation for damage to goods sent by them as carriers, Lord Chief Justice Denman, in summing up to the jury observed, “if on the whole, it be left in doubt what the cause of the injury was, or, if it may as well be attributable to ‘perils of the sea’ as .to negligence, the plaintiff cannot recover; but, if the perils of the seas require that more care should be used in the stowing of the goods (articles of silk and linen) on board, than was bestowed on them, that will be negligence for which the owners of the vessel will be liable. That the jury were to see clearly, that the defendants were guilty of negligence before they could find a verdict against them.”

Now, applying these principles to the facts disclosed in the record, we shall be enabled to determine whether or not the respondents in the court below'are liable for the damage that happened to the goods in question, as they settle, with great clearness, the rule of responsibility, and, also, on whioh side the burden of proof lies to charge or exonerate them as common-carriers. And, on- looking into these facts, it will be seen, that' all the witnesses concur in the conclusion that the damage was occasioned by the humidity of the atmosphere and dampness of the ship’s hold, producing mould and mildew upon the cotton spools, and- thereby staining and spotting the thread, impairing' its strength, and rendering it unmerchantable. The article appears to be -peculiarly subject to the effect of humidity and dampness, as the paper with which it was covered in the small boxes was generally dry, and unaffected, when at the same time, the thread beneath was mildewed and stained, and what is more remarkable, in many, instances the upper layers of the spools were perfectly dry and sound, while those lying in the centre were' mouldy and spotted; and in other instances, the only part affected were the layers.in the centre.

The vessel was a géneral ship, tight and stanch, well equipped, and manned'; and was laden with a mixed cargo, consisting of cases and crates of dry goods, hardware, and about two thousand sacks of salt. The cargo was well stowed and dunnaged. The sacks of salt when discharged were dry as usual, and in good condition; and no part of the cargo, except the cases in question, appears to haye been injured in the voyage, or the subject of any complaint.

It was insisted on the argument, that the respondents were in fault in taking on board then vessel the goods in question with salt as part of the cargo ; but, the evidence is full that salt in sacks is part of a mixed cargo of nearly all the vessels engaged in the trpffe between Liverpool and Charleston. One witness, who has been in the Liverpool trade for ten years, states, that salt is part of the cargo of nine out of ten vessels trading front that portto the United States; Several shipmasters who have been engaged in this trade, state, that salt always constituted a part of their cargo, and they never knew any damage occasioned to the other goods. Indeed, the evidence is all one way on this point. In consequence of damage occasionally happening, to these goods, and others of like character, in vessels of a mixed cargo of which salt was a part, some merchants latterly gave particular, directions to their'correspondents not to send their goods in a ship of this description. . But this only shows that the general usage of the trade would justify the shipment with salt as part of the cargo, and hence the necessity of the particular instructions.

The weight of the evidence also seems to be, that the presence of salt as part of the’cargo of the ship does not produce humidity Or dampness in the atmosphere; but tends rather to diminish it by attracting and absorbing the humidity; ’ and that unless in contact with the salt, or exposed to the • drain from it by bad stowage, no injury would accrue to the other goods.

Some attempt was also made upon the argument to show that the salt was badly stowed, regard being had to the nature and character of the goods in question; and that the damage was properly attributed to this circumstance. But there is no foundation for the argument upon the evidence. The salt was not within thirty feet of the cases of, dry goods, with the exception of two cases, which were well dunnaged with matting and an inch board between them and the salt. The spools of thread in these were not damaged more than in the rest of the boxes.

Now the evidence showing very satisfactorily that the damage to the goods was occasioned by the effect of the humidity and dampness, which in the absence of any defect in the ship, or návigation of the same, or in the stowage, is one of the dangers and accidents of the seas for which the carrier is not liable, the burr den lay upon the libellants to show, that it might notwithstanding have been prevented by reasonable skill and diligence of those employed in the conveyance of the goods. For, it has been held, if the damage has proceeded from an intrinsic principle of decay naturally inherent in the commodity itself, whether active in every situation, or only in the confinement and closeness of the ship, the merchant must bear the- loss as well as pay the freight; as the master and owners are in no fault, nor does their contract contain any insurance or warranty against such an event. 12 East, 381; 4 Campb. 119; 6 Taunt. 65; Abbott on Ship. 428, (Shee’s Ed.) But if it can be show;* that it might have been avoided by the use of proper precautionary measures, and that the usual and customary methods for this purpose have been neglected, they may still be held liable. And the same rule applies in the case of damage on account of the humidity and dampness of the ship, which is* more or less, incident to all vessels engaged in trade and navigation, especially upon the high seas. Notwithstanding, therefore, the proof was clear, that the damage was occasioned by the effect of the humidity and dampness of the vessel, which is one of the dangers of navigation, it was competent for the libellants to show, that the respondents might have prevented it by proper skill and diligence in the discharge of their duties; but no such evidence is found in the record. For aught that appears every precaution w'as taken that is usual or customary, or known to shipmasters, to avoid, the damage in question. And hence we are obliged to conclude that it is to be attributed exclusively to the dampness of the atmosphere of the vessel, without negligence or fault on thg part of the master or owners.

No doubt the unusual duration of; the voyage, on account of tempestuous weather and adverse winds, in connection with the fact that it was one in which the ship passed from a northern to a southern latitude, and in a season of the year when the change from a cold to a warm climate must have been considerable, greatly increased the dampness, and also the influence of it upon goods liable to damage from that cause.

But the carrier is not responsible for delay in the voyage on. account of boisterous weather or adverse winds, low tides, or the like, as was held in the case of Boyle v. M’Laughlin, 4 Harr. & J. 291. These are dangers and accidents of the riavigation over which he has no control, and against which his contract contains no warranty.

Another point was made on the part of the respondents- below, which it m&y be proper briefly to notice. It was insisted that these goods had hot been packed in good condition in the boxes at Paisley by the manufacturer, or if otherwise, that the damage might have happened to them in the conveyance from that place to Liverpool, before they were, shipped for Charleston.

The bill of lading contained, the usual clause, that they were shipped in good order; but there was added, at the conclusion, “ contents unknown.”

It is obvious, therefore, that the acknowledgment of the master as to rne condition of the goods when received on board, extended only to the external condition of the cases, excluding any implication as to the quantity or quality of the article, condition of it at the time received on board, or whether properly packed or not in the boxes. Abbott, 339, (Shee’s Ed.) p. 216, (Story’s Ed.) And if the evidence on the part of the defence laid a foundation for a reasonable inference, .that the damage resulted from, an imperfection in the goods when packed in the cases, or had occurred previously to their being shipped on board, the burden was thrown upon the libellants to rebut the inference. It was accordingly assumed in this case, and evidence produced as to the condition of the thread when packed at Paisley, and also in respect to the mode of conveyance from that place to Liverpool, preparatory to the shipment. The explanation is as full perhaps as could be well furnished, or as is usual, under the circumstances, and brings the case, down, we think, to thfe question of damage occasioned by the effect of the humidity and dampness of the vessel in the course of the voyage. We have already expressed our views upon that question, the result of which is that the decree must be reversed.

Mr. Chief-Justice TANEY and Mr. Justice WAYNE dissented.

Order.

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 South Carolina, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree 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 saijd Circuit Court for further proceedings to be had -therein, in conformity to the opinion of this court.


author: Mr. Justice WAYNE

text:
    William W. Teal, Plaintiff in error, v. Mary C. Felton, by her next friend, Charles T. Hicks.
    The 13th and,30th sections of the act of Congress, passed in 1825, (4 Stat. at Large, 105 - 111,) forbid a writing or memorandum from being written on a newspaper, or ■ other printed paper, pamphlet, or magazine, and transmitted by mail.
    The 'Postmaster-General directed that if the wrappers of newspapers, pamphlets, or magazines, should be found to contain any manuscript or memorandum of any kind, either written or stamped, or marks or signs made in any way, by which information shall be asked or communicated, it should be charged with letter-postage.
    The part of the order relating to marks or signs was not justified.by the law.
    Hence, where a postmaster refused to deliver a newspaper upon which there was- an. “initial,” unless the person to whom it was addressed would pay letter postage, he was properly held liable in an action for trover. It was not a case calling for discretion in the discharge of his duties. The law, and not the instructions of a department, furnishes the guide to officers.
    The State court had jurisdiction to try the case. State courts had jurisdiction over all cases of trover, and the Constitution of the United States did not abrogate their jurisdiction in such cases as-'the present.
    This cast was brought up from the Supreme Court of the State of New York, by a writ of error, issued under the 25th section of the Judiciary Act.
    Teal, the plaintiff in error, was postmaster in Syracuse, in the State of New York, and the case arose in the following manner:
    The 13th section of the act of 1825 (4 Stat. at Large 105,) provided as follows: “ Any memorandum which shall be written on a newspaper, or other printed paper, pamphlet, or magazine, and transmitted- by mail, shall be charged with letter-postage.” And the 30th section of the same act (4 Stat. at Large, 111) provided as follows: “ If any person shall inclose or conceal a letter or other thing, or any memorandum in writing, in a newspaper, pamphlet, or magazine, or in' any package of newspapers, &c., &c., or make any writing or memorandum thereon, which he shall have delivered into any post-office, or to any person for that purpose, in order that the same may be carried by post free of letter-postage, he shall forfeit the sum of five dollars for every such offence, and the letter, newspaper, package, memorandum, or other thing shall not be delivered to the person to whom it is directed, until the amount of single letter-postage is páid for each article of which the package is composed.”
    The act of 1845, sections 1, 2, and 16, fixes the rates of postage upon letters and newspapers, and defines a newspaper to be “ a printed publication issued in numbers, consisting of not more than two sheets, and published at short intervals of not more than a month, conveying intelligence of passing events, and the bond fide extras and supplements of any such publication.”
    Ón the 4th of December, 1846, the Postmaster General issued the following circular:
    “ To Postmasters:

      “ I am directed by the Postmaster-General to call your special attention to the multiplied and increasing attempts to violate the laws and defraud the revenue, by writing on the wrappers, margin, or. other portion of newspapers, pamphlets,, and magazines, sent by mail.
    “ The cheap postage system has removed every reasonable excuse for violating or evading the law, and too much vigilance cannot be exercised by postmasters to detect and punish the offenders; and public sentiment, when well informed, will not fail to sustain you in the-faithful discharge of this duty, which is as imperative upon you as any other. That frauds of this kind' may be detected and traced to their origin, you -are particularly instructed to stamp, or mark in writing, any .transient (by which is meant all not regularly sent to subscribers) • newspapers, pamphlets, or magazines, with the name of the. office and the amount of postage.

      “ The wrappers of all such newspapers, pamphlets, and magazines, when they have reached their destination, should be carefully removed, and if upon inspection found to contain any manuscript or memorandum of any kind, either written or stamped, or by marks or signs made in any way, either upon any newspapers, printed circular, price-current, pamphlet, or magazine, or • the wrapper in which it is inclosed, by which information shall be asked for or communicated, except the name and address of the person to whom it is- directed, such newspaper, printed circular, price-current, pamphlet, or magazine, with the wrapper, in which it is inclosed, shall be charged with letter-postage by weight. If the person to whom the newspaper, printed circular, price-current, pamphlet, or magazine is directed, refuses to pay such letter-postage thereon, the postmaster will immediately transmit the same to the office from whence it was forwarded, and request the postmaster thereof to prosecute the’ same for the penalty of five dollars, as prescribed by the 30th section of the act of 1825. Suits may be brought either in district courts, or before State magistrates having civil jurisdiction in actions of debt, for this amount, under the respective State laws; the name of the sender written or stamped either upon the newspaper, printed circular, price-current, pamphlet, or magazine, or the wrapper in which it is inclosed, communicates such information, as subjects it to letter-postage, and the consequential penalties if such postage is not paid at’the place of its destination. The diminution of the revenue of the Department under the cheap postage system, and the great and increasing demand for additional mail facilities .throughout the country, whose territory now extends to the Pacific, renders it absolutely necessary, not only that every cent of lawful revenue be collected and accounted for, but that the utmost vigilance should be exercised for the prevention of fraud, and the sure and speedy infliction of the proper penalty upon the offender. This can only be accomplished by the strictest attention of postmasters, who are the sworn agents of the Department, and bound to see the laws faithfully administered.
    “ W. J. Brown,
    “ 2d Assistant Postmaster- General.

    “ Post Office Department, Dec’r 4,1846.”
    In February, 1847, there came to the post-office at Syracuse, a newspaper, called the Michigan Expositor, ■ which was put into the box of Mr. Hicks. There was an initial upon the wrapper of the -paper, distinct from the direction, and no part of it, the initial being a single letter. In consequence of this, it was' charged with letter-post; ge, which Mr. Hicks refused to pay, but tendered the newspaper postage. It was admitted that Mr, Hicks had authority to demand the paper for Mary C. Felton, to whom it was addressed, and that its value wag six cents.
    Hicks brought an action of trover against Teal, th'e postmaster, before a justice of the peace for Onondaga county, before whom the question of jurisdiction was raised. The justice, however, sustained his jurisdiction, and gaye judgment against the postmaster, (the cause being tried - by a jury) for six cents damages and two dollars and eighty-nine cents costs.
    A writ of certiorari removed the cause to the Court of Common Pleas, in and for the county of Onondaga, which, at May term, 1847, affirmed the judgment of the justice, with twenty-two dollars and ninety-five cents costs.
    Teal then carried the case to the Supreme Court of the State of New York, which, in June, 1848, approved the judgment of the Court of Common Pleas, with thirty-seven dollars and sixty cents additional costs, making, in the whole, sixty dollars .and fifty-five cents.
    This decision was reviewed by the Court of Appeals, who decided that there was no error in it; and gave judgment for seventy-five dollars and sixty-four cents, making, in the Whole, one hundred and thirty-six dollars and nineteen cents.
    A writ of error, sued, out by Teal, brought the case up to this court.
    It was argued by Mr. Dillage, for the plaintiff in error, and Mr. Seward, for the defendant in error.
    The points made by Dillage were the following:
    1. That the justice had no jurisdiction.
    1. Because the plaintiff in error acted under and by virtue of the statutory laws of the United States. Constitution U. S. art. 1, sect. 8; Circular of the P. M. Gen. 1845 ; 3 Laws United States by Story, 1990.

      2. Because, if the action complained of was a violation of duty, the right it violated never existed at common law, nor by virtue of State Constitutions or laws. 2 Hildreth’s History U. S. 181; 9 Anne, c. 9; 15 Encyclopædia Britannica, 424; 2 Hildreth’s History U. S. 327; 9th art. of the Confederation; 4 Elliot’s Deb. 354, 355; 3 Story’s Com. sect. 1124; 3 Story’s Laws U. S. 2066, sect. 3.
    3. Because the State courts possess no jurisdiction, but such as they derived from the common law; and under then own State constitution and laws. Constitution U. S. art. 3, sect. 1; Martin v. Hunter, 1 Wheat. R. 330; United States v. Lathrop, 17 Johns. R. 8; 3 Story’s Com. sect. 1749.
    4. Because such jurisdiction would not only be a usurpation of authority, but opposed to the policy of the’ general government. McCullock v. The State of Maryland, 4 Wheat. R. 316; Federalist, No. 80; Sturges v. Crowninshield, 4 Wheat. 122; Montesquieu, Esprit des Lois, liv. 11, c. 61; 1 Toullier, Droit Civil, c. 9, sect. 122. It would enable courts to adjudicate where the legislative authority could not act. United States v. Bevans, 3 Wheat, R. 336; United States v. Cornell, 2 Mason, R. 60; 3 Story’s Com. sect. 1752; Wayman v. Southard, 10 Wheat. R. 13.
    5. Jurisdiction is not acquired by State, courts, by reason of those "courts haying jurisdiction in the kind of action in which the suit is brought, if . the remedy depends upon a statute law peculiar to the United States general government. 17 Johns. R. 4; Gelston v. Hoyt, 3 Wheat. R. 246; United States v. Cornell, 2 Mason, R. 63; Slocum v. Mayberry, 2 Wheat. R. 1; Osborn v. The Bank of the United States, 9 Wheat. R. 747.
    6. Because the postmaster is alone subject to the control of the power which created him its instrument. McClung v. Silliman, 6 Wheat. R. 598.
    Finally. Because the. authority of the general government would hot be supreme, if. the courts of every State could vary and regulate its officers in the performance of their duties. Cohens v. Virginia, 6 Wheat. 264; Federalist, No. 80.
    II. The plaintiff in error, was an officer of the government, and required by law to exercise his judgment in the performance of the duty the law imposed upon him, in fixing the amount of postage on the paper for which this action was brought.
    Officers required by law to exercise their judgment are not answerable for mistakes of law, or mere errors of judgment. Drewe v. Colton, 1 East, R. 563 in note; Seaman v. Patten, 2 Caines, R. 312; Jenkins v. Waldron, 11 Johns. R. 114; Weaver v. Devendorf, 3 Denio, 117; Kendall v. Stokes, 3 How. 97; Opinions of the Attor. Gen. 1018, vol. 2.

      Mr. Seward, for defendant in error,
    made the following points:
    I. The justice had jurisdiction. Wilson v. Mackenzie, 7 Hill, R. 95. See also case, Opinion of Justice Gridley, 43-46; Bruen v. Ogden, 6 Halstead, 370, 377, 379, 381; Story on Agency, sect. 319, 319 a, 319 b, 320, 221, 322; Cowp. 754; 1 Kent’s Com. 386.
    II. The only -question in the case upon the merits was one of fact.; and the jury having found for the plaintiff in the court below, the court will not disturb the verdict. 18 Wend. R. 141; 1 Hill R. 61; 2 J. R. 378; 3 J. R. 435-439. See also Opinion of Justice Gridley'in the case, 46,. 53. See also the Opinion of Wright, judge, in the Court of Appeals, on the decision of this case, Teal v. Felton, 1 Comst. R. 537-549, and the authorities cited by the judge.
   Mr. Justice WAYNE

delivered the opinion of the court.

. This suit was brought in a justices’ court to recover from the plaintiff in error the value of a newspaper, received by him as postmaster at Syracuse, which he refused to deliver to the defendant in error to whom it was addressed. The plaintiff in error had charged the newspaper with letter-postage, on account of a letter or initial upon the wráppér of it, distinct from the-direction. This the defendant refused to pay, at the same time tendering the. lawful postage of a newspaper. The postmaster would not receive it, and retained the paper against the will of the defendant; upon that' demand and refusal the suit was brought. The actiori was trover, and the general issue was pleaded. In the course of the trial when the defendant in error, who was plaintiff in. the suit below, was introducing testimony in support of his case, the’ defendant objected to a further examination of the case by witnesses, upon the ground that the court had not jurisdiction of the case. The objection having been overruled, the trial of the case was continued; and after the plaintiff had proved that he demanded from the defendant the-newspaper, tendering the lawful postage, and that the postmas-' ter refused to deliver it to him, he rested his- cáse.

The defendant below then moved for a nonsuit, which having been denied, he offered in evidence a circular from the Post-Office Department of the 4th December, 1846, marked in the record as A,-and also the Post-Office act of 1845. The case wa,4 submitted to a jury. A verdict was rendered by it against the' defendant, upon which a judgment was entered. The defendant carried the case to the Court of Appeals, and the judgment of the lower court was affirmed. It is brought to this court by a writ of error. As the Corn-t of Appeals could not have adjudicated the ease without having denied to the defendant a ,defence which he claimed- under a law of the United States, the case is properly here under the 35th section of the Judiciary Act of 1789.

The circular from the Post-Office Department is as follows : “ The wrappers of all such newspapers, pamphlets and magazines, when they "have reached their destination, should be care-. fully removed; and if upon inspection they are found to contain any manuscript or memorandum of any kind, either written 'or stamped, or by marks or signs made in any way, either, upon any newspaper, &c.,.&c., or the wrapper upon which it is inclosed, by which information shall be asked or communicated, except the name of the person to whom it is directed, such newspaper, . &c., &c., with, the wrapper in which it is inclosed shall be charged with letter-postage by weight.”

If the person to whom the newspaper is directed, refuses to pay the letter-postage, the postmaster is directed to transmit the same to the office whence it came, with a request that the person who sent it may be prosecuted for the penalty of five dollars, according to the 30th section of the act of 1825. Those parts of the 30th section mentioned, upon which the circular was issued, and of the 13th section of the act directing that a memorandum which shall bo written on a newspaper, shall be charged with letter-postage are : “ If any person shall inclose or QQnceal a letter or other thing, or any memorandum in writing in a newspaper, pamphlet or magazine, or in any package of newspapers, &c., &c.', or make any writing or memorandum thereon, which he shall have delivered in ariy post-office or to any person for that, purpose, in order that the same may be carried by post, free of letter-postage, he shall forfeit the sum of five dollars for every Such offence, and the letter, newspaper, package, memorandum or other thing, shall not be delivered to the person to whom it is directed until the amount of single letter-postage is paid for each article of which the package is composed. That part of the 13.th section of the act mentioned is : “ Any memorandum which shall be written on a newspaper or other printed paper, pamphlet or magazine, and transmitted by mail, shall be charged with letter-postage.” 4 Laws of the United States, 105-111. Those parts of the law of 1845, in any way applicable to this case, .are the 1st and 2d sections fixing the rates of postage upon letters and newspapers, and the 16th section, which defines a newspaper to be a printed publication issued in numbers, consisting of not more than two. sheets, and published- at short intervals of not more than a month, conveying intelligence of passing events, and the bond fide extras and supplements of any such publication. ' 5 U. S. L. 732,737.

From the' evidence in this case, we do not think that the initial or letter upon the wrapper of the newspaper in this case, subjected it either under the 13th or 30th section of the act of-1825 to letter-postage. Why it was placed there, supposing it not to havebeen accidental, cannot be found out from this record, and if must have been a meaningless mark to the postmaster. It may have excited a suspicion, that it was a sign arranged between the person sending it and the person to whom it was directed, to convey information of some sort or other, for which letter-postage would have been charged, if it had been conveyed in words. The act forbids a memorandum in the 13th section; and in the 30th, providing for a penalty, the terms are, “any writing or memorandum;” but in neither are found, the terms “marks or- signs,” as used in the circular. No provision is made for such a .case. It must be obvious too, that frauds of that kind eannot be prevented in the transmission of newspapers, without legislation by Gongress, subjecting newspapers conveyed by mail to letter-postage, whenever there shall be,'either upon the news-' -paper or the wrapper of it, any letter, sign, or mark, besides the address of the person to whom it is sent. A single letter or initial upon the wrapper of a newspaper, is neither a memorandum nor a writing in the sense in which either of those terms are ordinarily used, or as we think they were intended to be used in the 30th section of the act. Both mean something in words to convey intelligence, a remerábrance for one’s self or to another. The act speaks of something concealed in a newspaper or package of newspapers, of a writing or memorandum, from which it may be seen to have been the intention pf the sender. to convéy .information clandestinely under the'wrapper, or upon it in a form, though not disclosing what it is, which will leave no doubt of his intention. The initial'm this case does not seem to have been one or' the other It is not a memorandum certainly, and a single letter of the alphabet can convey no other idea than that it belongs to it, unless it is .used numerically. This was -not a case in which judgment couL - be used to determine any fact, except by some other evidence than the letter itself. Nor was it one calling for. discretion in the legal acceptation of that term in respect to officers who are called upon to discharge public duties. What was done by the, postmaster, was a mere act of his own, and ministerial, as that is understood to be, distinct from judicial. It could not have been the intention of Congress to put it in the power of postmasters, upon a mere suspicion raised by a single letter or initial, to arrest the transmission of newspapers from the presses issuing them, or when they were mailed by private hands.

• This view of the law, disposes also of that point in the argument, claiming for the postmaster an- exemption from the suit-of- the plaintiff, upon the ground that he was called upon, in the act which he did,' to exercise discretion and judgment. In Kendale v. Stokes, 3 How. 97, 98, will be found this court’s exposition upon that subject, with the leading authorities ’ in support of it. The -lifference between the two, must at all times be determined by the law under which an officer is called upon to act, and by the character of the act. It is the law which gives the justification, and nothing less than the law can give irresponsibility to the officer, although he may be acting in good faith under the instructions of his superior of the department to which he belongs. Here the instructions expeed the law, as marks and signs of themselves, without some knowledge of their meaning, and the intention in the use of them, are, as we have said, , neither memoranda nor writings. Tracy v. Swartwout, 10 Pet. 80.

But it is said that the courts of New York had not jurisdiction to try the case. The objection may be better answered by reference to the laws of the United States, in respect to the services to be rendered in the transmission of letters and newspapers by mail, and by the Constitution‘of the United States, than it can by any general reasoning upon the concurrent .civil jurisdiction of the courts of the United States, and the courts of the States, or concerning the exclusive jurisdiction given by the Constitution to the former.

The United States undertakes, at fixed rates of postage, to convey letters and newspapers for those to whom they are directed, and the postage may be prepaid by the sender, or be paid when either reach their destination, by the person to whom they are addressed. When tendered by the latter or by his agent, he has the right to the immediate possession of them, though he has not had before the actual possession. If then they be wrongfully withheld- for a charge of unlawful postage, it is a conversion for which suit may be brought. His right to sue existing, he may sue in any court having civil jurisdiction of such a case, unless for some cause the suit brought is an exception to the general jurisdiction of the court. Now the courts in New York- having jurisdiction in trover, the case in hand can only be excepted from it by such a case as this having been made one of exclusive jurisdiction in the courts of the United States, by the Constitution of the United. States. That such is not the case, we cannot express our view better than Mr. Justice Wright has done in Ms opinion in this case in the Court of Appeals. After citing the 2d section of the 3d article of the Constitution, he adds, “ this is a mere grant of jurisdiction to the federal courts, and limits the extent of their power, but without words of exclusion or any attempt to oust the State courts of concurrent jurisdiction -in any of the specified cases in which concurrent jurisdiction existed prior to the adoption of the Constitution. The apparent object was not to curtail the powers of the State courts, but to define the limits of those granted to the federal judiciary.” We will add, that- the legislation of Congress, immediately after the Constitfition was carried into operation, confirms the conclusion of the learned judge. We find, in the 25th section of the Judiciary Act of 1789, under which this case is before us, that such a concurrent jurisdiction in the courts of the States and of the United States was contemplated, for its first provision is for a review of cases adjudicated in the former, “ where is drawn in question, the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity.” "We are satisfied that there was no error in the decision of the Court of Appeals in this case, and the same is affirmed by this court.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the State of New York, and was- argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the Court of Appeals of the said State of New York in this cause, and as remitted to the said Supreme Court be, and the same is hereby affirmed, with costs.