author: Mr. Chief Justice Taney

text:
    William H. Williams, Plaintiff in error, v. James Ash, Defendant in error.
    Mrs. T. Greenfield, of Prince George’s county, Maryland, bequeathed to' her nephew, Gerard T. Greenfield, certain slaves, with a proviso in her will, “ that he shall not carry them out of the state of Maryland, or self them to any one; in either of which events, I will and desire the said, negrdes' shall be free for life.” After the decease of the testator, in 1839, G.- T. Greenfield sold one of the slaves, and a petition for freedom was thereupon filed in the Circuit Court of Washington county. The legatee continued to reside ill Prince George’s county, for two years after the decease of the testatrix, during which time the appellee was sold by him, and he afterwards removed to the state of Tennessee, where he had resided before the death of the testatrix. The Circuit Court instructed the jury, that by the sale, the petitioner became free. Held, that the instructions of the Circuit Court were correct.
    A bequest of freedom to a slave, under the laws of Maryland, stands on the same principles with a bequest over to a.third person. A bequest of freedom to a slave is a specific legacy.
    The bequest of the te. tatrix of the slave to her nephew, under .the restrictions, imposed by the will, was not'a restraint or alienation inconsistent with the right to the property bequeathed to the legatee. It was a conditional limitation of freedom, and.took effect the moment the negro was'sold.
    Note. — The report of this case was accidentally omitted by the late reporter,. and’this report has been furnished by him.
    In error to the Circuit Court of the United States for the county of Washington, District of Columbia.

      In the Circuit Court of the county of Washington, James Ash, a negro, presented a petition, stating that he was entitled to- his freedom, and that he is held in custody and confined in the private jail of William H. Williams. He prayed- a subpoena to James H. Williams, and that he may have , a fair trial on his petition.
    Mr.. Williams appeared to the subpoena, and denied, the title of the petitioner to his freedom.
    Issue was joined on the pleadings,-and the jury found a verdict for the petitioner, and that he was free and. discharged from-the service of Williams.
    To the opinion of the court on the trial, a bill of exceptions ' was tendered by the counsel for Mr. Williams. The bill of exceptions stated, that on the trial the defendant produced, and gave in evidence to the jury, the last will and testament of Maria Ann T. Greenfield; and it was admitted that the said testatrix died at the county of Prince George’s, in the state of Maryland, soon after the date of said will, in the year 1824; that upon her death, Gerard T. Greenfield, the executor named in, the will, duly proved the same in the Orphans’ Court of said county, where the slaves and property left by the testatrix were, and took letters testamentary as such executor.
    The petitioner is one of the slaves named and'demised in that clause of the will, which' is in the words following, to wit:
    “ I also give and bequeath to my nephew, Gerard T. Greenfield, all my negro slaves, namely: Ben, Mason, James. Ash, Henry, George, Lewis,. Rebeeca, Kitty, Sophia, Mary Elizabeth, Nathaniel and Maria; also, Tony, Billy, Betty, and Anne, provided he shall not carry them out of the state of Maryland, or sell them to any one; in either of which events, I will and desire the said negroes to be free for life.”
    The petitioner was a slave born, and the property of the testatrix at the time of her death; that the said G. T. Greenfield, upon the death of said testatrix, took possession of the petitioner and the other slaves devised to him, and held the same' as his slaves so devised to him, from that time till the 18th day of December last, when, before the institution of this suit he sold the petitioner to the defendant: that G. T. Greenfield at the time of the date of said will, arid ever since, resided in the state of Tennessee, with an interval of between two and three,years, that he sojourned.after the death of the testatrix, in Prince George’s county, for the purpose of settling his businéss. Thereupon the court Was-of opinion, and instructed the jury, that by the fact of such sale of the petitioner the estate or property in the petitioner so .devised to said G. T. Greenfield ceased and determined; and the petitioner thereupon became entitled to freedom as claimed in his said petition: to which opinion and instruction of the court, the defendant by his counsel excepted.
    Judgment was rendered for the plaintiff, and the defendant prosecuted this writ of error.

      Marbury,\ for the plaintiff in error.

      Bradley, for the defendant.
    ' Marbury contended,
    that as to the first question presented on the bill of exceptions, whether .Mr. Greenfield took an absolute estate, by the terms of the will, in the .property bequeathed ■to him. A devise Of personal estate in general terms, without words.of limitation, vests in the legatee the absolute property,in the thing -bequeathed. If a testator says, “ I give all my personal estate-to A. B.,” without other words, A. B. will take the absolute estate in all the personal property of which the testator may die possessed.
    The language of the will,-, in the case before the court, is as general, comprehensive, and effective, for the purpose of passing* the whole estate, as language can be; and gives to the legatee the whole estate, subject only to the restriction of the right of alienation.
    There is here no' limitation of the estate — no intention expressed to confine the legatee to an estate for life in the slaves, or to give him a mere personal benefit by the bequest.
    Admitting the validity of the restriction, if he'should neither remove the negroes or sell them, at his death they will go to his representatives, to be distributed among his next of kin, if he should die intestate; and to his legatee, if he should make a testamentary bequest.
    It has been suggested that this very restriction will operate to limit the legatee to an estate for life; that it shows that it was not intended he should have the absolute power and control over the negroes. But a restriction on the right to sell never has been construed into a limitation of the estate of the devisee, when the language of the will passed the fee.
    The proviso is a restriction on the right of alienation. The property is given to the legatee absolutely, with a condition annexed', that he shall not'sell; a condition which is repugnant to the nature of the estate, and therefore void. Co. Lit. 206 b, 223 a.
    If there be a limitation over, on the breach of such condition, it does not alter the case. The condition itself being void, the estate limited upon it must be void also.
    What is a conditional limitation, but an estate which is to vest On a certain condition, or the happening of a certain event, by which a preceding estate is to be divested ? If, then, the condition on which the preceding estate is to be divested, be unlawful and repugnant, and therefore void, the preceding estate cannot be divested; can a man be deprived of his estate by refusing to do an unlawful thing, or by doing that which the law' authorizes him to do with his own ? Bradley v. Peixoto, 3 Vesey, 324; 2 Caines’s Reports, 348.
    It will tfe contended, on the part of the' defendant in error, that there is something in the nature of the. property which is the subject of this devise, that requires the application of a rule of law different from that which would be applied to a case arising on the title or ownership to any other kind of .property.
    Negroes, by the laws of Maryland^ are property precisely as money in the funds, or household effects. The jus disponendi in the master is as absolute in the one case as in the other. How shall the court decide in favour of the freedom of the slave, without at the same time, and in the same judgment, deciding the right of property, as claimed? Mima Queen v. Hepburn, 7 Cranch, 295.
    If, on the breach of the condition not to sell, the testatrix had given the property in' the negroes to a third person, the limita-' tion over would have' been declared- void; because such a restriction would be on a condition repugnant and void.
    But here is a bequest of freedom, on the same repugnant conclusion. How is it to take effect, without denying to .the master that control over the negroes which he is by law entitled to exercise over them, and which he might exercise over any other property in like circumstances, without subjecting himself to a forfeiture.
    There is a class of cases in which it has been held that a testator may restrain the alienation of the interest given by the will, and limit the estate over in the case of alienation, whether voluntary or involuntary. This class of cases originated in the case of Dommett v. Bedford, 3 Vesey, 149. The principle of this case has become a general rule of law, in the following cases: 13 Vesey, 404, 429; 3 Swanston, 505; 5 Mod. 515; 6 Maddox, 482.
    In this class of cases, the estate is vested in trustees; and it is provided that the interest or income shall be received by. the trustees, and a certain .portion thereof be paid- at- certain periods to the legatees, unless they become bankrupts, or make voluntary assignments of the amounts respectively settled in said cases; whereupon, in each case, the annuity is to cease, and the estate is devised over. Such bequests are held to be short of a life-estate, and to be intended for the mere, personal benefit of the legatee.
    The casés belonging to this class differ materially from that under consideration. In them the title to the estate is in trustees; in the legatee of the annuity, there is nothing but a right to receive payment of a sum of money, until the happening of a given event — his becoming bankrupt, or voluntarily parting with the right to receive it. The annuitant takes only a life-estate— the gift was merely for his personal benefit.
    By the.will in this case the legatee took; to himself the absolute property in the negroes bequeathed. The enjoyment of • them is not limited to ■ a mere personal benefit. The property does not cease at his death, but will pass to his representatives, to be disposed of, or distributed according to law.

      Bradley, for the defendant.
    This is a will. The intention of the testatrix to be gathered from all the' parts of the will, is to be effected, if it can be, without-contravening some settled principle of law. Smith v. Bell, Peters, 75, and the cases cited.
    What estate did Gerard take ? What effect had the exporta - tion and sale ?
    There ¿re two bequests, one of property in the slaves, to Gerard, supposed to be absolute; another of freedom .to the slaves, upon the happening of either of two events, defeating the first devise, and therefore limiting it. If these events are repugnant to the devise to Gerard, does that prevent their happening? If they happen,-must they not give rise to the devise over?
    The intent of the testatrix is clear. She meant to give Gerard a qualified, not an absolute estate, and to limit it to the happen- ' ing of the event- she has prescribed.
    The bequest of freedom is -not a condition annexed to the estate of Gerard; it is a conditional limitation of that estate, contingent- until the event occurs, but becoming absolute-so soon as that, has happened. Preston on Est’s., 40; Fearn. on Remain. 11, H, 16.
    It might be void as a bare condition, as to Gerard; yet good as a limitation, as to the slaves.
    She meant to give to the slaves a higher and nobler bequest. What is it? Property? The same interest she had given to Gerard? The same estate or power? If so, how is it to be estimated ? By what law to be controlled ?
    Freedom is not to be valued. Lee v. Lee, 8 Peters, 48. A question of freedom is superior to any question of property. Allen v. Wallingsford, 10 Peters, 583. It is a question deserving the favour of courts. Fenwick v. Chapman, 9 Peters, 476. Isaacs v. Randolph’s Executors, 6 Rand. 652.
    In construing the will, we must look to the subject-matter of both devises. The first relates to property, the second to freedom, and yet both relate to the same subject.. And what is it? Is it merely property? They are slaves; but they are human beings. They may acquire freedom by implication. Mullen v. Hall, 5 Harris and Johns. 190; Legrand v. Darnell, 2 Peters, 664. They ate recognised as persons in the Constitution of the United States, art. 1, sect. 9, par. 1; sect. 2, part 3; art. 4, sect. 2, par. 3. ■ They are so'recognised by courts of justice. The law of common carriers does not apply to them. Boyce v. Anderson, 2 Peters, 155. Humanity forbids the separation of mothers from infant children, and the court will not sanction it. Fitzhugh and wife v. Foote and others, 3 Call. 13.
    If, then, the character of the bequest over be different from that given to Gerard — superior to property — not to be valued-deserving the favour of the courts, of a wholly different nature; and the intent of the testatrix in regard to this bequest over be clear, shall that intent be defeated by rules adopted solely for the regulation of property ? Is there any precedent controlling this court ?
    It is conceded she might have given to Gerard a life-estate, and freedom to the slaves upon his death. - She could then certainly have granted a less estate, and have made this to depend upon a certain or uncertain event. . Then it is' immaterial how this event is brought about, by the act of Gerard, or operation of law.
    She might have given a life-estate in the usufruct, to be terminated by his aliening during his life, and remainder to the slaves. Dommett v. Bedford, 6. T. R. 684; Brandon v. Robinson, 18 Vesey, 429; Yarnold v. Morehouse, 1 Russ, and Mylne, 364; Legget v. Lear, 2 Sim. 479 ; 4 Russ, and Mylne, 690.
    Did she intend to give Gerard during his life any thing .more than the usufruct ?
    If she has so expressed herself, that this restraint upon alienation amounts to a limitation of the previous estate, and'there .is a devise over, it is not necessarily so repugnant as to be void, but may be carried into effect. Wilkinson v. Wilkinson, 3 Swan. 515; Coop. C. C. 259; 2 Wils. C. C. 47.
    She has so expressed herself, and it was her clear intent. Besides, upon this question of intent, we must look to the relation of the parties. The first taker is her nephew. She meant to aid him,.but it must be in her own manner, by his taking a qualified estate to be held in Maryland. The others are her slaves, grown up around her, to whom she is attached — for whom, she intends, as far as possible, to provide protection. She knows the' laws, climate, customs under which ■ they have been protected, and grown — she does not know whither they may be carried. She leaves them to the charge of this nephew, submodo, qualifying and restraining his power over them. There is a. great primary intent pervading the- whole will, ah intent controlling thé rights conferred on Gerard, and that is the protection and preservation of these objects of her. bounty, in what she thinks the best condition for them. Is this intent opposed by any settled principle of law ?

      It is said the law in regard to slaves, and the rules of evidence in cases of freedom.are the same as in all cases of personal property, and the case of Mima Queen, 7 Cranch, 290, is relied on as sustaining this position. We deny.it. The whole point of that case is as to the admissibility of hearsay evidence to prove a specific fact. We agree that the rules of evidence are and must be the samé, and we invoke the aid of that principle. We apply -it to ascertain the intent of the testatrix.
    But are the laws of personal property applicable? Upon what principle? Upon what adjudicated case? What laws? Shall we go to England? To her system of villanage, as it once existed, in the only part of her political or judicial frame which was ever supposed to bear the least analogy to this. Trace out the analogies and see-how few they are. In'what do they resemble each other? -Even under that condition, such a.case as this could never have arisen. We can get no aid from her jurisprudence.
    Shall we go to the laws of the.several states? Our search would be equally vain here. The right which is held in a slave is so modified by statutory provisions, by local causes,.by custom, by the common law, by the social condition, and by the local.arid political position of each state, that we. can derive no important aid from them. It is emphatically a subject of peculiar regulation.' But wherever we do fin<f the-right-to manumit, we find this cardinal point, that suits for freedom are to be favoured, pervading and controlling the judicial decisions.
    The laws of personal property are not applicable.
    Colour, in a slaveholding state is' a badge of slavery. It is not so where slavery does not exist.. Accompanied by possession in the former state, it is evidence of title. An adverse possession of a slave for a period corresponding with the statute of limitations gives title in a slave. Hardeson v. Hays, 4 Yerg. 507; Partee v. Badget, 4,Yerg. 174; Brent v. Chapman, 5 Cranch, 358; Shelby v. Guy; 11 Wheat. 361; Garth’s Executors v. Barksdale, 5 Munf. 101; Carter v. Carter, 5 Munf. 108; Newby v. Blakey, 3 Hen. and Mun. 57; Smart v. Baugh, 3 J. J. Marsh. 363.
    But no.length of possession, however open,.notorious, and absolute, can prevail against a claim of freedom, where the claimant can trace back his descent from a free máternal ancestor. Rawlings v. Boston, 3 Harris and McHen. 139; or if he can show an acquired right to freedom, perfected in himself. Hunter v. Futener, 1 Leigh, 172, and cases cited. Burke v. Negro Joe, 6 Gill and Johns. 136.

    By statutory provisions in Maryland, they are regarded as responsible and intellectual beings, as “ persons” capable of contracting. In some cases they are entitled to trial by jury. Maryland Act, 1751, ch. 14, sect. 4. They may contract. 1715, ch. 44, sect. 11. They may discharge the very responsible office of pilots. 1788, ch. 33.
    If, then, the laws of personal property apply, to what extent do they so apply ? .
    Considered merely as personal property, they are subject to all the laws regulating that species of property; they may be the subject of con tract,j>ass by gift or will, descend,or be taken in execution. Their gains belong to their owner; they can make no contract with third parties, without the owner’s assent, and none with their owner, and the issue of the woman is part of the use, the property of the person to whom the mother belongs, for 'the time being.' 1 Har. and McH. 160, 352; 1 Har. and Johns. 526; 6 Har. and Johns. 16, 526.
    Considered as human beings capable of acquiring, under the laws, rights paramount to all individual claims, and tó be controlled only by the sovereign in the state, from the exercise of which they have been rightfully debarred by law, they acquire a higher dignity;
    In their former character they are to be considered as property. ■ But here the very question is, are they property ? To determine this, shall we assume that the laws of property apply, and by those laws determine their character, and a right immeasurably above them ? Can property take property ? Can a map be indicted for 'murder of property? Can property be entitled to a trial by jury, or commit a crime, or acquire a right ? Yet all this may be done by a negro; and they all imply a reasoning faculty, a conscience, an immortal spirit, in which there can be no property.
    We must look to the laws of Maryland. The statutes there give thém power to take freedom by devise, to take effect immediately, or at a remote period, after a term of years or a life-estate. Act 1796 and 1809. The decisions of the courts of Maryland are in favour of this capacity. The statutes direct two modes, of emancipation; by will o.r deed. The courts have extended it to implied manumission, as in Dolly Mullens case, and to adverse possession-or length of time, as in Negro Joe v. Burke.
    Where, then, the intént of the testator clearly appears .to secure to -them liberty on the happening of an event, which has happened ; or where a doubtful form of expression is used, which, in regard to mere personal property, mignt amount to a condition repugnant to the bequest, and thus be void, yet in favour of liberty, and having- a regard to the subject of the bequest and the right intended to be conferred, the court will construe the will according to the intent, and take this to be. a .limitation of the estate.
    Again. The intent of the testatrix is to give freedom to the slaves, unless they can be held in Maryland upon the terms she has herself declared. Now if they cannot be so held in slavery, what is to be the effect ? They are free.
    Again, It has been said that restraint upon alienation is void , Yet in an executory devise this restraint-exists, and has never been disputed. Moffat v. Strong, 10 Johns. 12, Cordle v. Cordle, 6 Munf. 455.
    But, it is said, If the devise of freedom is to depend upon the happening of the event mentioned in the will, the first estate must-vest, and'then the condition is Void. Not so. It does not necessarily follow. Stainham and Bell, Lofft. 455; Avelyn v. Ward, 1 Ves. sen. 420; in which-last case the court says, if by any means the conditional limitation is removed, the devise over will take effect. See also Simpson v. Vickers, 14 Ves. 341, and particularly Doe ex dem. Smith, v. Hance, 6 Halsted, 244, 252— 254.
    Suppose the estate of Gerard to have vested. . What was its extent and limitation ? It was not intended to be absolute. The power to give or prevent freedom was not devised to him. That was already -exercised. He had a qualified property. Slavery is the property which one man has in the labour of another,-and the, right to the custody and such limited use of the person of that other, as the particular laws allow. The .power of the, master is subordinate to the law of the land, and in some cases he is allowed' by that law to. give freedom in Maryland in presentí or infuturo. If the master once exercises this authority, it is irrevocable, the subject of' it can never be reduced again to the condition of a slave, unless by legislative provision.
    Now if any right in, or power over a thing granted be reserved to the grantor, or devised to a third person, the person taking has but a qualified or limited estate, it is not absolute. ■ The grantor or devisor may annex to this qualified or limited estate, conditions by which it may be terminated at a period short of that to which it would otherwise run. The effect must be to give rise, in case of a devise over to the new estate, if there be one devised, or the property must revert. It cannot be that the tenant of the particular estate shall have the power to defeat the other and usurp the whole property to himself. ' Is not this the case here ?
    Without the proviso, the words'are as absolute as in the case of Smith v. Bell, 6 Peters, 74. But the proviso must operate to restrain the general words in the same manner as the devise over of the remainder in that case. She could grant a life-estate, with freedom to take effect at its expiration, the life-estate to be forfeited upon the happening of an event, and the devise over to: take effect. A fortiori she might make this lifé-estate to depend upon his keeping them in his own possession and in the state of Maryland. The uncertainty of the event can make no difference. ' It has happened. The happening of the event is during a single life, and, therefore, not too remote. We maintain, iheri, that this is not a naked condition annexed to an absolute estate and repugnant to it, and therefore void, but is a contingent limitation of a particular estate, with a devise over of a faculty or estate of the highest dignity and most absolute character, to take effect on the happening of a contingent event by which the particular estate. was to be terminated, which event must occur during the lifetime of a person in being, and the event has happened. As to the distinction between a naked condition, and. a conditional limitation, see Taylor v. Mason, 9 Wheat. 329, &c„ and particularly Smith v. Hance, 6 Halsted, 244; et seq.

    But, is a condition in restraint of alienation necessarily void ? and are there not cases where it amounts to a limitation ?' The true distinction is, that where such a condition amounts to a limitation' of the precedent particular estate, with a devise over, it is good. Doe d. Duke Norfolk v. Hawke, 2 East, 481; and Wilkinson v. Wilkinson, 3 Swans. 515.

      The reason of the rule, is obvious, it is to prevent perpetuities, and therefore the jus disponendi in an absolute estate is not to be taken away, but even this may be qualified. Litt. sec. 361; Shep. Touch. 129; Gill v. Pearson, 6 East, 173; S. C. 2 Smith, 295. This last case is a clear case of a fee simple, with a condition- terminating it. If the power of disposal is not'absolutely taken away, the condition restraining it may be good. Jackson v. Shutz, 18 Johns. 175, and cases cited; McWilliams v. Nisby, 2 Serg. and Rawle, 507. Here he might at any time have disposed of his interest to the slaves themselves, by releasing it.
    The case of Bradley v. Piexoto, as stated in the report, does not warrant the exposition of it in the opinion of the Master of the Rolls. We do .not controvert his law, for if the gift was absolute of both principal and dividends, that case cannot illustrate this. If it 'was not absolute, the case is wholly inconsistent with Wilkinson v. Wilkinson; Branden v. Robinson; Dommett v. Bedford ; Legget v. Lear, &c. already cited, and particularly Bird v. Hudson, 3 Swans. 342.
    We are considering.a will. The intent is to govern. Every intent is to be effected if possible. ■ The primary intent is to prevail. The particular intent was to give the nephew a qualified estate. The primary intent was to afford protection and security to the slaves. The restraint upon the nephew does not take away all power of alienation. The execution of every intent does not contravene any settled principle of law. The event to determine the estate of the first taker is not too remote.
    Besides it is a case in favour of liberty, to be attained by the instruments, and in the mode pointed out by the statutes, a case involving one interest of the highest dignity, and depending on the happening, of an event to terminate another interest of less . importance.
   Mr. Chief Justice Taney

delivered the opinion of the court.

This case is brought here by writ of error, from the Circuit Court of the District of Columbia, for Washington county, and came.before that court upon a petition for freedom.

It appeared on the trial, that the petitioner was the property of Mary Ann T. Greenfield, of Prince George’s county, in the state.of Maryland, who died in 1824, having first duly made her last will and testament, whereby among .other -things she bequeathed(the petitioner, with sundry other slaves, to her nephew, Gerard T. Greenfield, with a proviso in the following words: “ Provided he shall not carry them out of the, state of Maryland, or sell them to any one; in either of, which events I will and devise, the said negroes to he free for life,” and she appointed her said nephew her executor.

Upon the death of the testatrix, Gerard T. Greenfield took possession of the petitioner and the other, slaves bequeathed to him, and held them from that time until December, 1839, when he sold the petitioner to the defendant; and the petition for freedom was filed shortly after the sale. At the time of the making of the will, and ever since, Gerard T. Greenfield resided in the state of Tennessee; with an interval of between two and three years, during which he sojourned in Prince George’s county, after the death of the testatrix, for the purpose of settling his business.

Upon this evidence, the Circuit Court instructed the jury, that by the fact of such sale of the petitioner, the' estate or property in the petitioner so bequeathed to Greenfield, ceased and determined, and he therefore became entitled to his freedom.

Under this direction of the court, the verdict was in favour of the petitioner.

. By the laws of Maryland, as they stood at the date, of this will, and at the time of the death' of the testatrix, any person might, by deed, or last will and testament, declare-his slave to be free after any given period of service, or at. any particular age, or upon the performance of any condition, or on the event of any contingency.

This right is recognised in the act of Assembly, of 1809, ch. 171.

The contingency upon which the petitioner' was to become free must, by the terms of the will, have happened in the lifetime of Gerard T. Greenfield; and if he had died without selling him, or conveying’him out of the state of Maryland, the petitioner would have continued a slave for life. The event,.therefore, upon which he was to become free was not too remote.

It is said, however, that this was a restraint on alienation inconsistent with the right of property bequeathed by the will. But if, instead of-giving freedom to the slave, he had been- bequeathed to some third person, in the event of his being sold, or removed out of the estate by the first taker, it is evident upon common law principles, that the limitation over would have been good. 2 East, 481. Now .a 'bequest of freedom to the slave stands upon the same principles with -a bequest over to a third person. I-t is said by the chancellor of Maryland, 2 Bland’s Chancery Rep. 314, that the bequest of freedom to a slave is a specific legacy, and undoubtedly: this is its true legal character.

And if a bequest' over' to a third person would not be regarded as an unlawful restraint upon alienation, there can be no reason for applying a different rule where- the bequest over is freedom to the slave. In the one case, the restriction on alienation ceases as soon as the devise over takes effect; and in the other, the right of property ceases upon the happening of the contingency, and there is nothing to alien.

We think that the bequest in the will was a conditional limitation of freedom to the petitioner, and that it took effect the moment he was sold. The judgment of the Circuit Court must therefore be affirmed.


source: Caselaw Access Project

author: Mr. Justice Daniel

license: Public Domain

text:
      George W. Hammond, Administrator de bonis non of Thomas Hammond, deceased, and others, Appellants, v. Lorenzo Lewis, Executor of Lawrence Lewis, deceased, who was the Acting Executor of Gen. George Washington, Appellee.
    In. the distribution of the estate of'a deceased, person, an assignment, to one of . the.distributees, of a-mortgage which is for a'greater sum than his distributive share, does not make' him responsible to the executors for the difference between his share and the nominal amount of the mortgage, in case the mortgaged premises sell for less than the amount of his share, where the distributee has, with proper diligence, and in good faith, subjected the mortgaged property to sale, and has not bound himself absolutely for the nominal suip .secured, by the mortgage.

      This was an appeal from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria.
    The facts in the case were these.
    General Washington, by his will, executed in 1799, devised all the rest and residue of his estate, real and personal, not before disposed of by said will, to be sold by his executors) at such time,in such manner, and on such credits, (if an equal, valid, and satisfactory distribution of the specific property could not be made without,) as- in their judgment should be most conducive to the interest of the parties concerned; and the moneys arising therefrom to be divided into twenty-three equal parts.
    On the 19th of July, 1802, the executors assembled the legatees, with a view to consult them upon certain questions arising under the will; and it was agreed that a certain portion of the personal estate should be sold, another portion divided, a certain portion-of the lands divided, and the residue sold by the executors.
    On the 6th of June, 1803, a meeting of the devisees was held, at which it .was agreed that certain lands, lying on the eastern waters, should be sold, and, if purchased by the devisees, such purchaser should pay at three equal annual instalments with six per cent., interest from ■ the day of sale, but to bé credited with his proportion of the sales which had there been made, and which Were to be divided among the said devisees.
    On the 7th of June, IS03, Burdett Ashton, who was entitled, in his own right, and that of his sister, to two-thirds of a distributive share, purchased from the executors property belonging to -the estate, for the sum of $9410' 20 cents; payable, one-third on demand, one-third on the 7th of June, 1805, and one-third on the 7th of. June, 1806.
    On the 12th of March, 1805, Ashton- mortgaged to the executors three tracts of latid in Jefferson county, Virginia, amounting in the whole to one thousand and seventy-six acres, to secure the payment of the purchase which he had made, as above stated.
    On.the 11th of March, 1806, the executors assigned the mortgage, to Thomas Hammond, who was entitled to a full distributive share in right of his wife, and attached to the assignment the following memorandum. “The executors are not to be made personally liable, in any respect, or . on any pretence, wherein, for, or by reason of the above assignment, and further, the within named Burdett Ashton, Jr., his bens, executors and administrators, is to have credit for his proportion of $5179 5 cents, being the share of each legatee of said George Washington, of certain sales of real and personal estate made by the said executors, as .well as for the proportion of the sister of the said Burdett, as her attorney in fact.”
    As it was thought that the distributive shares of the said Ash-ton and Hammond, when added together, would not quite exhaust the debt due from Ashton to the executors, the latter took from Hammond, on the same day on which they made the assignment, a deed-by way of mortgage, in which it was stipulated that Hammond should indemnify the executors, and also should pay to the executors whatever surplus might remain, after deducting Hammond’s and- Ashton’s distributive shares from the amount of Ashton’s debt to the executors.
    On the 2d of April, 1806, Hammond, being indebted to Smith, Calhoun & Co., of the city of Baltimore, in the sum of $5604 64 qenis, assigned to them all his right to so much of the mortgaged premises as would be sufficient to satisfy the sum aforesaid. As speedily as-possible, Smith, Calhoun & Co., obtained a decree in the high Court of .Chancery, in Virginia, to foreclose Ashton’s mortgage,-who, at the- time of such foreclosure-, was insolvent, and died so. The result of such sale is thus stated in the opinion of the Circuit Court, delivered in a subsequent stage of the cause.
    The. property mortgaged by Ashton, sold under dectee for (nett proceeds) $3908 46. ’
    The debt of Ashton was -------- - $9410 20
    He had a right to retain - -- -- -- - 3452 70
    Therea-1 amount of Ashton’s debt was - - - $5957 50 Hammond’s claim was - 5179 05
    Amount rec’d by Hammond’s mort.to executors - $778 45
    At some period between 1819 and 1823, the executors-addressed a circular letter to each of the legatees, who had by this time become very numerous, expressing á desire to close their executorial duties, and -stating that a- difficulty existed in the mode of calculating interest. They say, “there are but two modes by which our objects can be attained — a reference of the accounts to arbitration, or a suit; the former we should prefer, as most consonant with the injunction of our testator, if it were not attended by insuperable difficulties, on account of the dispersed situation of the legatées, who consequently could scarcely be expected to agree upon the arbitrators; we therefore propose that the legatees should concur in instituting an amicable suit, in chancery against us, to which we will immediately file an answer, and obtain an order of reference to the master, to adjust and report the precise sum to which each légatee is entitled; which being done, we can proceed with safety to pay such sums as fast as the money comes to our hands.”
    In 1823, the legatees, in conformity with the above suggestion, filed a bill in the Circuit Court for the District of Columbia, which the executors immediately answered, admitting the existence of a balance to be distributed, and submitting to any decree which the, court might think proper to pass. A special auditor was appointed to state the accounts of the parties.
    In 1825, the executors filed a cross bill, alleging that all the parties were not in court, and praying that they might all be brought in. The proper proceedings were accordingly had as to the absentees, and in 1826 the Circuit Court passed a decree directing the sums to be paid to the several legatees, with the ex-' ception of the administratrix of Thomas Hammond and of Burdett Ashton. The auditor stated the account of Hammond upon two .different-principles; in one,giving him credit for $5178 68cents, a distributive share, and charging him with $4.006 24 cents, the gross amount of the proceeds of the mortgage sale; and bringing the executors in debt to Hammond upwards of $4000: in the other, giving him credit for the same sum, but charging him with the balance of the debt due by Ashton, bringing him in-debt to. the executors upwards of $2000. The Circuit Court adopted the latter, and decreed that the administratrix of Hammond should pay to the executors the sum of $2158 56 cents, with interest on $1127 27 cents, the principal sum due, from .the 1st day of June, 1824.
    From which decree, the administratrix appealed to this court.

      Coxe, for the appellant.

      Jones, for the appellees.

       In the progress of the cause, G. W. Hammond also died, and his administratrix became a party; but the suit having been an amicable one, .this did not delay 'the proceedings. It is mentioned only because sometimes the one and sometimes the other is spoken of as the person interested.-

   Mr. Justice Daniel

delivered the opinion of the court.

This is the case of an appeal from a decree of the Circuit Court of the United States, for the District of Columbia.

This suit was originally of an amicable character, and ivas instituted at the request of the executors of General George Washington, by the legatees under his will, with a view to a definitive settlement of the accounts of the executors and a distribution of the estate. Subsequently.to its institution, k cross bill was filed by the executors for the purpose of covering some of the legatees, who had been omitted in the prior proceedings, and the two causes were prosecuted and decreed upon as one suit. .The faets out of which the questions now presented for consideration have arisen, are substantially the following.

General Washington, after having disposed of a portion of his estate, devised all the residue of his real and personal property to be sold by his executors, if it could not be equally and satisfactorily divided, and directed the proceeds to be divided into twenty-three equal shares, and distributed by shares and parts of shares, amongst twenty-nine persons named, and others not named, but designated by -r. collective description. Amongst those hairing an interest in the estate was Mildred Hammond, the wife of Thomas Hammond, in whose right the appellant claims one share o'f the twenty-third- part of the residue. After a previous distribution by the execütors oí #7000, the amount arising from further sales, and .remaining for distribution at the commencement of this suit, was near #120,000.

Several of the residuary legatees became purchasers at the sales made by the executors, some for more, others for less than their shares or parts of shares to which they'were entitled. They gave securities for the amount of their purchases, as other purchasers would have been required to do, with an understanding that their several shares of the estate, when ascertained, should be credited against the sales respectively made to them.

• Among those legatees who purchased to an amount exceeding their shares was Burdett Ashton, Avho was entitled to one-third of one share.in his ovvn right, and to one other third of a share in right of a sister, together equal to two-thirds of one-twenty-third or full share of the residuum subject to distribution.. This interest of Ashton was subsequently ascertained to be .#3425 20 cents. He purchased -property in June, 1803, to the amount of $9410 20 cents, payable in three annual instalments; and for. securing this debt, with interest from the date, executed to the executors a mortgage on the 12th day of March, 1805.

Thomas Hammond (the husband of the legatee, Mildred Hammond) obtained from the executors an assignment of the mortgage from Ashton for the #9410 20 cents, and executed to them a,n' obligation to account for any surplus which he might receive from Ashton’s mortgage, bey<5nd the share of Mildred Hammond, amounting to #5179 50 cents-after crediting .Ashton with two-thirds of a share to which he was entitled. The consideration for the assignment to Hammond is stated to be one dollar in hand paid, but principally on account” of the share of his wife ' in the residue of-General Washington’s estate; and they bargain, sell, and assign to the said Hammond, his heirs, &c., all the right, title, interest, estate, claim, and demand of the executors to the • within-mentioned land and premises, and to the deed within mentioned. At the foot of the assignment is a memorandum, that the executors are not to be personally liable in any respect, or on any. pretence, for or by reason of the above assignment,” and further, “ that the within named Burdett Ashton, his heirs, &c., shall have credit for his proportion, and for the proportion-•of his sister,” in one share of the residuum of the-estate, &e.

Within less than a month after receiving an assignment from the executors, Hammond assigned Ashton’s ’mortgage to Smith, Buchanan and Calhoun, in consideration of a debt due from him jo them. These last assignees filed their bill in the Supreme Court of Chancery in Virginia, to foreclose Ashton’s mortgage, and to this bill the executors of Washington were- made parties defendants. In their answer these executors admit the interests of Hammond and Ashton in the estate of their testator, the assignment by them to Hammond of Ashton’s mortgage, and they ask nothing on their own account except this, that as certain funds of the estate upon the basis of which Ashton’s proportion, had in part been calculated, might turn out to be unavailable, he, Ashton, might be required to indemnify the executors against such a contingency.

The settlement of Ashton’s account having been by the Court of Chancery referred .to the master) a large balance was reported as due from Ashton on the mortgage, after allowing him a credit for his own and his sister’s shares df a legatee’s proportion. The court decreed a foreclosure of the mortgage, and a sale of the mortgaged premises to raise the'balance due from Ashton. The sale made under the decree produced a sum considerably less than the amount of the debt from Ashton to the executors of Washington.

In the record in this cause are found accounts stated under orders of the Circuit Court between the executors of Washington and the distributees, under the will of their testator. In the account of Burdett Ashton, after crediting him with the proceeds of -the mortgage sale, a balance is struck against him of @6197 70. The account with Hammond is stated under two aspects; under the first, in which he is charged with the nett proceeds only, of Ashton’s mortgage, he is a creditor, by the sum of @4084 30 cents; under the second, in which Hammond is charged with the entire balance due from Ashton, without regard to the actual proceeds of the. mortgage, he is made a debtor. The Circuit Court, upon the hearing of this cause, being of the opinion that. Hammond was absolutely bound to the executors of General Washington for whatever amount the mortgage debt of Ashton exceeded the share of Mrs. Hammond as a legatee, notwithstanding the failure of the mortgaged premises to produce the amount of the debt for which they were pledged; decreed, in conformity with the second statement of the master of Hammond’s account, (No. 11,) that the administratrix of Hammond, out of the assets in her hands to be administered, should pay to the executors of George Washington the sum of @2158 56 cents, the balance appearing to be due to them by statement No. 11, with interest on @1027 27 cents, the principal sum due from the 1st day of June, 1824.

The basis of the above decree of the Circuit Court, and it is the foundation.on which the argument for the appellees has been conducted, is the assumption, that Hammond, in taking an assignment of Ashton’s mortgage from the executors of Washington, undertook to guaranty the sufficiency of the mortgage subject to extinguish the amount for which that subject was pledged, and bound himself absolutely to be accountable for that entire sum.

It is difficult to reconeile such a course ón the part of Hammond with rules of common prudence or probability, nor can a claim to power in the executors to make such an exaction upon Hammond be viewed as consistent with fairness, or as called for by any obligation incumbent upon these executors. Hammond knew, when he took the assignment of Ashton’s mortgage, that he was entitled to $5179 50 cents, admitted by the executors to be in their hands, or within their control. This is apparent, and is expressed both in the memorandum-required by the executors to be appended to their assignment of Ashton’s mortgage, and in the separate instrument of indemnity executed to the executors by Hammond, upon his receiving that assignment. Under such circumstances, what rational inducement could exist on the part of Hammond for binding himself for the' solvency of Ashton, or for substituting himself with the executors as a debtor in Ash-ton’s place ? The court can perceive no such inducement, nor can recognise any right in the executors to require any thing of this kind, with a full knowledge, on their part, of Hammond’s interest in the estate, and with an admitted fund in- their hands for its satisfaction. They had no power to impair in any degree his claim upon them, nor to impose a mean for its payment, less certain and safe than the assets acknowledged ^y them to be adequate. It is laid down by the Circuit Court, and insisted on in the argument here, that the terms of the assignment to Hammond, as well as those of the instrument of indemnity given to the executors upon receiving that assignment, constitute an agreement that Hammond should be unconditionally bound for Ashton’s debt. We have shown that this conclusion is in accordance neither with prudence nor probability, in the transactions of life — that it was not sustained by any duty, or even by fairness-on the part of the executors; let us see how far it is warranted by fhe language of the instruments referred to as amounting to express and positive contract, In the written assignment to Hammond, this is the language used: “ Have bargained, sold, assigned, &c., all the right, title, &c., in and to the within-mentioned land and premises, and the deed within mentioned,”. &c. Such terms were indispensable in that assignment, in order to give to Hammond -control of the mortgage, either for its enforcement in his own behalf or for its transfer to others: nothing is said, in terms, in this assignment, about the debt intended to be secured by the mortgage, neither in relation to any full equivalent for it, received by Hammond, which should bind him for it in toto, nor in relation to any entire and absolute transfer of it by' the executors; and this surely was the place in which such terms, or conditions, if they really belonged to the contract; should have been expressed. The view here presented is fortified by the instrument of indemnity executed by Hammond to the executors contemporaneously with the assignment by the latter to him of Ashton’s mortgage. This instrument, of indemnity, after reciting that the executors had assigned, &c.,-a deed due them, from Ashton, specifying no sum, no debt in numeris; after reciting too that Ashton was entitled to a portion of the assets, proceeds thus: “ And whereas it is supposed that the amount of the said debt due from Burdett Ashton, after making the discounts aforesaid, to which he may be entitled, will exceed the said .sum of $5179 50 cents, due to the said Thomas Hammond, as agreed; for which excess, the said Thomas Hammond is willing to give security; now if the said Thomas Hammond shall well and truly pay, &c., such sum as the debt due from the said Burdett Ashton, shall exceed,” &c. , This portion of the instrument, beginning, “ whereas it is supposed that' the amount of the debt due from Ashton, after making the discounts to which he is entitled,” &c. forcibly elucidates the meaning 'and-objects of the parties to that contract. The amount of Hammond’s interest in the estate, the amount too of Ashton’s debt, to the executors, and of the portion claimed in his own right, and in right of his sister, were all known. With regard to these, then, there was no uncertainty. The supposition, therefore, expressed in this instrument could have no applicability to matters thus ascertained; that supposition could have been designed to apply only to the contingency of the mortgage subject producing a sum greater than the distributive share, of Hammond in the estate; in which event, he was to be responsible for the excess, and for nothing beyond it. This provision cannot be correctly interpreted as binding Hammond, however inadequate the mortgage subject might prove to meet his share of the assets, to carry into the' estate and pay to the executors a sum he never had' received, and which, from the nature of things, he could not possibly receive; in other words, to pay to these executors his own money. Upon taking an assignment of Ashton’s mortgage, Hammond was bound for good faith and ordinary diligence in prosecuting it. These obligations appear to have been fulfilled, for the executors who were made parties to the suit, for foreclosure take no exception to any thing that had been done or omitted in reference to the security they had transferred.

This court, therefore, while it will not decree against the executors the difference between the proceeds of Ashton’s mortgage and the distributive share of Hammond, as stated in the report of the master, is very clear that Hammond can upon no correct principle be held responsible to the executors for the difference between those same proceeds and the amount of the debt due from Ashton, which the'.mortgage was designed to secure; and that in decreeing against the administratrix of Hammond for that difference, .the Circuit Court has committed an error for which its decree should be reversed.

This court doth accordingly reverse the decree of the Circuit Court,.with costs, and remand this cause thereto, to be proceeded in conformably to the principles of this decision.

OKDJER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria, 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 r'emanded to the said Circuit Court, with directions to proceed therein conformably to the opinion of this court.


author: Mr. Justice Catron

text:
    The United States, Appellants, v. Domingo Acosta, Appellee.
    The certificate of the secretary of the’ Spanish governor of Florida is prima fade evidence of the existence of a grant of land.
    The Spanish governor had authority to issue such a grant.
    . In the case of a grant made before the 24th of January, 1818, it is valid, although the survey was not tnadé until after that day, provided'the’survey was made before the exchange of flags.
    It is not a good objection to such a-grant that the metes and bounds were not • set forth.
    The facts in this case are fully set forth in the opinion of the court.
    It was submitted by Mr. Legaré, the attorney ¡-general, without argument, on the usual obiections assigned, pro forma, for error.
   Mr. Justice Catron

delivered the opinión of the court..

This is an appeal from the decree of the Superior Court of East Florida, confirming eight thousand acres of land to Domingo Acosta, under the acts of Congress for the adjustment of land-claims in Florida.

The claim is founded on an alleged petition of Acosta, dated May 2,1816, and a decree of Governor Coppinger thereon, dated the 20th day of the same month and year. The petition (record 8) sets forth: That by the. certificates which he presented, signed by the commandants of Fernandina, who had governed it successively since 1808, his excellency would be informed that he had been a permanent resident of the said town, engaged all the while in commerce, and had served (in all that had offered itself) the wishes of the government for the good of the province ; and that he had been particularly prompt with his person, his funds, and his irlfluerice, for the defence,'the support, and the advancement of the'town; and that ¡he .hád at no time had any stipend, recompense, or remuneration, of his experises, supplies, and losses, and' had refrained from importuning the government with, solicitations. He therefore prayed for a grant in property, of eight thousand acres; but as he was ignorant of the lands that were vacant, and desirous to avoid interference and dissensions with any person, he further prayed his excellency would be pleased to grant them at the places where the surveyor-general might survey them as vacant lands!

The decree (record 8) states, that “ in virtue of the certificates which this party presents, and it being the will of the sovereign that the merits of his subjects should be rewarded, the lands solicited in this instance are granted, with special charge to the surveyor-general to survey them to him without injury to third persons.”

The originals of the petition and decree were not produced in evidence, neither are they to be found in the archives at St. Augustine. A certified copy, dated' 24th June, 1816, under the hand of Thomas de Aguilar, secretary of the government, stated to be faithfully drawn from the original in his office, was alone offered, and was objected to on the part of the appellants.

The appellee also offered the following plats and certificates of survey, purporting to be made;by George J. F. Clarke, surveyor-general of the province:

No. 1. Dated 12th January, 1818, for one thousand acres of land, on Bowlegs’ old plantation, and situated northwardly and contiguous to the same Bowlegs’ prairie, westward of Payneston.

No. 2. Dated 15th January, 1818, for one thousand five hundred acres of land, in the hammock called Jobbin’s hammock, southwestwardly of the road called Ray’s trail, leading from the natural bridge of - the Santa. Fe, to the point of Alachua called Hogtown.

No. 3. .Dated 14th February, 1818, for one thousand five hundred acres of land, northward of Dunn’s creek, running from Dunn’s lake to the river St. John.

No. 4. Dated 20th January; 1S20, for four thousand acres of land, on the west side of Indian river, and at a place called Flounder creek.

After hearing testimony as to the manner in which muniments of title were kept in the archives at St. Augustine, the court made a decree confirming.the four several tracts of land to the claimant, from which decree the present appeal is taken.

On the part of the United States, it was contended that the said decree ought to he reversed, on the following grounds:

1. That there is not sufficient evidence to show that Governor ■ Coppinger ever made the alleged concession or grant.

2. That if Governor Coppinger made such a grant, it was . made without authority.

3. That there is no description whatever in the said pretended ■ grant, of the’ lands alleged to be granted, and no valid survey could be made so as to sever any lands from the public domain.

4. That there is no evidence of the surveys.

The' foregoing statement, offered on part of the United States, -presents the facts of the case; and the objections to the decree below.

In answer to the first, that there is not sufficient evidence the grant was made, we refer to the case of Wiggins, (14 Peters,) which determines that the official certificates of the secretary Aguilar was prima facie proof of the existence of the original grant at the date when the copy was made; and of its contents.

• ■ In this case, Alveraz proves the certificate of the secretary genuine, and that he was in’ office at the date of the certificate. It was’ in proof that no' original could be found in the proper office where it should be on file. This was sufficient to let in a •copy; and there being no. proof to contradict, or impair the force of Aguilar’s certificate, the court below properly held, that the grant had' been made by Governor Coppinger.

, To the second objection, it is sufficient to say — that the governor, as.the king’s deputy, was the sole judge of the merits on which the claim is founded, and had undoubted power to reward the merits of the grantee’; so this court has held in ihany cases.

3. Although there is no description of any place where the land granted shall be located, in the governor’s decree; still it was binding so far as it went. The surveyor-general' was' ordered to survey the lands solicited, on places' vacant, and without injury to third persons.. The acts of this-subordinate officer came in.aid of the decree; he had the authority conferred to séver the land granted from the public domain: had he done so before the 24th of January, ISIS, then there could be no doubt the grantee took title to the particular lands; because, up to .this date, all grants made by the King of Spain, in whatever form, are recognised as valid by the article of the treaty. The difficulty in this case is, that two of the surveys weré made after the 24th of January, 1.818: and, did the grant take effect from the date of the surveys, then, by the stipulations of the 8th article. it would-be void. This .question was first presented in Sibbald’s case,.10 Peters, 321. It was thought by this court, that the 8th article of the treaty operated on grants made by the governor after the 24th of January, 1818, but not on the subordinate acts of the surveyor in giving effect to the grant; and that .surveys could be made. at. ány.time before the change of’ flags between this-government and that of Spain. Still, Had that officer failed to make the surveys, the grant would not be binding .on this govern-ment. We followed the case of Sibbald in .that of Clarke v. Atkinson, at the last term, 16 Peters, 231. This construction was given to the 8th article of the treaty, in a spirit of liberality to this description of claimants, who.'could not be held justly responsible ' for the delays of the surveyor-general; and because the incipient claim, by the governor’s decree, was not cut off by the treaty. The surveyor-general having executed the governor’s decree, we are of opinion that the surveys made after the 24th of January, 1818, as well as those made before that date, are valid. That there are several surveys is no objection to their validity; the decree in this case obviously so contemplated.

4. It is objected, that no sufficient evidence is. furnished by the record that the surveys were made. The cause was first submitted to the court below, in 1834; then the two surveys last made were objected to and admitted by the court. The judge continued the cause on his own motion for further, proofs, and it stood over on continuances until 1840, when the four surveys were, read without objection. We think the proofs afithorized the decree, and order that it be affirmed.

ORDER.

This cause came on to be heard on the transcript of the record from.the Superior Court for the District of East Florida, 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 Superior Court in this cause be and the same is hereby affirmed, in all respects.


text:
    Joseph W. Walsh, Administrator of William Rector, deceased, v. The United States.
    This case came up, by writ of error, from the Circuit Court of the United States, for the district of Missouri.
   On the motion of the attorney-general, of counsel for the defendant in error in this cause, the plaintiff in error having been three times solemnly called by the marshal to come into court and prosecute this writ of error and failing to do so: It is thereupon now here considered, ordered, and adjudged, by this court, that this writ of error to the Circuit Court of the United States, for the district of Missouri, be and the same is hereby dismissed.


author: Mr. Chief Justice TANEY

text:
    Walter Smith, John Carter, William S. Nicholls and others, survivors of Clement Smith, deceased, Plaintiffs in error, v. Dennis Condry.
    When a collision of vessels occurs in an English port, the rights of the parties depend upon the provisions of the British statutes then in force; and if doubts exist-as to their true construction, this court will adopt that which is sanctioned by their own courts.
    By the' English statutes as interpreted in their courts, the master or owner of a vessel, trading to or from the port of Liverpool, is not answerable .for damages occasioned by the fault of the pilot.
    The«actual damage sustained by the party at the time and place of injury, and not probable profits at the port of destination, ought to be the measure of value in damages, fn cases of collision as well as in cases of insurance.
    By whose fault the accident happened, is a question of fact for the jury, to be decided by them upon the whole of the evidence.
    This cáse came up, by writ of error, from the Circuit Court of the United States, for the District of .Columbia, and was argued at January term, 1842. The court held it under a curia advisare vult, and -pronounced their decision at the present term.
    The facts in the case were these.
    The plaintiffs in error, who were also plaintiffs in the court below, were the owners- of a vessel called the Francis Depau, which was lying in the port of Liverpool, on the 15th of' February, 1838, loaded and ready for sea. The barque Tasso, owned by the defendant, in coming out of the docks, ran foul of the Francis Depau and occasioned considerable damage. A suit was brought in consequence, and upon the trial the verdict of the jury was for the defendant. The following bills of exception were taken by the plaintiffs, upon which the case was brought up.
    -Plaintiffs’ first bill of exceptions:
    In the progress of this cause, the plaintiffs having offered evidence to pro ye that on the 15th of February, 1838, the barque Tasso, the property of defendant, in coming out of the dock at Liverpool, on her way to sea in the prosécution of her homeward voyage to the United States, ran foul of and occasioned damage to the Francis Depau, a ship belonging to plaintiffs, and inflicted damage and injury upon the vessel of the said plaintiffs; and having further gbien evidence tending to prove that said collision was the result of unskilful management on the part of the Tasso.
    The defendant gave in evidence the statutes of 37 Geo. 3, c. 78; 52 Geo. 3, c. 39, and 6 Geo. 4, c. 125; and further proved that there was on board the Tasso, at the time of her moving from the dock and until after said collision, a regularly licensed pilot of said port of Liverpool; that the said vessel was under the management and direction of said pilot, and that the directions and orders of said pilot were followed and obeyed on board said vessel, thé Tasso; that the master of the Tasso was not on board her during the time of her moving from said dock into the river; and that such absence of the master was usual and customary on such occasions.
    The defendant upon said evidence prayed the court to instruct the jury, that by the true construction of the statutes of Great Britain, 37 Geo. 3, c. 78; 52 Geo. 3, c. 39, and the 6 Geo. 4, c. 125, produced on the trial, the defendant is not responsible to the plaintiffs in this action for any damage occasioned by the default, negligence, or unskilfulness of the pilot proved ,to have been on board, the Tasso; which opinion the court gave as prayed, tio which the plaintiffs, by their counsel, excepted.

      Plaintiffs’ second bill' of exceptions.
    In the trial of this cause the plaintiffs produced a- competent witness, and offered to prove that the ship of the plaintiff, mentioned in the declaration, at the time of the injury complained of, was loaded with salt and ready to sail for the Georgetown market, arid that if the ship had then sailed she would in due course have arrived in Georgetown (as was intended when her lading was taken in) in due time for the sale of the cargo at the fishing sea- . son of the Potomac river, when there is a great demand for salt; and that the loss occasioned by the injury in the delay of the vessel, preventing her arrival till after the fishing season, as she was compelled to unload and take in another cargo of salt, amounted to between 10 and 11 cents per bushel, making the loss in the whole cargo $2101 20, and contended that they should be allowed to give, this evidence and to recover damages for the said loss, estimating the salt by the price at Georgetown in the fishing season when the vessel would have arrived.
    But the court refused to allow the said evidence to be given by the plaintiffs, to which the plaintiffs, by their counsel, excepted.
    Plaintiffs’ third bill of exceptions.
    And the plaintiffs having, after the foregoing evidence, farther offered evidence to prove that it is the usage of vessels coming out of the docks of Liverpool into the river to have their anchors slung in a tackle ready to be thrusfpver the bows, and in a situation to be dropped immediately on passing through the lock connecting the lock with the basin, and before passing from the latter into the river; that the anchor was not put over the bow nor atternpted to be so done in the present, case, on board the Tasso, until this vessel had passed into the river and was approaching the Francis Diepau'; and the defendant having offered in evidence the deposition of Frederick Lewis to prove that the Tasso, in passing from the basin through the piers thereof into the river had the said vessel in check by a hawser extending therefrom'to one of the said piers, which hawser parted as the vessel cleared the pier head, and that the fish pennant or tacklé suspending the anchors of said vessel broke in the attempt to get them'over.the bow of the vessel as aforesaid, and they thereupon fell' upon the deck of the vessel; and the plaintiffs having further offered evidence by the pilot of the Francis Depau, to prove that defendant’s ■ vessel appeared badly furnished, and that the mate thereof (the master being absent) at the time, declared that he had not a rope ' on board fit to hang a cat.
    And in a further trial of this cause, the plaintiffs, after the depositions for the plaintiffs' and defendant were read, having offered evidence to show that in the management of a vessel when the. fish tackle breaks, and.it is important that.the anchor should be thrown out, that, it ought to be and can be accomplished in a short time by fixing another rope by a strop to the anchor and heaving it over the bows, and that such new fixture can be applied in a minute or two.
    And the defendant having offered the following prayer—
    “ That if the jury shall believe from the evidence that-the collision between the Tasso and the Francis Depau was occasioned by the breaking of her hawser and fish tackle, yet, from the said faets, the jury are not warranted in inferring that the said vessel, - the Tasso, at the time of her sailing, was unsea worthy,”
    The court gave the instruction as prayed, to which the plaintiffs, by their counsel, excepted. And the plaintiffs then prayed the court to instruct the jury, that if they believe from the evi-° dence. that the. collision took place as above stated, then such breaking of the said hawser and tackle is no excuse for the collision on the part of the defendants; which the court refused, to' which refusal also the plaintiffs excepted.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case arises from a collision in the port of Liverpool, between the barque Tasso, and the ship Francis Depau, in which the latter sustained’ considerable injury. The vessels were both American; the.Francis Depau being.owned by the plaintiffs in error, and the Tasso by the defendant.

It' appears from the evidence, that at the time the accident happened, the Tasso was in charge of -a regular pilot, leaving the Prince’s dock on her homeward voyage; and the Francis Depau was at anchor in the harbour, laden with salt, and ready to sail. And in order to prove that the injury arose from the.unskilfúl. management of the Tasso, the plaintiffs offered in evidence that it is the usage of vessels coming out of the dock’s of Liverpool into the river, to have their anchors slung in tackle, ready to be thrust over the bows, and in a situation to be dropped immediately on passing through the lock which connects the dock with the basin, and before passing from the latter into the river; and that the anchor of the Tasso was not put over the bow, nor was it attempted to be done, until she had passed into the river, and was approaching the Francis Depau.

The defendant then offered testimony to show that in passing from the basin, between the piers into the river, the Tasso was held in check by a hawser fastened to one of the piers, but that the hawser broke just as the vessel cleared the pier head; and the pilot perceiving that she was approaching the plaintiffs’ ship, thereupon gave orders to get an anchor ready. The anchors were accordingly fixed as soon as possible, in the manner that is customary in going out of the port; and an attempt was made to get one of them over the side, but the tackle broke, and both anchors fell on deck, and the vessel struck the Francis Depáu, and thereby occasioned the injury for which this suit is brought; that every thing was done on board the Tasso, according to the directions of the pilot, and every effort made to prevent the collision ; but that it was blowing fresh, and the tide setting towards the plaintiffs’ ship, and the Tasso would not mind her helm. .

To rebut this.testimony, the plaintiff offered in evidence, by the pilot, that the defendant’s vessel appeared to be badly furnished, and that at the time the accident happened, the mate who had charge of her under the pilot, (the master being absent,) declared that he had not a rope on board fit to hang a cat; and further offered, in evidence, that where the fish tackle breaks, and 'it is important that the anchor should be thrown out, it can be accomplished in a minute or two, by fixing another rope by a strop to the anchor, and heaving it over.the bows.

At the trial, several exceptions were taken by the plaintiffs to different instructions given by the cputt to the jury; and the verdict and judgment in the Circuit Court having been in favour of the defendant, the case has been brought here for revision by a writ of error sued out.by the plaintiffs. We proceed to examine. the directions excepted to, in the order in which they appear in the record.

Upon the evidence-above stated, the defendant asked the court to instruct the jury that under the statutes of Great Britain, of the 37 Geo. 3, c. 78; 52 Geo. 3, c. 39, and 6th of Geo. 4, c. 125, the defendant was not responsible for any damage occasioned by the default, negligence, or unskilfulness of the pilot. The court gave this instruction, and that is the subject of the first exception.

The collision having taken place in the port of Liverpool, the rights of the parties depend upon the provisions of the British statutes, then in force; and if doubts exist as to their true construction, we must of course adopt that which is sanctioned by their own courts.

The 52 Geo. 3, mentioned in this exception, is a general act for the regulation of pilots and pilotage, within the limits specified in the law, and requires the masters of vessels under a certain penalty to take a pilot, and provides that no owner or master shall be answerable for any loss or damage, nor be prevented from recovering on any contract of insurance, by reason of any default', or neglect on the part of the pilot. But this statute did not. repeal the previous one of 37 Geo. 3, for the regulation of pilots conducting ships into and out of the port of Liverpool; and the last-mentioned law required the master to pay full pilot-age to the first who should offer his. services, whether he was employed or not. This act did not, however, impose any penalty for refusal; and contained no clause exempting the master and owner from liability for loss or damage arising from the default of the pilot, where one was taken on board.

Upon these acts of Parliament, the Court of King’s Bench held, in the case of Caruthers v. Sydebotham, 4 Maule, and Selw. 77, that the master or owner of a vessel trading to and from the port of Liverpool, was not answerable for damages occasioned by the fault of the pilot. But in the case of the Attorney-General v. Case, 3 Price, 302, the same question was discussed in the argument before the Court of Exchequer, and it appears to have been the opinion of that court, that the master and owner were liable in the same manner as if the pilot had not been on board.

The'question, it is true, did no.t necessarily arise in the last-mentioned case, for the vessel was at anchor in the river Mersey when the disaster happened; and a vessel at anchor was not bound to have a pilot on board. If in that situation the master thought proper to employ one, the pilot was undoubtedly his agent,.and consequently he was responsible for his acts. But in deciding the case, the court-expressed their opinions on the two statutes of Geo. 3; before mentioned, in cases where pilots were required to be on board; and held that the provisions of the 52 Geo. 3, exempting masters and owners from liability,'did not extend to cases embraced by the local pilot .act for-Liverpool; and strongly intimated tha.t there was a distinction between the obligation to’ take a pilot under a penalty, and the obligation to pay full pilotage to the first that offered, whether he was taken or not.

Since these decisions were made in the King’s Bench and Exchequer, the 37th Geo. 3 has been repealed by the 5th of Geo. 4, and the 52 Geo. 3 has been repealed by the general pilot act of the 6th of Geo. 4; and these two statutes of Geo. 4 were the laws in force at the time of the collision in question. But although some changes were made in the Liverpool pilot act in the first-mentioned statute, and in the general pilot law by the second, yet in regard to the subject .now under, consideration, these two statutes are the same in substance with the preceding ones which they respectively repealed ; and'the adjudged cases above mentioned apply with the-same force to the question before us, as if they had been made since the passage of the acts of Geo. 4.

In determining, however, the true construction of these acts of Parliament, we are not left to decide between the conflicting opinions of the King’s Bench and Court of Exchequer.- The same question has since, on more than one occasion, arisen in thé British Court of Admiralty, and the decision in the King’s Bench has been constantly sustained; and we presume it is nowregard- . éd' as the settled construction of these pilot acts. Abb. on Ship. (Shee’s edition,) 184, n. z; The Maria, 1 Rob. New Admiralty Reports, 35; The Protector, 1 Rob. New Adm. Rep. 45; The Diana, 1 Rob. New Adm. Rep. We think, therefore, that the Circuit Court was right in .the first instruction given to the jury.

The second also is free from objection. The question there was as to the rule of damages in case the plaintiffs should show themselves entitled to a verdict. They offered to prove that if the ship had not been prevented from sailing by the injury complained of, she- Would in due course have arrived in Georgetown (as was intendéd when the lading was taken in) in time for the sale of her cargo at the fishing season, in the Potomac river, when there is a great demand for salt; that the. injury delayed her, and prevented her arrival until the season was over, and thereby made a difference of ten or eleven cents per bushel in the value of the salt at her home port, and occasioned a loss upon the cargo of $2101 20. The defendant objected to this testimony, and the court refused to admit it.

It has been repeatedly decided in cases of insurance, that the insured cannot recover for the loss of probable profits at the port of destination,.and that the value of the goods at' the place of shipment is the measure of compensation. There can be no good reason for establishing a different rule in cases of loss by collision. It is the actual damage sustained by the party at the time and place Of the injury that is the'measure of damages.

The third and last exception was taken to an instruction given • upon the prayer of the defendant, and also to the refusal of the court to give a direction asked for by the plaintiffs. The defendant prayed the court to instruct the jury, that if they believed that the collision was occasioned by the breaking of the hawser and fish tackle, yet from those facts the jury were not warranted in inferring that the Tasso at the time of her sailing, was unseawortliy; which direction the court gave. And thereupon the plaintiff prayed the court to instruct the jury, that if they believed the collision took place as above stated, then such breákingof 'the hawser and tackle is no excuse for it on the part of the defendant ; and this direction the court refused to give.

Now these two prayers involve the same principles, and are both liable to the same objections. By whose fault the accident happened was a question of faet to be decided by the jury upon the whole evidence before them. And the error in the prayer on the part of the plaintiffs, as well as that offered- by the defendant, consists in this, that it sought to withdraw from the jury the decision of the fact, and asked the court to instruct them, as a matter of law, upon the sufficiency or insufficiency of certain evidence offered to prove it; and both prayers are still more» objectionable because each of them asks the instruction upon' a part only of the testimony, leaving out of view various other portions of it which the jury were bound to consider in forming their verdict. If the collision was the fault of the pilot alone, then the owners of the Tasso are not answerable. But if it was altogether or in part caused by the misconduct, negligence, or unskilfulness of the master or mariners, the owner is liable. And if the equipments and tackle were in this case insufficient,' and not as strong and safe as those ordinarily used for such vessels in such cases, and thereby rendered the care and skill of the pilot unavailing, it was undoubtedly the fault of the master or owner; and is equally inexcusable as the omission to provide a competent crew. And it was- for the jury upon the whole evidence to say whether it was the result of accident, arising“from strong wind and tide, against which ordinary skill and care could not have guarded; or the fault-of the pilot; or the;misconduct, negligence, or unskilfulness of the crew; or the insufficiency of the hawser, ropes, or equipments with which the vessel was furnished. In the two first instances the owner of the Tasso is not answerable; in the two latter he is. The court, therefore, were right in refusing the direction asked for by the plaintiffs, but erred in giving the one before mentioned at the request of the defendants. And for this reason the judgment of the Circuit Court must be reversed.

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 Columbia, holden in and for the county of Washington, and was argued by counsel. . On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause, be and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo.


text:
    Richard B. Alexander, Plaintiff in error, v. Moses Graham, Defendant in error.
    In error to the Circuit Court of the United States for the District of Columbia, in and for the county of Washington.
   The plaintiff in error having -filed an order in writing, directing the clerk tó dismiss this suit, it is thereupon now, here, considered, ordered, and adjudged by this court, that this writ of error be and the same .is hereby dismissed with costs.